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.

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Posted by Keith Miller

Keith Miller is an Assistant Solicitor General in the Federalism Unit of the Arizona Attorney General’s Office. He is married and has four children. You can follow him on Twitter.

  • stan schmunk

    So, you agree with McConnell’s decision to not even meet with Garland?

    • Mr. Schmunk,

      Yes. As I explained in my post last year, the sad fact of the matter is that the transformation of the Supreme Court into a super-legislature has probably ended the era where a Senate controlled by one political party will confirm a SCOTUS nominee made by a President of the other political party. The last such even happened in 1991. Vacancies will remain unfilled until the next period of simultaneous control.

    • Keith Miller

      Mr. Schmunk,

      Yes, I agree with the strategy employed by Senate Republicans. As I explained in my post last year, the sad fact of the matter is that the transformation of the Supreme Court into a super-legislature has probably ended the era where a Senate controlled by one political party will confirm a SCOTUS nominee made by a President of the other political party. (The last such even happened in 1991.) Vacancies will remain unfilled until the next period of simultaneous control.

      • stan schmunk

        So, what was wrong with Garland and are you happy with this precedent? Would you be outraged if when the Dems had control of the Senate they did the same to a GOP president’s appointment?

        • Keith Miller

          I’m not “happy” with this precedent, but I am willing to acknowledge that a new norm has emerged.

          • hoosier_bob

            I’m not sure that a single instance represents a “norm.” Moreover, I don’t agree that this is likely to be repeated. If a Democratic President nominated a moderate like Justice Breyer, a number of Republican Senators would vote to confirm. I also expect that Judge Gorsuch may have made it through a Schumer-controlled Senate. After all, he is about the least controversial pick on Trump’s list. Trump could easily move on to someone like Judge Griffith, who would likely receive bipartisan support. Now that the Culture Wars have reached an end, I doubt that the Court will play as central a role in the coming decades as it has in past decades.

      • BWF

        So it sounds like your basis thesis is: “It’s okay to do it if you’re a Republican”. You’re not even trying to disguise the double-standard.

        • Keith Miller

          I believe that had Trump won and Chuck Schumer was leading a Democratic Majority in the Senate, the Scalia seat on the Court would have remained vacant indefinitely. Do you disagree?

  • hoosier_bob

    This article strikes me as more bluster than anything.

    As an initial point, originalism is something of a euphemism. The Constitution is not a statute or a contract, where all of the pieces are intended to fit neatly together. Instead, it sets forth broad principles that often lie in tension with each other. It is the job of the judiciary to balance those tensionsq. In that sense, originalism is often a call to return to a pre-Brown formula for balancing those tensions, when we were a much more homogeneous country and where the law generally tilted in favor of a culture that protected the political interests of straight white men. In my view, it is much better to acknowledge the Constitution’s inherent tensions and to resolve them by means that effect A pragmatic balancing of those interests in view of what we know at present, i.e., in the spirit of Justice Holmes, Jr., and Judge Posner. In my experience, the advocates of originalism often aren’t looking for a pragmatic, even-handed result, but are instead looking for a result that benefits the political interests of the conservative Christian tribe at others’ expense. That said, I don’t see Judge Gorusch as being quite as political in his originalism as Justice Scalia. He has no memory of the pre-Brown era, and likely feels no need to try to use the force of law to preserve it. I suspect that he will seek to preserve certain civil rights of religious people and groups from government intervention.

    On the other hand, I strongly applaud Judge Gorusch’s consistent textualism when it comes to statutory construction. Businesses and other private parties plan their activities based on what the law is. It will be good to have a Court that will continue to interpret the law as it is enacted.

    It is unclear where Judge Gorusch will fall when it comes to animus-based legislation. In general, he seems to take a strong view of protecting individual rights. Justice Scalia generally only took that view when the rights involved were neutral or beneficial to the conservative Christian tribe. That explains why he had no problem protecting the rights of criminal defendants, but turned a blind eye to laws intended to impose legal disability onto gays and lesbians. I see Judge Gorusch as being much more consistent in his protection of individual liberties. I could see him arriving at the same result that the Supreme Court did in Obergefell, but in much narrower (and probably more intelligible) grounds.

    Because, let’s face it, for evangelicals, this really is all about “the gays.” The mention of Robert George–a man who favors the recriminalization of gay sex–suggests that. I see Judge Gorusch as providing a robust defense of religious liberty. Even so, I don’t see him as someone who’s looking to hold onto the last vestiges of a Christianism.

