President Donald Trump made good on one of his most prominent campaign promises by nominating Judge Neil Gorsuch to succeed Justice Antonin Scalia on the United States Supreme Court. In response, many of my lawyer friends tweeted at me with gifs of people dancing in celebration. This was the appropriate response.
Judge Gorsuch is a Home Run
Judge Gorsuch has spent the last decade as a Judge on the Tenth Circuit Court of Appeals sitting in Colorado. He has earned a reputation as a brilliant legal mind, a crystal-clear writer, and a devotee of the jurisprudential philosophy most famously espoused by Justice Scalia: originalism. He studied with John Finnis (Robert P. George’s great teacher) and wrote a book on natural law arguments against assisted suicide. The natural implication of these facts is that, yes, he is pro-life.
But perhaps more exciting for fans of conservative jurisprudence is that Judge Gorsuch has evidenced a willingness to reexamine long-established precedent when it is in conflict with the original meaning of the Constitution. Last year, in a case called Gutierrez-Brizuela v. Lynch, Judge Gorsuch discussed at length how the kudzu-like growth of the regulatory state had been fostered by Supreme Court decisions like Chevron USA v. NRDC. Precedents like Chevron and its ilk have “permit[ted] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that [is] difficult to square with the Constitution of the framers’ design.” In light of the founders’ vision of our system of separated powers, Judge Gorsuch argued, the Supreme Court ought to reconsider its deference doctrines.
Originalist jurisprudence like this—refusing to perpetuate wrongheaded judge-made law from previous courts—may be unsettling to some, Judge Gorsuch conceded.
All of which raises this question: What would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce … We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change—except perhaps the most important things.
These are the words of a judge willing to overturn erroneous decisions. It is precisely this characteristic that has Senate Democrats expressing worries that Gorsuch may be willing to overturn Roe v. Wade. And worry they should, because Roe and its progeny are bad Constitutional law.
But it is noteworthy that even anti-Gorsuch Senators do not claim that he will substitute his policy preferences for the law as written. To the contrary, they know him to be a man with an actual philosophy. “A judge who likes every outcome he reaches is very likely a bad judge,” Gorsuch said at the announcement. Even Democrats like Obama’s Solicitor General Neal Katyal know that Judge Gorsuch is not a bad judge by his own measure.
More broadly, Gorsuch’s jurisprudence takes the separation of powers established by the Constitution is more than a friendly suggestion. Americans of all parties who fear a rise of an American autocracy, should welcome the elevation of jurist with a proven track record of rejecting executive overreach.
In sum, Gorsuch is something of a best case scenario. The Supreme Court and American law will be better because of his presence over the coming decades. President Trump may not have been exaggerating when he said he chose “the very best judge in the country.”
Judge Gorsuch was on “The List”
This nomination did not happen accidentally. The vacancy on the Supreme Court was an issue of immense importance in the Presidential election. As President Trump claimed. “Millions of voters said this was the single most important issue to them when they voted for me for President,” and again this was no exaggeration. In fact, according to publicly available exit poll data over 16 million Trump voters named the future of the Supreme Court to be the most important issue driving their vote.
As I noted in this space almost a year ago, the prominence of Supreme Court makeup in the election of our nation’s Executive is a sign of illness in our body politic. As Chesterton put, it is the sick who for the first time talk about health. “Vigorous organisms talk not about their processes, but about their aims.” The very fact that the American Electorate knows that the Supreme Court is important shows that something has gone dreadfully awry. Our constitutional order is unwell, and therefore we are carefully attending to restoring the dignity of “the least dangerous branch.”
Evangelical voters were particularly attuned to the necessity to save the Supreme Court. Many of them were concerned by Candidate Trump’s many flaws, but they chose to focus on Trump’s list of twenty-one potential SCOTUS nominees. Perhaps we could call this #ReluctantlyTrump group “Grudem Evangelicals” in honor of theologian Wayne Grudem who publicly articulated the positions that they privately held. Grudem first ruled out Trump as someone he would ever support during in the primaries; held out hope to the final moment that the nomination would swing to another Republican; talked himself into the idea that supporting Trump was morally good; blanched at the Access Hollywood tape and called for Trump to drop out; and, then, finally reconciled himself to casting a vote for Trump’s policies. Essentially, what Grudem meant by “policies” was mostly just the Supreme Court. In that final pre-election piece, Grudem devoted over 2500 words to the issue of the Supreme Court and just 1000 words to all other issues combined.
The unstinting desire to preserve the Supreme Court from slipping away for a generation formed the metaphorical bonds which bound Grudem Evangelicals to the mast and prevented them from responding to the siren calls of #NeverTrump despite how attractive those calls of #NeverTrump were to their ears. Stand on principle, they sang. The man has three wives, each one younger and more buxom than before, the crooned. You’re surrendering your moral credibility, they wailed. He won’t even appoint anyone good to the Supreme Court anyway, they cried.
This metaphor is stretching thin, but I’m indulging it because it depicts the emotional turmoil that churned in the breast of every Grudem Evangelical. Like the Sirens, #NeverTrump was beautiful, persuasive, and nearly irresistible. Grudem Evangelicals, lashed to the mast, desired nothing more than to steer the ship of state to those shores.
Aside: No, I’m not analogizing #NeverTrump Evangelicals to bird-like, flesh-eating monsters. The sincerity of the #NeverTrump holdouts has always been clear to me. Their deep-felt convictions created a bright line rule: all cooperation with Trump is evil. All arguments about lesser of two evils wilted against the heat of this refusal to complicit with empowering Trump.
Grudem Evangelicals and other similar #RelutctantlyTrump Republican voters played a crucial role in Trump’s victory. As New Yorker writer James Surowiecki put it, the press’ largest failure during the campaign was “its failure to understand college-educated GOP voters’ willingness to vote for anyone who wasn’t a Democrat.” #ReluctantlyTrump slunk along silently, ill at ease with the vote they would cast, but feeling compelled by the voice in the back of their heads saying, “… but the Supreme Court.”
Does Gorsuch’s Nomination Prove that #NeverTrump Evangelicals Were Wrong?
Given (a) how awesome of a Supreme Court Justice Judge Gorsuch will make and (b) how strongly Grudem Evangelicals wagered on the hope of getting an awesome Supreme Court Justice, it is entirely appropriate that Grudem Evangelicals take a victory lap this week. This, indeed, is the upside scenario.
However, it is important that Grudem Evangelicals not turn their exultation into an opportunity for recriminations against #NeverTrump. Leading #NeverTrump Evangelicals are equally thrilled with the elevation of Judge Gorsuch and there is plenty of room for them at the party. There are enough gifs for everyone.
Besides, the jury is still out as to whether the Grudem Evangelicals or #NeverTrump Evangelicals had the better of the prudential argument of voting for Trump to defeat Clinton. Despite this flawless SCOTUS selection, not everything in the first few weeks of the Trump Administration has gone off without a hitch (to say the least). Countless policy choices and hundreds of judicial nominations will be made in the coming 3.95 years. We’re still in the top of the first inning of the Trump Presidency, but Justice Gorsuch is a towering home run staking the home team to an early lead.