|Associate Justice of the Supreme Court of the United States|
April 10, 2017
|Nominated by||Donald Trump|
|Preceded by||Antonin Scalia|
|Judge of the United States Court of Appeals for the Tenth Circuit|
August 8, 2006 – April 10, 2017
|Nominated by||George W. Bush|
|Preceded by||David M. Ebel|
|Born||Neil McGill Gorsuch
August 29, 1967
Denver, Colorado, U.S.
|Relations||Anne Gorsuch Burford (mother)|
|Children||2, including Emma and Bindi|
|Education||Columbia University (BA)
Harvard University (JD)
University College, Oxford(DPhil)
Neil McGill Gorsuch (/ˈɡɔːrsʌtʃ/, with equal emphasis on both syllables; born August 29, 1967) is an Associate Justice of the Supreme Court of the United States. President Donald Trump nominated Gorsuch to succeed Antonin Scalia. Gorsuch is a proponent of textualism in statutory interpretation, originalism in interpreting the U.S. Constitution, and is an advocate of natural law philosophy.
Gorsuch clerked for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit from 1991 to 1992, and then for U.S. Supreme Court Justices Byron White and Anthony Kennedy, from 1993 to 1994. From 1995 to 2005, Gorsuch was in private practice with the law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Gorsuch was a Deputy Associate Attorney General at the U.S. Department of Justice from 2005 to his appointment to the Tenth Circuit. Gorsuch was nominated to the United States Court of Appeals for the Tenth Circuit by President George W. Bush on May 10, 2006, to replace Judge David M. Ebel, who took senior status in 2006.
- 1Early life
- 2.2Private law practice
- 2.3U.S. Department of Justice
- 2.4U.S. Court of Appeals for the Tenth Circuit
- 2.5Nomination to the U.S. Supreme Court
- 2.7 Nomination
- 2.8 Senate consideration
- 2.9Responses from organizations and notable person
- 2.10Legal philosophy
- 3Personal life
- 4Awards and honors
- 6See also
- 8Further reading
- 9External links
Gorsuch is the son of David Gorsuch and Anne Gorsuch Burford (née Anne Irene McGill; 1942–2004), a Colorado statehouse representative, who was appointed by President Ronald Reagan to be the first female Administrator of United States Environmental Protection Agency in 1981. A fourth-generation Coloradan, Gorsuch was born in Denver, Colorado, where he attended Christ the King, a K-12 Catholic school, and later graduated from Georgetown Preparatory School, a Jesuit school in North Bethesda, Maryland, in 1985.
He received his Bachelor of Arts degree in Political Science from Columbia University in 1988, where he was inducted into Phi Beta Kappa. He was also a member of Phi Gamma Delta fraternity. As an undergraduate student, he wrote for the Columbia Daily Spectator student newspaper. In 1986, he co-founded the alternative Columbia student newspaper The Fed.
Gorsuch attended Harvard Law School where he graduated cum laude in 1991 with a Juris Doctor. He received a Harry S. Truman Scholarship to attend. While at Harvard, Gorsuch was an editor on the Harvard Journal of Law and Public Policy. He was described as a committed conservative who supported the Gulf War and congressional term limits, on “a campus full of ardent liberals”. Former President Barack Obama was one of Gorsuch’s classmates at Harvard Law.
He received a Doctor of Philosophy degree in law (legal philosophy) from University College, Oxford in 2004 for research on assisted suicide and euthanasia. He attended Oxford as a Marshall Scholar and was supervised by acclaimed natural law philosopher John Finnis. While there, Gorsuch met and married his wife Louise, an Englishwoman and champion equestrienne on Oxford’s riding team.
Gorsuch served as a judicial clerk for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit from 1991 to 1992, and then for U.S. Supreme Court Justices Byron White and Anthony Kennedy from 1993–94.
Private law practice
Instead of joining an established law firm, Gorsuch decided to join the two-year-old boutique firm Kellogg, Huber, Hansen, Todd, Evans & Figel. Eschewing appellate briefs, he focused on trial work. After winning his first trial as lead attorney, a jury member told Gorsuch he was like Perry Mason. He was an associate in the Washington, D.C., law firm from 1995–97 and a partner from 1998 to 2005. Gorsuch’s clients included Colorado billionaire Philip Anschutz.
In 2002, Gorsuch penned an op-ed criticizing the Senate for delaying the nominations of Merrick Garland and John Roberts to the U.S. Court of Appeals for the D.C. Circuit, writing that “the most impressive judicial nominees are grossly mistreated” by the Senate.
