Senate confirmation hearings began this past Monday for President Trump’s nominee, Neil Gorsuch, to replace the late Antonin Scalia on the U.S. Supreme Court. Despite intense questioning by Democratic senators, confirmation is expected, tilting the Court back to a 5-4 conservative majority.
Gorsuch’s academic credentials are outstanding. He graduated, Phi Beta Kappa, as an undergraduate from Columbia University; he received his law degree from Harvard University where he was a classmate of former President Obama; he obtained a Doctor of Philosophy degree in law (Legal Philosophy) from Oxford University where he met and married his wife Louise, an Englishwoman.
Gorsuch, now 49, clerked for U.S. Supreme Court Justices Byron White and Anthony Kennedy. Since 2006, the native Coloradian has served on the U.S. Court of Appeals for the Tenth Circuit based in Denver.
Gorsuch champions an originalist and textualist approach to jurisprudence, or the same as that by two of his heroes, Justices White and Scalia. Constitutional originalism and textualism insist that the role of judges is not to create law, as is the usual habit of the Supreme Court’s liberal majority for decades, but to apply the law as it was originally intended, leaving the task of creating, modifying, and eliminating laws to the legislative branch of government. In his 2016 speech at Case Western’s law school, Gorsuch defended his view of textualism and original intent, maintaining that it was the only standard for formulating legal verdicts, even in ambiguous cases. In that speech, he said: “I accept the possibility that some hard cases won’t lend themselves to a clear right answer”, but insisted, “even accepting some hard ones . . . it just doesn’t follow that we must or should resort to our own political convictions . . . “.
The above views of Gorsuch are virtually identical to those of Scalia, and it appears that he would be a jurist with whom most in the pro-life and pro-family movements would be comfortable. It should be noted that Gorsuch’s judicial philosophy rests heavily on natural rights theory – that is to say that the moral justification for our laws is to protect the self-evident, God-given (not human-given) rights exemplified by concepts such as “life, liberty, and the pursuit of happiness,” as stated in the Declaration of Independence and deduced from the common opinion of Western Civilization.
There are several decisions that illustrate Gorsuch’s judicial philosophy. He advocates a broad definition of religious freedom. In Hobby Lobby Stores v. Sebelius (2013) Gorsuch voted with the majority of the circuit court that declared the Afford- able Care Act’s contraceptive mandate on a private business violated the Religious Freedom Restoration Act which was upheld 5-4 by the Supreme Court. In Pleasant Grove City v. Summum (2007) he took the view that the government’s display of a donated Ten Commandments monument in a public park didn’t obligate the government to display other offered monuments – a view subsequently affirmed by the Supreme Court.
In two cases related to gender ideology and transsexualism, Gorsuch denied claims that transsexuals were a protected class under the law, and rejected arguments that male-to-female transsexuals had a right to gender discrimination protection as “women”, given that their bodies are biologically male.
Gorsuch, similar to most federal judges, upholds higher court decisions. He has even said that a jurist may even “make mistakes” in order to uphold a higher court precedent. However, it is uncertain if he, as a Supreme Court justice, will maintain Roe v. Wade (abortion) that gave “rights” not explicitly existing in the Constitution.