Neil Gorsuch profile: Staunch conservative with Trump’s backing
Supreme court pick wrote about liberals advancing ‘social agenda’ through courts
In a 2005 essay titled Liberals ’N’ Lawsuits, Neil Gorsuch, then a corporate lawyer in Washington, DC, argued that “American liberals” had come to rely too much on court decisions to advance “their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education”.
Published just months after the re-election of George W Bush, it was a remarkable bit of concern-trolling ahead of its time. If liberals really wanted to enact their agenda, Mr Gorsuch wrote, they should focus on “trying to win elections rather than lawsuits”.
Fast-forward 12 years. American liberals – and quite a few centrists too – have lost another election and many have once again turned their eyes to the courts, hoping for protection from what looks to many of them like a vicious attack by the executive branch on core rights and freedoms.
If Donald Trump has his way, Mr Gorsuch will be in a position this time to do more than just write an essay. If confirmed by the Senate as the newest justice on the US supreme court, he will have unique power to help vindicate or frustrate liberals’ strategy.
The announcement of Mr Gorsuch’s nomination in a hyped White House spectacle on Tuesday night was greeted with expressions of concern on the left and robust cheer on the right. Carrie Severino, chief counsel of the conservative Judicial Crisis Network, hailed Gorsuch as a “principled constitutionalist” with “an obviously brilliant legal mind”.
“He is someone who is going to look at any question according to what the constitution itself says, setting aside his own political views” whatever they may be, Ms Severino said.
A partisan scrum has developed around the nomination nevertheless, with Democrats vowing a filibuster and the Republican senate leadership vowing a confirmation. The air of partisan controversy is not obviously rooted in Mr Gorsuch’s track record as a circuit court judge, which does not include rulings on the kinds of hot-button social issues he alluded to in his Bush-era essay.
Mr Gorsuch’s disposition on abortion rights cases may be suggested in a line from a book he wrote about euthanasia, the subject of his doctoral studies at Oxford University. “To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends,” Mr Gorsuch wrote.
Nancy Northup, president and CEO of the Center for Reproductive Rights, said the onus was on the nominee to explain his position on the issue.
“Given president Trump’s promise to appoint a supreme court justice that would seek to overturn Roe v Wade, we need to know whether Judge Gorsuch would do just that,” Ms Northup said.
“Our constitution guarantees a woman’s right to safe, legal abortion. Any effort to gut those protections would harm the rights and health of women for generations to come.”
But beyond any single issue, Mr Gorsuch has articulated a judicial philosophy that emphasizes the primacy of the constitution and prizes the text of laws, while warning against judicial forays that might be mistaken for an attempt to shape or direct legislation.
“Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes,” Mr Gorsuch wrote in a ruling that argued for a new hearing for a felon convicted of firearm possession. “But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.”
In some ways Mr Gorsuch seems likely to please social conservatives. He has repeatedly upheld claims of a religious exemption where the law would compel an individual to violate a personal spiritual belief. While the supreme court declined to consider one such “religious liberty” case in 2016, in which a family-owned pharmacy objected to a state regulation forcing it to sell emergency contraceptives, future cases in the area seem likely.
In Hobby Lobby Stores Inc v Sebelius, Mr Gorsuch argued that a retail store owner need not comply with a provision in Barack Obama’s health care law requiring employers to provide health insurance covering oral contraceptives. In his opinion Mr Gorsuch gave wide berth to the Religious Freedom Restoration Act, which asserts the religious liberty claim and which Gorsuch called a “super-statute”.
Hannah Smith, a lawyer at the Becket Fund for Religious Liberty, which represented Hobby Lobby in the case, praised the judge’s ruling.
“That opinion is an example that he is a clear thinker, a clear writer on really complicated religious liberty issues,” Ms Smith told the Guardian. “They were faced with a Hobson’s choice, to choose to abide by their religion or saving their business. I think he’s someone who would stand up for the religious liberty for all.”
Elsewhere, Mr Gorsuch has ruled sympathetically in cases involving the erection of Ten Commandments monuments in public spaces and ruled against capital punishment defendants seeking relief from their sentences.
In the integrity of his adherence to the principal of judicial restraint, as well as in the pithy eloquence – if he lacks a certain acerbity – of his opinions, Mr Gorsuch is often compared favourably with the justice he would replace, Antonin Scalia, who died in February 2016.
“His writing style has often been compared to Justice Scalia’s,” Ms Severino said. “It’s very incisive, very clear and logical, but also very entertaining, and of course that was a hallmark of Justice Scalia’s own writing style.”
Mr Gorsuch spoke about Mr Scalia’s death in an April 2016 speech at Case Western University. “I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news,” Mr Gorsuch said.
“I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles.”
Mr Gorsuch’s biggest difference with Mr Scalia comes in the field of administrative law, an area that is sleepy for most laypeople but determines the scope of much government action. The Trump nominee has been a critic of “Chevron deference,” a doctrine that gives administrative agencies significant latitude with how they interpret federal statutes.
His views, which are shared by a number of conservative legal scholars, would significantly weaken the federal government and allow the courts to override agency actions on issues ranging from immigration to health care to the environment.
But several former colleagues of Mr Gorsuch’s from across the ideological spectrum have called for Mr Gorsuch’s confirmation, saying his temperament is distinctly different from Mr Scalia.
“Scalia’s writing seemed dismissive to the claims of gay rights,” said Melissa Hart, professor at the University of Colorado Law School who worked with Gorsuch. “Everything I know about Neil Gorsuch as a person leads me to believe he would not be dismissive of anyone’s claims, regardless of how he rules. I’m not saying I think he will rule in favour of LGBT rights but I don’t think he will be dismissive of anyone’s claims.”
Ms Hart said she believes Mr Gorsuch is “more than qualified to be on the supreme court”, echoing an op-ed in the New York Times by Neal Katyal, a former acting solicitor general under Barack Obama, that called for liberals to back Mr Gorsuch.
“I understand the political reasons for wanting to block the nomination,” Ms Hart said, “but I don’t think there’s a principled reason to reject Neil Gorsuch as a jurist.”
Mr Gorsuch was born on 29th August 1967 and grew up in Denver, Colorado. His family moved to Washington, DC, after Ronald Reagan nominated his mother, Anne Gorsuch Burford, to head the Environmental Protection Agency. Gorsuch attended Georgetown preparatory school, Columbia University, Harvard Law school and Oxford University, where he enrolled on a Marshall scholarship and earned a doctorate.
He fits the mould of every sitting justice on the US supreme court in educational pedigree: they all went to Harvard or Yale for law school.
Post-graduation, Mr Gorsuch worked for a decade representing mostly corporate clients at the Washington law firm of Kellogg Huber Hansen Todd Evans & Figel.
But Mark Hansen, the nominee’s former boss at the firm, told the Denver Post that Gorsuch was a “regular person”.
“He acts and relates well to all people, and he did the same sort of thing in trial, where he was very good at making connections with jurors,” Mr Hansen said. “He’s a regular person. It’s part of being a Westerner.”
At Oxford, Mr Gorsuch met his future wife, Louise Gorsuch, a UK citizen. With their two teenage daughters they lives outside Boulder, Colorado, where Mr Gorsuch indulges hobbies including fly-fishing, hiking and rowing.
After his 2005 essay subtly celebrating the re-election of George W Bush, Gorsuch got good news from the administration. He was to be appointed to the 10th circuit appeals court, which covers all or part of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
In 2006, when it came time for the Senate to review his nomination, Mr Gorsuch was confirmed in the most expeditious way possible, by a voice vote and encountering no objection.
This time may be different.