In 2005, at Kellogg Huber, Gorsuch wrote a brief denouncing class action lawsuits by shareholders. In the case of Dura Pharmaceuticals, Inc. v. Broudo, Gorsuch opined that “The free ride to fast riches enjoyed by securities class action attorneys in recent years appeared to hit a speed bump” and that “the problem is that securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year”.
U.S. Department of Justice
Gorsuch served as Principal Deputy to the Associate Attorney General, Robert McCallum, at the United States Department of Justice from 2005 until 2006. During his time at the United States Department of Justice Civil Division, Gorsuch was tasked with all the “terror litigation” arising from the President’s War on Terror, successfully defending the extraordinary rendition of Khalid El-Masri, fighting the disclosure of Abu Ghraib torture and prisoner abuse photographs, and, in November 2005, traveling to inspect the Guantanamo Bay detention camp. Gorsuch helped Attorney General Alberto Gonzales prepare for hearings after the public revelation of NSA warrantless surveillance (2001–07), and worked with Senator Lindsey Graham in drafting the provisions in the Detainee Treatment Act which attempted to strip federal courts of jurisdiction over the detainees.
U.S. Court of Appeals for the Tenth Circuit
In January 2006, Philip Anschutz recommended Gorsuch’s nomination to Colorado’s U.S. Senator Wayne Allard and White House Counsel Harriet Miers. On May 10, 2006, Gorsuch was nominated by President George W. Bush to the seat on the U.S. Court of Appeals for the Tenth Circuit vacated by Judge David M. Ebel, who was taking senior status. Like Gorsuch, Ebel was a former clerk of Supreme Court Justice Byron R. White. The American Bar Association‘s Standing Committee on the Federal Judiciary unanimously rated him “well qualified” in 2006.
During his time on the Circuit Court, since 2008, Gorsuch has been a Thomson Visiting Professor at the University of Colorado Law School, teaching one course per semester, either ethics or antitrust law.
Freedom of religion
Gorsuch advocates a broad definition of religious freedom. In Hobby Lobby Stores v. Sebelius (2013) Gorsuch wrote a concurrence when the en banc circuit found the Affordable Care Act‘s contraceptive mandate on a private business violated the Religious Freedom Restoration Act. That ruling was upheld 5–4 by the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. (2014). When a panel of the court denied similar claims under the same act in Little Sisters of the Poor Home for the Aged v. Burwell (2015), Gorsuch joined Judges Harris Hartz, Paul Joseph Kelly Jr., Timothy Tymkovich, and Jerome Holmes in their dissent to the denial of rehearing en banc. That ruling was vacated and remanded to the Tenth Circuit by the per curium Supreme Court in Zubik v. Burwell (2016).
In Pleasant Grove City v. Summum (2007), he joined Judge Michael W. McConnell‘s dissent from the denial of rehearing en banc, taking the view that the government’s display of a donated Ten Commandments monument in a public park did not obligate the government to display other offered monuments. Most of the dissent’s view was subsequently adopted by the Supreme Court, which reversed the judgment of the Tenth Circuit.
Gorsuch has written that “the law […] doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance”.
Gorsuch has called for reconsideration of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), in which the Supreme Court instructed courts to grant deference to federal agencies’ interpretation of ambiguous laws and regulations. In Gutierrez-Brizuela v. Lynch (2016), Gorsuch wrote for a unanimous panel finding that court review was required before an executive agency could reject the circuit court’s interpretation of an immigration law.
Alone, Gorsuch added a concurring opinion, criticizing Chevron deference and National Cable & Telecommunications Ass’n v. Brand X Internet Services (2005) as an “abdication of judicial duty”, writing that deference is “more than a little difficult to square with the Constitution of the framers’ design”.
In United States v. Hinckley (2008), Gorsuch argued that one possible reading of the Sex Offender Registration and Notification Act likely violates the nondelegation doctrine.Antonin Scalia and Ruth Bader Ginsberg held the same view in their 2012 dissent of Reynolds v. United States.
Gorsuch has been an opponent of the dormant Commerce Clause, which allows state laws to be declared unconstitutional if they too greatly burden interstate commerce. In 2011, Gorsuch joined a unanimous panel finding that the dormant Commerce Clause did not prevent the Oklahoma Water Resources Board from blocking water exports to Texas. That ruling was affirmed by a unanimous Supreme Court in Tarrant Regional Water District v. Herrmann (2013).
In 2013, Gorsuch joined a unanimous panel finding that federal courts could not hear a challenge to Colorado’s internet sales tax. That ruling was reversed by a unanimous Supreme Court in Direct Marketing Ass’n v. Brohl (2015). In 2016, the Tenth Circuit panel rejected the challenger’s dormant commerce clause claim, with Gorsuch writing a concurrence.
