President Donald Trump nominated Judge Neil Gorsuch on Tuesday night to fill the seat on the Supreme Court of the United States left vacant by the death of Antonin Scalia. CNN contributors and analysts offered these assessments of his choice. The opinions expressed in these commentaries are solely those of the authors.
Jeffrey Toobin: Three lessons from Gorsuch’s nomination
Three quick lessons from President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court:
Obstruction works. When Antonin Scalia died on February 13, 2016, Mitch McConnell, the Republican leader in the Senate, immediately announced the Senate would refuse even to consider President Obama’s nominee to the seat. This was an unprecedented obstruction of a President who had nearly a full year remaining in his term. In the elections last November, Republicans paid no penalty at the polls for this decision; the GOP retained control of the Senate and, of course, Donald Trump was elected President and won the chance to name a replacement for Scalia. Instead of a Democratic majority on the Supreme Court for the first time in decades, there will be a reinvigorated conservative majority.
Trump's Supreme Court pick
No surprises. There is a pervasive mythology that justices of the Supreme Court turn out to surprise the Presidents who appointed them. This myth dates to the Eisenhower administration, when the President was indeed surprised by how liberal Earl Warren and William Brennan turned out to be. But in recent decades, presidents have gotten what they wanted with their Supreme Court appointments. Anthony Kennedy (appointed by Ronald Reagan) and David Souter (George H.W. Bush) are only modestly different from what they appeared to be. President Trump wanted a strong conservative voice, and he’ll get one with Gorsuch.
A message to Justice Kennedy. Kennedy is 80 and weighing when and whether he will step down from the court. Trump has now paid Kennedy the high honor of appointing one of his former law clerks to serve alongside him. This will inspire confidence in Kennedy that Trump will leave the court in good hands – and give the President another opportunity to shape the Supreme Court for decades to come.
Jeffrey Toobin is CNN’s senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.”
Ilya Shapiro: An inspired choice
This was an inspired choice, and the fulfillment of a most important campaign promise. President Trump showed doubters that, even if he doesn’t know originalism from origami, he understands the importance of the Supreme Court and of getting this nomination right. And he could hardly have picked someone more fitting to fill the large robe left by the legendary Justice Antonin Scalia.
Neil Gorsuch is a brilliant jurist who knows his originalism well – and textualism – and has a penchant for going to dictionaries and history books to find the right answer. Just like Scalia. He takes constitutional structure seriously, not as an academic matter but as a means to secure ordered liberty. Just like Scalia. And he’s an elegant writer, with clear and memorable turns of phrase to illustrate complex points. Just like Scalia, though not as punchy.
Unlike Scalia, from the get-go Gorsuch is willing to question the scope of administrative agencies’ power. This is a looming issue in both legal and political circles, and I predict that he’ll make his name on it. All in all, a great choice – and one the Democrats will be hard-pressed to gain traction in attacking
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
Laura Coates: Save your battleships, Democrats
Unsurprisingly, Supreme Court nominee Neil Gorsuch has all the trappings of a Washington insider nestled in the mold of the traditionally pedigreed justice. And while a Supreme Court justice is neither required to agree with the President’s beliefs nor carry out his campaign promises, Gorsuch’s views align with those promises.
He has been outspoken for the right to religious freedom and his disdain for the Affordable Care Act’s contraceptive mandate; he also advocates a clear separation of powers and wants to curb judicial deference to bureaucrats’ interpretation of laws. Although he hasn’t directly ruled on abortion rights, his pro-life views are apparent from his condemnation of euthanasia.
Like his predecessor, Antonin Scalia, Gorsuch is an originalist and textualist. Replacing a conservative icon with his ideological equal will merely restore the status quo that existed during Scalia’s tenure, not shift the ideological composition of the court. As such, Gorsuch’s presence will barely move the needle, let alone guarantee the reversal of Roe v. Wade, a case that escaped reversal even when Scalia was presiding.
Democrats hoping to preserve Roe v. Wade would be wise to save their battleships for the second (and perhaps third) judicial vacancy that will arise during Trump’s term.
Laura Coates is a CNN Legal Analyst, host, commentator and best-selling author.
Raul A. Reyes: America’s Next Top Justice? Not quite.
After all the hype, the first edition of America’s Next Top Justice proved to be underwhelming. That’s because, by their nature, these are serious affairs, without the opportunity for showboating and theatricality that Trump craves. Though Supreme Court nominations are not usually given in prime time, right now the Trump administration badly needs a distraction from the still-unfolding outrage over his so-called “Muslim ban.”
Overlooking the fact that the Supreme Court seat in question rightfully belongs to Merrick Garland, in certain ways this was a traditional nominee rollout. Trump kept his remarks brief, although he couldn’t resist patting himself for having studied “every aspect” of his nominee’s life. When will Trump get it that it’s not always about him?
Neil Gorsuch himself was far more humble, praising his legal mentors as well as the late Justice Antonin Scalia, whom he called “a lion of the law.” This alone should give people of color and LGBT people pause, as during his time on the bench Scalia voted against expanding civil rights at nearly every turn. Still, as a first impression, Gorsuch seemed a thoughtful gentleman – a nominee who, perhaps, could have been chosen by almost any Republican president.
