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Gorsuch Follows in Scalia’s Footsteps

by | Feb 1, 2017 | Columns, Law


President Trump, true to his tweet, announced at 8 p.m. Tuesday his nomination to fill the Supreme Court seat left vacant by Justice Antonin Scalia’s death.  Neil Gorsuch, presently on the United States Court of Appeals for the Tenth Circuit Court, is his choice.  He was on Trump’s list of likely nominees, and the President himself reminded us that he was keeping his word by picking from that list – released to the electorate before well before they went to the voting booths.  The issue has been front and center since the Republican-controlled Senate refused to advance then President Obama’s nominee, Merrick Garland.

Judge Gorsuch of Colorado, is the son of former EPA administrator Anne Gorsuch Burford.  He attended Georgetown Prep, Columbia undergrad, and Harvard Law.  Gorsuch then went on to achieve a degree very few lawyers and no Supreme Court Justices ever have, a Doctor of Philosophy in Law from Oxford.  After a decade in private practice before a brief stint at the Department of Justice, he was nominated in 2006 by George W. Bush to his current position on the Tenth Circuit.

While on the bench, Gorsuch has made a name as a prestigious Judge and is so considered by the current Supreme Court Justices, measured by the rate with which they hire his clerks.  Opinions may be stated for effect, but no Judge, let alone Justice hires a law clerk they don’t expect to be very good.  That Gorsuch’s clerks are well regarded by the sitting Justices speaks volumes about his work, training, and mentorship.

What about the meat?  What will he be like on the Supreme Court?  Justice Scalia said now that the “Supreme Court is essentially re-writing the Constitution term-by-term,” that it’s fine to have a great lawyer and such, but the “most important thing is, what kind of a Constitution will this person write?”  “Will he put in the things that I like, and take out the things that I don’t like.”  Well, it seems like a Justice Gorsuch will be very similar to Justice Scalia in both style and substance.

In a piece written on Scalia’s legacy after his death, Gorsuch says:

 [L]egislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

No Court observer could be faulted for mistaking those for Scalia’s own words.  The late Justice often spoke of a judge’s duty to judge the law as written based upon the Constitution as written.   In that same article, Judge Gorsuch talked about hearing the news of Scalia’s death while skiing, and of difficulty making it down the hill through his tears.

Little could he have known that he would soon follow directly in Scalia’s footsteps.


Read More From Scott D. Cosenza, Esq.

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