In Energy and Environmental Legal Institute v. Joshua Epel (2015), Gorsuch held that Colorado’s mandates for renewable energy did not violate the commerce clause by putting out-of-state coal companies at a disadvantage. Gorsuch wrote that the Colorado renewable energy law “isn’t a price-control statute, it doesn’t link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters”.
In Riddle v. Hickenlooper (2014), Gorsuch joined a unanimous panel of the Tenth Circuit in finding that it was unconstitutional for a Colorado law to set the limit on donations for write-in candidates at half the amount for major party candidates. Gorsuch added a concurrence where he noted that although the standard of review of campaign finance in the United States is unclear, the Colorado law would fail even under intermediate scrutiny.
In Planned Parenthood v. Gary Herbert (2016), Gorsuch wrote for the four dissenting judges when the Tenth Circuit denied a rehearing en banc of a divided panel opinion that had ordered the Utah Governor to resume the organization’s funding, which Herbert had blocked in response to a video controversy.
In A.M., on behalf of her minor child, F.M. v. Ann Holmes (2016), the Tenth Circuit considered a case in which a 13-year-old child was arrested for burping and laughing in gym class. The child was handcuffed and arrested based on a New Mexico statute that makes it a misdemeanor to disrupt school activities. The child’s family brought a federal 42 U.S.C. § 1983 (civil rights) action against school officials and the school resource officer who made the arrest, arguing that it was a false arrest that violated the child’s constitutional rights. In a 94-page majority opinion, the Tenth Circuit held that the defendants enjoyed qualified immunity from suit.
Gorsuch wrote a four-page dissent, arguing that the New Mexico Court of Appeals had “long ago alerted law enforcement” that the statute that the officer relied upon for the child’s arrest does not criminalize noises or diversions that merely disturb order in a classroom.
In 2009, Gorsuch wrote for a unanimous panel finding that a court may still order criminals to pay restitution even after it missed a statutory deadline. That ruling was affirmed 5–4 by the Supreme Court in Dolan v. United States (2010).
In United States of America v. Miguel Games-Perez (2012), Gorsuch ruled on a case where a felon owned a gun in a jurisdiction where gun ownership by felons is illegal; however, the felon did not know that he was a felon at the time. Gorsuch concurred with the opinion that “The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.”
In 2013, Gorsuch joined a unanimous panel finding that intent does not need to be proven under a bank fraud statute. That ruling was affirmed by a Supreme Court unanimous in judgment in Loughrin v. United States (2014).
In 2015, Gorsuch wrote a dissent to the denial of rehearing en banc when the Tenth Circuit found that a convicted sex offender had to register with Kansas after he moved to the Philippines. The Tenth Circuit was then reversed by a unanimous Supreme Court in Nichols v. United States (2016).
Gorsuch favors a strict reading of the Antiterrorism and Effective Death Penalty Act of 1996. In 2015, he wrote for the court when it permitted Oklahoma Attorney General Scott Pruitt to order the execution of Scott Eizember, prompting a thirty-page dissent by Judge Mary Beck Briscoe. After Oklahoma botched the execution of Clayton Lockett, Gorsuch joined Briscoe when the court unanimously allowed Attorney General Pruitt to continue using the same lethal injection protocol. That ruling was upheld 5–4 by the Supreme Court in Glossip v. Gross (2015).