    • Keith Miller

      hoosier_bob,

      I seem to recall from your earlier comments that you are an attorney. Is that right?

      What law school taught you that the Constitution was not “intended to fit neatly together” and the Judiciary gets to fill out the details? I’ve honestly never hear that explanation before. Why would the framers wait to list such an important branch until they’d already talked about the Legislative and Executive? Why’d they give the other branches the ability to remove jurisdiction from the Article III courts? That doesn’t really make sense.

      Surely you can recognize the non-trivial link between the Scalia/Gorsuch approach to statutory construction and their approach to constitutional interpretation. It is no euphemism for a judge to declare that his discretion is limited by the documents they are interpreting. Originalists believe that their assigned constitutional role is such that they should dislike some of their decisions, or else they are not being very good judges. What you call Holmes’ and Posner’s “pragmatism” provides no such check that makes the judicial function recognizably “judicial.” That lack of boundedness, that refusal to only look backwards, makes SCOTUS nothing more than our Nine Robe-Wearing Super-Legislators.

      Your idea that judges that adhere to originialist principles in interpreting the Constitution are just outcome-based realists hoping to advance a “conservative Christian tribe” smacks of psychological projection. You seem to think that interpreting the Constitution as it was written won’t give you your preferred policy outcomes, so you slander that philosophy as racist and homophobic.

      Have you honestly considered that originalists might actually, you know, mean it?

      • hoosier_bob

        I don’t think that my point is particularly novel. Constitutions, in comparison to statutes or contracts, set forth broad principles, typically with a degree of brevity. I’m not suggesting that judges aren’t bound to apply those principles within their limits. Indeed, they are so bound. Even so, specific factual situations may arise that place certain of those principles in tension with each other. Moreover, we come to an improved understanding of certain factual situations that lead us to see how we violated those principles with respect to certain persons in ways that were not apparent to us before. We are still bound by the principles, but not by our efforts at applying them to real-life cases and controversies.

        So, I accept originalism insofar as it supposes that judges are to be bound by the original principles underlying a specific constitutional provision. But that’s not what many social conservatives mean when they tout the merits of originalism. Rather, they also want the Court to be bound by how judges in the past applied those principles to specific social situations. But that’s not how the Court ought to interpret the Constitution. Chief Justice Marshall made that point in McCulloch. So, yes, the Court ought to be bound by the general principles of the Constitution as those general principles have been understood historically. But the Court cannot be bound by how past jurists have elected to apply those principles in specific social situations. Otherwise, we may still be living under the legacy of Plessy waiting for the legislature of Mississippi to repeal its Jim Crow laws.

        The issue of same-sex marriage before the federal courts presents a good illustration of this. I disagree with the legal reasoning of the Obergefell decision because it seems to create certain rights under the Due Process Clause that lie beyond the general scope of the principles underlying that provision. In fact, much the same could be set for most of the Court’s substantive Due Process jurisprudence since Griswold. After all, there is no fundamental requirement that states issue marriage licenses to anyone, let alone to same-sex couples. Even so, I find Judge Posner’s reasoning under the Equal Protection Clause in Baskin v. Bogan to be persuasive: It tracks closely with the facts of the case and stays within the general principles underlying equal protection. Looking back at Lawrence, I would argue that Justice O’Connor’s concurrence stayed true to originalist principles, while Justice Kennedy’s majority opinion departed from the Constitution altogether.

        So, whether I’m a Constitutional originalist depends in large measure on what one means by the term. If you mean that judges ought to remain true to the general principles set forth in the Constitution and apply them without respect to a litigant’s social place, then I’m an originalist. But if you mean that judges ought also to remain true to past applications of those general principles–even when those decisions were infected by bias against persons of certain social classes–then you can count me out. And it’s in this latter sense that evangelicals typically promote originalism, namely, as a tool for ensuring that socially disfavored minority groups cannot rely on the Constitution to undo legislation intended to keep them in a position of social disfavor. So, I reject a Constitutional jurisprudence that creates rights ab initio whenever it’s convenient to have a legal rule to support one’s political preferences. That said, I am in favor of a Constitution whose rights are provided freely to all without respect to social place. In that sense, I find myself in strong agreement with Justice Harlan, writing in dissent in Plessy:

        “But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

        Sadly, I believe that Justice Scalia often failed in this respect. I don’t think he intended to, just as I don’t think that the Plessy majority foresaw the injustices of Jim Crow. There is much good to be said about Justice Scalia’s jurisprudence, and I generally find myself agreeing with him on cases that don’t involve social issues. And that’s probably not because I disagree with the general legal rubric with which he approaches such cases (although it’s often difficult to see that rubric in dissents). I suspect that our disagreement lies in the fact I have a different set of life experiences, and may see injustices that are otherwise not apparent to a conservative white Christian man who came of age in the early 1950s. For example, as someone who’s had gay friends or colleagues for as long as I can remember, it’s easy to see that criminalizing gay sex imposes a legal burden on gay people that inherently places them in the lower levels of a de facto caste system with respect to straight folks. I doubt that Justice Scalia had such life experiences, and was therefore blind to the inherent inequality embodied in laws such as the one struck down in Lawrence.

        So, I do believe that some of Justice Scalia’s decisions tilted in favor of privileging white conservative Christians. I don’t think he intended to do that. I just think that he was often blind to the plight of those who are members of socially disfavored minority groups, or had certain misconceptions about members of those groups. Thus, I view Justice Scalia’s dissents in cases like Lawrence, Windsor, and Obergefell as outliers, and as cases in which he failed to be true to his judicial philosophy. A younger jurist with gay friends and colleagues having the same judicial philosophy may well have arrived at the opposite conclusion in each of those three cases, even without embracing the unmoored legal reasoning of Justice Kennedy. In my view, Justice Scalia’s hostility to gay rights had less to do with his judicial philosophy and more to do with his inhabiting a conservative Catholic social world that was largely devoid of openly gay people. There is no reason to believe that Judge Gorsuch–who does not inhabit a similarly limited social world–wouldn’t concur with the majority in cases like Lawrence, Windsor, and Obergefell.

        If the Hobby Lobby case tells us anything, it’s that Judge Gorsuch is a staunch defender of individual liberty, including those liberties of socially disfavored minority groups. Justice Scalia could at times–perhaps unwittingly–be a pro-Christian partisan. I don’t see that reflected in Judge Gorsuch’s opinions. If evangelicals are looking for a consistent originalist who will apply the law evenly to all without regard to social status, then they have found their man. If, on the other hand, they’re looking for a pro-Christian partisan who’ll twist the law to maintain our nation’s historic (but fading) bias in favor of white conservative Christians, then they’re likely to be disappointed. Unfortunately, I’m guessing that most evangelicals are looking for the latter.

    • stan schmunk

      No, for evangelicals it’s about abortion first and foremost.

  • RustbeltRick

    The gushing over Neil Gorsuch is just like the gushing over John Roberts. I mean, it’s almost word for word.

    And all the talk of “originalism” is nonsense. It’s amazing how the “originalists” always side with the zillion-dollar corporations when there’s a ruling on a river that’s been poisoned. Please don’t tell me your zeal for protecting the business class results from some pure reading of the Constitution.

    • Keith Miller

      Actually, Mr. RustbeltRick, the parallel between Roberts and Gorsuch doesn’t really hold up as well as you may think.

      Roberts was hailed as brilliant, but there were complaints/murmurings from conservatives about his short paper-trail. Though Roberts advancecd the “judges call balls and strikes” at his confimation hearing, there weren’t dozens of cases where he had demonstrated that philosophy in action. And, yes this matters, he wasn’t a Federalist Society guy.

      Gorsuch is a FedSoc guy. Gorsuch’s legal philosophy has been on display much more publicly and for a longer period of time. Roberts has turned out to be almost exactly what George W. Bush picked him to be. I can’t rate him as a “disappointment” even though I disagree with his reasoning from time to time. Gorsuch is better.

      • hoosier_bob

        I’m not sure how much one can read into Federalist Society membership. Whether people are members of the Federalist Society seems to depend a lot on the nature of the chapter at their law schools. After all, once you leave law school and hop onto the billable-hour treadmill, you have little time left to reconsider such commitments. I was a Federalist Society member my 1L year, and dropped out. The Federalist Society chapter at my law school was dominated by Religious Right-type social conservatives, who were primarily interested in things like opposing legalized abortion and civil same-sex marriage. As a social libertarian (as well as an economic libertarian), I elected not to go back. At other schools, the Federalist Society was made up mainly of libertarians. If that had been the case at my school, I probably would have maintained my membership.

  • MajorDude

    Pragmatism over character is a slippery slope. Ends justifying the means is not a Christian virtue. White evangelicals can never, with any integrity, defend or advance the idea that character is important.