In choosing a successor to Justice Antonin Scalia, the president could not have made a better choice than Judge Neil Gorsuch. We can say that with confidence because we have had the honor to serve as law clerks to both men.
For each of us, Justice Scalia was a hero. By the time we clerked for him, he had already left an indelible mark on the law. Through the force of his intellect and the power of his pen, Justice Scalia changed the way all lawyers and judges think and write about the law. He championed the view that, in a nation governed by the people, the Constitution should be interpreted according to what it meant when it was written and ratified, not changed to suit the judiciary’s preferences. And Congress’s statutes likewise mean what they say, not what a judge thinks would produce a good outcome. Justice Scalia advanced those ideas through clear, forceful and memorable writing. You could disagree with Justice Scalia – and sometimes we did – but you could not ignore him.
Although no one can replace the Justice, we can think of no one more worthy of his seat than Judge Gorsuch. He is a brilliant thinker, a fair and independent judge and a clear and effective communicator of important ideas.
For starters, Judge Gorsuch’s qualifications to serve on the Supreme Court are beyond question. He attended Columbia University and Harvard Law School and earned a doctorate in legal philosophy from Oxford. He clerked for two Supreme Court Justices, Byron White and Anthony Kennedy, and had a distinguished career as a lawyer, including high-level service at the Department of Justice. And in his ten years on the bench, Judge Gorsuch has earned the respect of lawyers and judges of all stripes.
Judge Gorsuch’s opinions reflect the principle Justice Scalia spent his career defending: that in a democracy, the people’s elected representatives, not judges, get to decide what laws we should have. In a lecture last year, Judge Gorsuch paid tribute to that “great project of Justice Scalia’s career,” reminding us of “the differences between judges and legislators” and of judges’ duty “to apply the law as it is . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” Justice Scalia couldn’t have said it better himself.
There is a kind of popular cynicism today in sophisticated legal circles that principled judicial decision-making of that kind does not exist – that judges are just politicians in robes. We know better. We know from our time in Denver that Judge Gorsuch sincerely believes judges can and must decide cases fairly and independently based on the law, without consulting their private views. His chambers are infused with that principle.
It is no surprise, then, that Judge Gorsuch has gained a wide reputation as a principled and deep-thinking judge. On occasion that has even led him to disagree with the late justice. For example, Justice Scalia was a longtime defender of Supreme Court precedents that require courts to defer to federal agencies about the meaning of statutes passed by Congress. Judge Gorsuch, however, recently called for a rethinking of those cases – for a reason Justice Scalia would have found familiar. Judge Gorsuch objected that judicial deference to executive agencies is “more than a little difficult to square with the Constitution of the framers’ design” because it effectively allows executive bureaucracies to “swallow huge amounts of core judicial and legislative power,” which are supposed to be located in separate branches of government.
That is a powerful argument about the original meaning of the Constitution. Justice Scalia would have respected it and could not have ignored it. But we also suspect that, with a twinkle in his eye, he would have delighted in arguing with Judge Gorsuch about it. Our lips are sealed about who we think would have won.
Justice Scalia’s death has been difficult for his law clerks. Not only did we lose our patriarch, a mentor and a friend, but with the entire country we also lost a mighty champion for the Constitution. Judge Gorsuch’s nomination to his seat on the Court, however, gives us tremendous comfort and excitement. The judge may not prove as boisterous as his predecessor; that is not his style. But he will be as principled, as courageous and as committed to the Constitution and our country. The American people could not ask for more of a Supreme Court justice than that.
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