List of judicial opinions
During his tenure on the United States Court of Appeals for the Tenth Circuit, Judge Gorsuch has authored 212 published opinions. Some of those are the following opinions:
- United States v. Hinckley, 550 F. 3d 926 (2008) on principles of interpretation and construction of a statute, according to plain meaning and context
- United States v. Ford, 550 F. 3d 975 (2008) on entrapment and email evidence
- Blausey v. US Trustee, 552 F. 3d 1124 (2009) on procedure
- Williams v. Jones, 583 F. 3d 1254 (2009) dissent, on murder and evidence
- Wilson v. Workman, 577 F. 3d 1284 (2009) habeas corpus writ procedure
- Fisher v. City of Las Cruces, 584 F. 3d 888 (2009) Fourth Amendment excessive force claims against police officers
- Strickland v. United Parcel Service, Inc., 555 F. 3d 1224 (2009) on gender discrimination and harassment, arguing that if men are treated as equally badly as women, there is no claim
- American Atheists, Inc. v. Davenport, 637 F. 3d 1095 (2010) on crosses displayed on highways
- Flitton v. Primary Residential Mortgage, Inc. (2010) on jurisdiction over attorney fees in a gender discrimination and retaliation case
- Laborers’ International Union, Local 578 v. NLRB, 594 F. 3d 732 (2010) dismissing the union’s challenge to an National Labor Relations Board (NLRB) finding that the union committed an unfair labor practice by persuading a company to dismiss a worker who did not pay union dues
- McClendon v. City of Albuquerque, 630 F. 3d 1288 (2011) dismissing class action lawsuit over inhumane jail conditions
- Public Service Co. of New Mexico v. NLRB, 692 F. 3d 1068 (2012) dismissing a union’s claim that the NLRB was wrong to not find an unfair labor practice, when an employer dismissed a worker for deliberately disconnecting a customer’s gas supply (no evidence that it treated this employee differently)
- United States v. Games-Perez, 695 F. 3d 1104 (2012) on imprisonment without trial
- United States v. Games-Perez, 667 F. 3d 1136 (2012) on criminal law procedure
- Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (2013) on the Affordable Care Act and religious freedom
- Niemi v. Lasshofer, 728 F. 3d 1252 (2013) fugitive disentitlement doctrine
- Riddle v. Hickenlooper, 742 F. 3d 922 (2014) stating: “No one before us disputes that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities. Buckley v. Valeo, 424 U.S. 1, 26 (1976)”
- Yellowbear v. Lampert, 741 F. 3d 48 (2014) freedom to practice religion in prison
- Teamsters Local Union No. 455 v. NLRB, 765 F. 3d 1198 (2014) denying a labor union’s claim that a lockout entitled employees to back pay, under the NLRA 1935, 29 USC § 158(a)(1)
- United States v. Krueger, 809 F. 3d 1109 (2015) regarding the Fourth Amendment and search and seizures
- International Union of Operating Engineers v. NLRB Nos. 14-9605, 14-9613 (2015) on NLRB’s review of an unfair labor practice by a union, removing an employee from an eligible work list and refusing her the right to review
- United States v. Arthurs (2016) evidence
- United States v. Mitchell (2016) evidence, tracking without a warrant
- NLRB v. Community Health Services, 812 F.3d 768 (2016) dissenting, arguing against an NLRB decision that interim earnings should not be disregarded when calculating back pay for employees whose hours were unlawfully reduced
- TransAm Trucking v. Administrative Review Board, 833 F. 3d 1206 (2016)dissenting against the majority’s judgment that an employee was unjustly dismissed.
- Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (2016) on U.S. administrative law, doubting the doctrine of deference to the federal government by courts in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984)
Nomination to the U.S. Supreme Court
Do you support Gorsuch Confirmation
Do you support the filibuster Gorsuch ( CNN, TYT)
35, 85 % = 60 % Yes
57, 15 % = 38 % No
8 = 4%
After his nomination on January 31, 2017, Neil Gorsuch was confirmed by the Senate on April 7, 2017. Gorsuch, age 49, is the youngest sitting Supreme Court justice since Clarence Thomas. In February 2016, Associate Justice Antonin Scalia of the Supreme Court of the United States died, leaving a vacancy on the highest federal court in the United States. Article II of the U.S. Constitution gives the president the power to nominate justices to the Supreme Court, subject to the “advice and consent” of the United States Senate. Scalia’s seat remained open until the beginning of the Trump administration in January 2017, as the Senate did not consider outgoing President Barack Obama‘s nomination of Merrick Garland, advising that the vacancy should be filled by the newly elected president, either Trump or Hillary Clinton.
On January 31, 2017, President Donald Trump announced his selection of Judge Neil Gorsuch for the vacant position of Associate Justice, and the nomination was transmitted to the Senate on the following day. After hearings before the Senate Judiciary Committee, the nomination was sent to full Senate on April 4, 2017. When nominated, Gorsuch was an active judge on the United States Court of Appeals for the Tenth Circuit, to which he had been appointed by President George W. Bush and confirmed by the Senate without opposition. Democrats filibustered the confirmation vote, after which Republicans invoked the “nuclear option“, removing the option to filibuster Supreme Court nominees. On April 7, 2017, the Senate confirmed Gorsuch’s nomination to the Supreme Court with a bipartisan 54–45 vote, with three Democrats joining all the Republicans in attendance. Gorsuch took office in a private ceremony on April 10.
Death of Justice Antonin Scalia
In 1986, President Ronald Reagan nominated then D.C. Circuit Judge Antonin Scalia to the Supreme Court to fill the associate justice vacancy caused by the retirement of Chief JusticeBurger and the appointment as Chief Justice of then-Associate Justice William H. Rehnquist. Scalia was unanimously confirmed by the Senate and became a part of the court’s conservative bloc, often supporting originalist and textualist positions.
