In nominating Judge Neil Gorsuch to the Supreme Court, President Donald Trump has united the Republican party, put Democrats on the defensive and ensured that the successor to the seat once held by Antonin Scalia, the Lion of the Supreme Court, not only reflected favorably upon his predecessor, but brings to the court the same conviction that the separation of powers is among the most important liberty-protecting devices of the constitutional design.
Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver was appointed to the 10th Circuit by President George W. Bush. He would bring a desperately needed sense of fairness and decency to the bench, and a temperament that suits the nation’s highest court.
Ramesh Ponnuru at National Review wrote in his article, Neil Gorsuch: A Worthy Heir to Scalia about many of the fundamental similarities between Gorsuch and the man he has been nominated to succeed, the late Justice Antonin Scalia:
A lawyer who clerked for both Justice Scalia and Judge Gorsuch sees parallels between the two men. Gorsuch is “a law-has-right-answers kind of guy, an originalist and a textualist,” he says. “He believes that the enterprise of law is real and worth doing and not just politics by other means.”
A low-profile 2012 case, U.S. v. Games-Perez, illustrates how Gorsuch has applied these views. At issue was a federal law that authorizes prison terms for anyone who “knowingly violates” a ban on the possession of firearms by a convicted felon. A precedent in the Tenth Circuit held that a defendant who knew that he had a firearm could be sentenced under that provision even if he did not know that he was a convicted felon. (In the case Gorsuch was deciding, Miguel Games-Perez had previously taken a plea deal that the presiding judge had misdescribed as an alternative to being “convicted of a felony.”)
Gorsuch participated in a panel of three of the circuit’s judges that affirmed the prison sentence. Gorsuch concurred in the result because he felt bound by precedent. At the same time, he made a powerful argument that the circuit’s precedent could not square with the text of the law. And when the case later came before the circuit, he urged it to reconsider that precedent.
The case brought together several strands of Gorsuch’s thinking. It demonstrated his willingness, shared with Scalia, to overturn a criminal conviction when a proper reading of the law required it. He paid close attention to the text and grammar of the law while expressing skepticism about letting legislative history guide his decision. “Hidden intentions never trump expressed ones,” he wrote, adding an aside about “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.” (Scalia was a foe of the judicial consideration of legislative intent for similar reasons.) And it showed, as well, his understanding that a judge must follow his duty even when it leads somewhere he dislikes. “He cared a lot about what the precedents are,” says the former clerk. “He was not interested in bending them or the usual tricks judges can use for getting around them if they don’t like them.”
Having a Justice Gorsuch on the Supreme Court would help to restore confidence in the rule of law, as his years on the bench reveal a commitment not only to judicial independence, but to the separation of powers. This is a clear and unambiguous record that gives the American people — including Senators on both sides of the aisle — absolute confidence that he will not compromise principle to favor the president who appointed him.
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