Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
President Donald Trump announced Tuesday evening the nomination of Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the seat left vacant on the U.S. Supreme Court after the death of Justice Antonin Scalia.
Hannah Smith of the Becket Fund for Religious Liberty, a public interest group that has represented the Little Sisters of the Poor, Hobby Lobby and EWTN (the Register’s parent company) in their legal challenges to the Health and Human Services’ contraception mandate, praised the selection of Judge Gorsuch for the nation’s highest court.
“Judge Gorsuch wrote an eloquent opinion in the Hobby Lobby case. While the majority opinion focused on whether Hobby Lobby was protected under the Religious Freedom Restoration Act,” Smith noted, “Gorsuch focused on the Green family,” the founders of the family-owned craft-store chain. The mandate required most employers to provide cost-free contraception, including abortion-inducing drugs, and that left the Greens with “a choice between abiding by their religion or saving their business.”
“This was a well-written opinion that demonstrates why he will be a great justice,” said Smith, who told the Register that Justice Samuel Alito picked up on that theme when he wrote the majority opinion in favor of Hobby Lobby.
Further, after the 10th Circuit ruled against the Little Sisters’ legal challenge to the HHS mandate, Gorsuch voted to rehear the case en banc (with a full panel), but that option was rejected.
A nominee with sterling credentials from Columbia University, Harvard Law School and Oxford University and a clerkship with Supreme Court justices, Judge Gorsuch, 49, has been described as the jurist who most closely adheres to the originalist jurisprudence of Justice Scalia.
After Trump introduced Judge Gorsuch, the nominee voewed to “do all my powers permit to be a faithful servant of the Constitution and laws of this great country.” Before an audience that included Maureen Scalia, Justice Scalia’s widow, he hailed the late justice as “a lion of the law.” He also said, “I am so thankful tonight for my family, my friends and my faith. These are the things that keep me grounded at life’s peaks and have sustained me in its valleys.” The judge attends an Episcopal church.
“President Trump has chosen a worthy successor to Antonin Scalia, and the nominee deserves the support of any friend of human life, religion and the family,” Gerard Bradley, a professor of law at the University of Notre Dame, told the Register.
“Judge Neil Gorsuch is, like Scalia, a textualist and an originalist when it comes to the Constitution, and that approach to judging gives no quarter to radical innovations like same-sex ‘marriage’ and Roe v. Wade.
“Gorsuch is a judge’s judge, meaning that he is not only a careful and attentive student of the law and even legal details, he also respects profoundly the important but limited role of judges in constitutional cases. At least in this democracy, Gorsuch maintains, it is for the people and not for judges to make decisions about the basic moral questions facing the country.”
During a speech in 2016, Gorsuch acknowledged Scalia’s influence on his own thinking. He also said that he wept after learning of the justice’s death.
“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” said Gorsuch during an address (video) at Case Western Reserve University School of Law.
Lawmakers “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,” he agreed. However, “judges should do none of these things in a democratic society.”
Rather, they should hew to “text, structure and history” to grapple with the law and not “decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
Though Gorsuch has not made any public statements setting forth his views on related life issues, like legal abortion, conservative legal scholars say they are reassured by the commentary in his book, The Future of Assisted Suicide and Euthanasia, and in articles published in scholarly journals.
“Gorsuch wrote in his very fine book that ‘human life is fundamentally and inherently valuable,’ so that it is ‘always wrong’ for any private person to intentionally kill another human being,” noted Notre Dame’s Bradley.
In his book, Gorsuch mounts a compelling argument against assisted suicide.
“To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends,” he stated, and he proposed guidelines for care at the end of life that reject actions that seek to cut short a person’s life.
The Washington Post, in its coverage of Gorsuch’s likely nomination, pointed out that the jurist “would be the first former law clerk to serve on the bench alongside his or her old boss” — in this case, Justice Anthony Kennedy.
A Colorado native, Gorsuch moved with his family to Washington, D.C., for his high school years and attended Georgetown Preparatory School, a Jesuit institution. Anne Gorsuch Burford, his mother, was appointed by President Ronald Reagan to lead the Environmental Protection Agency.
After high school, Gorsuch completed his undergraduate studies at Columbia University and then attended Harvard Law School.
Later, while clerking for Justices Kennedy and Byron White, Gorsuch was hired by the white shoe law firm Kellogg Huber.
However, he opted to delay his move to the firm, as he had received a Marshall Scholarship to study at Oxford University, where he completed doctoral studies on the moral and legal problems posed by assisted suicide and euthanasia under the guidance of the influential Catholic legal philosopher John Finnis.
Judge Gorsuch now must navigate the difficult road ahead. One conservative organization, the Judicial Crisis Network, will help raise $10 million for a multimedia campaign to defend Gorsuch, as liberal groups, like People for the American Way, stage their first protest tonight and Senate Democrats prepare to block any Trump nominee who would re-establish the balance of power on an ideologically divided court.
Thus far, the Democrats’ leader, Sen. Chuck Schumer of New York, has said he will insist on a 60-vote threshold in the Senate to overcome a filibuster that could block Gorsuch’s path to confirmation.
“That would either require eight Democrats to join the Senate’s 52 Republicans to advance the nomination,” The New York Times reported, “or force Republicans to escalate a parliamentary showdown — as Mr. Trump has already urged them to do — to change long-standing rules and push through his nominee on a simple majority vote.”