On February 13, 2016, Justice Scalia was found dead on a Texas ranch. Scalia’s death marked only the second time in sixty years that a Supreme Court justice had died in office, the other being Chief Justice Rehnquist in 2005. Scalia’s death was the seventh occasion since 1900 in which a seat on the Supreme Court of the United States was vacant during a year in which a presidential election was set to occur.
Nomination of Judge Merrick Garland
When Scalia died, President Barack Obama was a member of the Democratic Party, while the Republican Party held a 54–46 seat majority in the Senate. Because of the composition of the Supreme Court at the time of Scalia’s death, and the belief that President Obama could replace Scalia with a much more liberal successor, some believed that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences. President Obama ultimately nominated Merrick Garland on March 16, 2016. The Republican-controlled Senate refused to consider Garland’s nomination for 293 days, until it expired when the 114th Congress adjourned in January 2017. The defeat of Garland’s nomination left Scalia’s seat vacant when President Trump took office in January 2017. Many Democrats reacted angrily to the Senate’s refusal to consider Garland, with Senator Jeff Merkley (Democrat from Oregon) describing the vacant seat as a “stolen seat.” However, Republicans such as Iowa Senator Chuck Grassley argued that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new president.
During the 2016 presidential campaign, while Garland remained before the Senate, Trump released two lists of potential nominees. On May 18, 2016, Trump released a short list of eleven judges for nomination to the Scalia vacancy.
In September 2016, Trump released a second list of ten possible nominees, this time including three minorities. Both lists were assembled by the Federalist Society and the Heritage Foundation. Leonard Leo of the Federalist Society played a major role in the creation of the second list, which included Gorsuch. After winning the presidential election, Trump and White House Counsel Don McGahn interviewed four individuals for the Supreme Court opening, all of whom had appeared on one of the two previously-released lists. The four individuals were federal appellate judges Thomas Hardiman, William H. Pryor Jr., and Neil Gorsuch, as well as federal district judge Amul Thapar. All four had been appointed to the federal bench by President George W. Bush. While Pryor had been seen by many as the early front-runner due to the backing of Attorney General Jeff Sessions, many evangelicals expressed resistance to him, and the final decision ultimately came down to Gorsuch or Hardiman. Hardiman had the support of Trump’s sister, Judge Maryanne Trump Barry, but Trump instead chose to nominate Gorsuch.
President Trump announced the nomination of Gorsuch on January 31, 2017. The nomination was formally transmitted to the Senate on February 1, 2017. His nomination is now pending before the Senate Judiciary Committee. At age 49, Gorsuch would be the youngest sitting Supreme Court justice since Clarence Thomas. Having clerked for Anthony Kennedy, Gorsuch would also be the first Supreme Court Justice to have previously clerked for a Justice still sitting on the court.
In July 2006, Gorsuch’s nomination to the United States Court of Appeals for the Tenth Circuit had been confirmed in the Senate by a unanimous voice vote. At the time of his nomination to the Supreme Court, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty. Richard Primus of Politico described Gorsuch as “Scalia 2.0” due to ideological similarities, and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a “reliable conservative” similar to Scalia.
Gorsuch’s nomination was first considered by the Senate Judiciary Committee, which holds hearings on all federal judicial nominations and decides whether or not to send nominations to the full Senate for a final confirmation vote. The committee consists of 11 Republican Senators and 9 Democratic Senators, and is chaired by Republican Chuck Grassley (R-IA). In February 2017, the committee requested the Justice Department to send all documents they had regarding Gorsuch’s work in the George W. Bush administration. As of March 9, 2017, the Justice Department had turned over more than 144,000 pages of documents and, according to a White House spokesman, more than 220,000 pages of documents in total had been sent to the committee. Gorsuch’s confirmation hearings started on March 20, 2017, and lasted four days. On April 3, the Judiciary Committee approved Gorsuch by in an 11–9 in a party-line vote.
On the first day of hearings, Senators largely used their opening statements to criticize each other, with Ranking Member Dianne Feinstein (D-CA) complaining of the “unprecedented treatment” of Judge Merrick Garland, while Colorado Senator Michael Bennet (D-CO) felt “two wrongs don’t make a right”, and Senator Ted Cruz insisted President Trump’s nomination now carried “super-legitimacy”.
Democratic Senators repeatedly criticized Gorsuch for a case where the Tenth Circuit ruled in favor of a truck driver who had abandoned his trailer in inclement conditions, with Senator Dick Durbin (D-IL) telling Gorsuch the weather was “not as cold as your dissent”. In his own 16-minute opening statement, Gorsuch repeated his belief that a judge who likes all his rulings is “probably a pretty bad judge”, and noted that his large record included many examples where he ruled both for and against disadvantaged groups.
On the second day of hearings Gorsuch responded to questions by committee members. When Chairman Chuck Grassley (R-IA) asked Gorsuch if he would “have any trouble ruling against the president who appointed you”, Gorsuch replied, no, and “that’s a softball”. Senator Cruz used his time to ask Gorsuch about The Hitchhiker’s Guide to the Galaxy, basketball, and mutton busting. When asked by Senator Lindsey Graham (R-SC) how he would have reacted if during his interview at Trump Tower the President had asked him to vote against Roe v. Wade, Gorsuch replied “I would have walked out the door”.
Democratic Senators continued to criticize Gorsuch on his dissent in the case involving a truck driver, with Ranking Member Feinstein asking him “will you be for the little men” and Senator Al Franken (D-MN) telling the judge his position was “absurd”, going on to say “I had a career in identifying absurdity” (in reference to his former career as a comedian).Senator Patrick Leahy (D-VT) used his time to praise Judge Garland, criticize those policies of President George W. Bush that Gorsuch had defended at the Justice Department, and to ask Gorsuch how he would rule in Washington v. Trump. He refused to comment on active litigation, explained that Justice Department lawyers must defend their client, but did say that Garland is “an outstanding judge” and that Gorsuch always reads his opinions with “special care”.
On the third day of hearings Gorsuch continued to answer questions by committee members. Senator Orrin Hatch (R-UT) asked Gorsuch if “you think your writings reflect a knee-jerk attitude against common-sense regulations”, to which the judge replied “no”. In response to Senator Sheldon Whitehouse (D-RI)’s question of if the judge would be subject to agency capture by big business, Gorsuch replied “nobody will capture me”. Franken laughed out loud after Senator Jeff Flake (R-AZ) asked Gorsuch if he had ever served on a jury; Gorsuch said he had. Flake then asked Gorsuch if he would rather fight “100 duck-sized horses or one horse-size duck”, to which Gorsuch avoided giving a firm answer.
Senator Amy Klobuchar (D-MN) told Gorsuch he employed only “selective originalism”.[clarification needed] He replied to a question by Ranking Member Feinstein on the Equal Protection Clause by saying, “no one is looking to return us to horse and buggy days” and that “it matters not a whit that some of the drafters of the Fourteenth Amendment were racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.”
During Wednesday’s hearings, the Supreme Court unanimously reversed the Tenth Circuit in an Individuals with Disabilities Education Act case Gorsuch had not been involved in, although in 2008 he had written for a unanimous panel applying the same circuit precedent. Still, Senate Minority Leader Charles Schumer (D-NY) said this demonstrated “a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans – even children who require special assistance at school”.
|[hide]Confirmation Hearing Witnesses for Neil Gorsuch|
|March 20||Michael Bennet, Senator (D-CO)||Introducer, home state senator||Testimony.[a]|
|Cory Gardner, Senator (R-CO)||Introducer, home state senator||Testimony.[b]|
|Neal Katyal, Former Acting Solicitor General (May 2010-June 2011)||Introducer||Testimony.[c]|
|March 23||Nancy Scott Degan, Chair, American Bar Association Standing Committee on the Federal Judiciary||Congressional witness||Testimony.[e]|
|Shannon Edwards, Member, American Bar Association Standing Committee on the Federal Judiciary||Congressional witness|
|Deanell Reece Tacha, Pepperdine University School of Law Duane And Kelly Roberts Dean And Professor Of Law, U.S. Court Of Appeals Judge (Retired)||Republican witness||Testimony.[f]|
|Robert Harlan Henry, President of Oklahoma City University, U.S. Court Of Appeals Judge (Retired)||Republican witness|
|John L. Kane Jr., United States federal judge, United States District Court for the District of Colorado||Republican witness|
|Leah Bressack, former law clerk||Republican witness||Testimony.[g]|
|Elisa Massimino, President and CEO, Human Rights First||Democratic witness||Testimony.[h]|
|Jameel Jaffer, Executive Director, Columbia University/Knight First Amendment Institute||Democratic witness||Testimony.[i]|
|Jeff Perkins||Democratic witness||Testimony.[j]|
|Guerino J. Calemine, III, General Counsel, Communication Workers of America||Democratic witness||Testimony.[k]|
|Jeff Lamken, Partner, MoloLamken||Republican witness||Testimony.[l]|
|Lawrence Solum, Carmack Waterhouse Professor Of Law, Georgetown University Law Center||Republican witness||Testimony.[m]|
|Jonathan Turley, J.B. And Maurice C. Shapiro Professor Of Public Interest Law, The George Washington University Law School||Republican witness||Testimony.[n]|
|Karen Harned, Executive Director, National Federation Of Independent Business Small Business Legal Center||Republican witness||Testimony.[o]|
|Heather McGhee, President, Demos||Democratic witness||Testimony.[p]|
|Fatima Goss Graves, Senior Vice President For Program & President-Elect, National Women’s Law Center||Democratic witness||Testimony.[q]|
|Patrick Gallagher, Director, Sierra Club Environmental Law Program||Democratic witness||Testimony.[r]|
|Eve Hill, Partner, Brown Goldstein Levy||Democratic witness||Testimony.[s]|
|Peter Kirsanow, Commissioner, U.S. Commission On Civil Rights; Partner, Benesch, Friedlander, Coplan & Aronoff||Republican witness||Testimony.[t]|
|Alice Fisher, Partner, Latham & Watkins||Republican witness||Testimony.[u]|
|Hannah Smith, Senior Counsel, Becket Fund||Republican witness||Testimony.[v]|
|Timothy Meyer, former law clerk||Republican witness||Testimony.[w]|
|Jamil N. Jaffer, former law clerk||Republican witness||Testimony.[x]|
|Kristen Clarke, President & CEO, Lawyers Committee For Civil Rights Under Law||Democratic witness||Testimony.[y]|
|Sarah Warbelow, Legal Director, Human Rights Campaign||Democratic witness||Testimony.[z]|
|Amy Hagstrom Miller, President, CEO, & Founder, Whole Woman’s Health||Democratic witness||Testimony.[aa]|
|William Marshall, William Rand Kenan Jr. Distinguished Professor Of Law, University Of North Carolina||Democratic witness||Testimony.[ab]|
|Sandy Phillips||Democratic witness||Testimony.[ac]|
Gorsuch needed to win a simple majority vote of the full Senate to be confirmed, but the opposition could prevent a vote through a filibuster, which required a 60-vote super-majority to be defeated. At the time of the Gorsuch nomination, Republicans held 52 seats in the 100-seat chamber, as well as the potential tie-breaking vote in Vice President Pence. After nominating Gorsuch, President Trump called on the Senate to use the “nuclear option” and abolish the filibuster for Supreme Court appointments if its continued existence would prevent Gorsuch’s confirmation.(The nuclear option was used in 2013 to abolish filibusters for all presidential appointments except nominations to the Supreme Court.)
While some Republican Senators such as John McCain (R-AZ) expressed reluctance about abolishing the filibuster for executive appointments, others such as John Cornyn (R-TX) argued that the GOP majority should reserve all options necessary to confirm Gorsuch. Other political commentators have proposed that GOP Senate leadership adopt a strategic use of Standing Rule XIX to avoid the elimination of the filibuster.
During the last day of committee hearings, Senate Minority Leader Chuck Schumer (D-NY) announced from the Senate floor that he would filibuster the nomination. Democratic opposition focused on complaints saying that Scalia’s seat should have been filled by President Obama. In addition, Democratic Senators Al Franken (D-MN), Bernie Sanders (D/I-VT), Elizabeth Warren (D-MA), and Kamala Harris (D-CA) criticized aspects of Gorsuch’s record. Senator Jeff Merkley (D-OR) said he would do “anything in his power”—including the power of filibustering—to oppose Gorsuch’s nomination. Other Democratic Senators including Joe Manchin (D-WV), Heidi Heitkamp (D-ND), and Joe Donnelly (D-IN) support Gorsuch.
On April 6, 2017, Democrats filibustered (prevented cloture of) the confirmation vote of Gorsuch. The Senate Republicans invoked the so-called “nuclear option” and changed the Senate rules to end fillibusters for Supreme Court nominees. After the change to Senate rules the Senate in a bipartisan vote (Senate Republicans along with Democratic Senators Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), and Michael Bennet (D-CO)) agreed to cloture. After the change, Gorsuch was confirmed on April 7.
The Senate confirmed Gorsuch on April 7, 2017, by a bipartisan vote of 54–45. All Senate Republicans present, along with Democratic Senators in states that voted heavily for Trump, Manchin (D-WV), Heitkamp (D-ND), and Donnelly (D-IN), voted to confirm Gorsuch. Republican Georgia Senator Johnny Isakson was absent for the vote because he was recovering from back surgery.
Responses from organizations and notable persons
Norm Eisen, who was named by Obama to be Special Counsel for Ethics and Government Reform in the White House and Ambassador to the Czech Republic, has endorsed Gorsuch. Eisen was a classmate of both Gorsuch and Obama at Harvard Law. Neal Katyal, who served as Acting Solicitor General of the United States during the Obama Administration and who is currently a law professor at Georgetown University Law Center, endorsed Gorsuch for approval to the Supreme Court.
The National Rifle Association, the National Shooting Sports Foundation, the Second Amendment Foundation and other gun rights groups endorsed Gorsuch, while Americans for Responsible Solutions, the Law Center to Prevent Gun Violence and other gun control proponents have opposed his nomination. House Minority Leader Nancy Pelosi (D-CA) claimed Gorsuch “comes down on the side of felons over gun safety”. Politifact called her statement misleading and said that Gorsuch’s past rulings do not “demonstrate that he thinks more felons should be allowed guns than what is already permitted under the law”.
The American Civil Liberties Union raised concerns about Gorsuch’s respect for disability rights. The Secular Coalition for America, Freedom from Religion Foundation and Union for Reform Judaism all voiced concerns with Gorsuch’s nomination.
On April 4, 2017, Politico reported that Rebecca Moore Howard, a Syracuse University professor, accused Gorsuch of plagiarism. Oxford University Emeritus Professor John Finnis, who supervised Gorsuch’s dissertation at Oxford disagreed and stated, “The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd.” Abigail Lawlis Kuzma, the supposed victim of the plagiarism and who is Indiana‘s deputy attorney general, has supported Gorsuch by saying, “I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the ‘Baby/Infant Doe‘ case that occurred in 1982.”
Gorsuch is a proponent of originalism, the idea that the Constitution should be interpreted as perceived at the time of enactment, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law. An editorial in the National Catholic Register opined that Gorsuch’s judicial decisions lean more toward the natural law philosophy.
In a 2005 speech at Case Western Reserve University, Gorsuch said that judges should strive
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.
In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”.
States’ rights and federalism
Gorsuch was described by Justin Marceau, a professor at the University of Denver‘s Sturm College of Law, as “a predictably socially conservative judge who tends to favor state power over federal power”. Marceau added that the issue of states’ rights is important since federal laws have been used to reel in “rogue” state laws in civil rights cases.
In the book, Gorsuch makes clear his personal opposition to euthanasia and assisted suicide, arguing that America should “retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
On April 4, 2017, Politico reported that Rebecca Moore Howard, a Syracuse University professor, accused Gorsuch of plagiarism. Oxford University Emeritus Professor John Finnis, who supervised Gorsuch’s dissertation at Oxford disagreed and stated, “The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd.” Abigail Lawlis Kuzma, the supposed victim of the plagiarism and who is Indiana‘s deputy attorney general, has supported Gorsuch by saying, “I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the ‘Baby/Infant Doe’ case that occurred in 1982.”
Gorsuch has timeshare ownership of a cabin on the headwaters of the Colorado River outside Granby, Colorado with associates of Philip Anschutz. He enjoys the outdoors and fly fishing and on at least one occasion went fly fishing with Justice Scalia. He raises horses, chickens, and goats, and often arranges ski trips with colleagues and friends.
He is the author of two books. His first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press in July 2006. He is a co-author of The Law of Judicial Precedent, published by Thomson West in 2016.
Neil and his siblings, brother J.J. and sister Stephanie, were raised as Roman Catholics and attended weekly Mass. Neil Gorsuch later attended Georgetown Preparatory School, a Jesuit school in North Bethesda, Maryland, from which he graduated in 1985.
Gorsuch’s wife, Louise, is British-born and the two met while Neil was studying at Oxford. When the couple returned to the United States they started attending an Episcopal parish in Vienna, Virginia. Gorsuch currently attends St. John’s Episcopal Church in Boulder. If Gorsuch considers himself Protestant, his confirmation would make him the first Protestant to sit on the U.S. Supreme Court since the retirement of Justice John Paul Stevens. Gorsuch has not publicly stated if he considers himself a Catholic who attends a Protestant church, or if he has fully converted to Protestantism, but “according to church records, the Gorsuches were members of Holy Comforter”, an Episcopal church.
Awards and honors
Gorsuch is the recipient of the Edward J. Randolph Award for outstanding service to the Department of Justice, and of the Harry S. Truman Foundation’s Stevens Award for outstanding public service in the field of law.