But Gorsuch’s legal views are not mainstream. He is against euthanasia and doctor-assisted suicide, at a time when the public is gradually warming to the ideas under certain circumstances. As a circuit judge, he took the side of the Hobby Lobby craft stores in their bid to limit employee access to contraception under the Affordable Care Act. He is a proponent of what conservatives like to call “religious liberty”; his dissent in the Little Sisters of the Poor case put him on the side of a religious order that sought an exemption from the ACA’s mandate that employers offer contraception coverage. Gorsuch is also no fan of the so-called “Chevron Doctrine,” the idea that when a statute’s interpretation is in doubt, deference should be given to the agency that will implement it. Think about what this means in the Trump era: Is the American public really comfortable with a justice who could potentially take away authority from federal agencies and give more power to the judiciary branch?
Because Gorsuch is young for the Supreme Court (he is 49), his judicial record is limited and we do not know his take on critical issues. We will learn more about his legal philosophy at his confirmation hearings. How does he view Trump’s travel ban on people from the Middle East? What is his opinion about federal authority over sanctuary cities? How would he apply his doctrine of originalism – the idea that he would apply the law as our Founding Fathers would – to 21st century matters such as cyberhacking and digital privacy?
Raul A. Reyes, an attorney and member of the USA Today board of contributors, writes frequently for CNN Opinion.
Paul Callan: Can Gorsuch survive a street fight?
New York City native Antonin Scalia understood that in a vicious street fight the innocent are sometimes bloodied. To replace Scalia, President Trump has selected Judge Neil Gorsuch, one of the most qualified men ever nominated to the Supreme Court. That is one of the most qualified since President Obama nominated Judge Merrick Garland, the 1974 valedictorian of Harvard College and magna cum laude graduate of Harvard Law with a stellar judicial record. Senate Republicans refused to grant the highly-respected Garland even the courtesy of a Senate hearing and the Dems are spoiling for a fight. Given the political backdrop, Judge Gorsuch may become a victim of Democratic political retribution.
The 49-year-old Coloradan is a graduate of Columbia University, Harvard Law and also holds a doctorate from Oxford. He serves on the federal appellate court serving Colorado and five contiguous Western states. His legal prose is admired for its elegance and style. The prose often espouses the conservative “textualism” philosophy that was so often articulated with a rapier wit by Justice Scalia. The approach of Boulder resident Gorsuch is softer and friendlier than that of Scalia earning him widespread admiration in the legal community. He is a legal scholar who has had the rare honor of clerking for two Supreme Court Justices, the late Byron White and the still serving Justice Anthony Kennedy. His youth means that he could influence the court for another 30 years. Democrats will be particularly fearful that his friendship with Justice Anthony Kennedy may pull Kennedy’s swing vote more often to the conservative camp. Ironically, Gorsuch’s stellar qualifications will make him a likely target of a determined effort by liberal and progressive Democrats to kill his nomination with a public campaign of fear suggesting that he is an “out of the mainstream” radical conservative dangerous to women and friendly to big business.
A filibuster is inevitable. He will only be approved if Republicans assert the “nuclear option” permanently banning the use of filibusters in the future SCOTUS nomination debates. His replacement nominee could be far worse and the loss of future filibuster rights may give the Dems pause to be careful on this one. Brace yourself for a fascinating and bitterly fought Senate confirmation hearing.
Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and media law professor.
Salena Zito: A perfect-pitch level of Trump
President Donald Trump pulled off a brilliantly conveyed moment in his new presidency with his announcement of Colorado federal appeals court judge Neil Gorsuch as his Supreme Court nominee.
Trump delivered a short introduction that hit a perfect-pitch level of Trump when he introduced Gorsuch on prime time television. Gorsuch took the presidential podium briefly with his wife at his side and articulated a genuine thankfulness for the honor of being nominated then turned the attention to those who have held the seat before him, including his predecessor Antonin Scalia.
The human moment of the two men fishing that he described was compelling and touching. “I miss him,” Gorsuch said.
It was deft move that immediately placed a name and face in the living rooms of American homes across the country, knowing that this humble, soft-spoken man would be immediately attacked, sometimes viciously, by Democrats and progressive groups.
This contrast is one Trump likely believes will serve him in the long run.
After a week of rocky dealings with the press, the one issue Trump knew helped him win over the hearts and minds of conservatives reluctant to support him, Trump won the moment with the appointment of a conservative Supreme Court nominee.
He also calmed a jittery press who began to believe that this was an administration that was never going to color inside the lines of normal protocol after a week of an historic number of executive orders, seemingly chaotic administrative issues and combative relations.
In short, the success of Tuesday evening went beyond the pick of Neil Gorsuch – a widely respected conservative jurist among his liberal colleagues and peers who is clearly in the intellectual mold of the late Scalia. It also marked a landmark moment in the brand new Trump administration: achieving widespread admiration from the press.
That does not mean they won’t look objectively at all the obstacles this nominee faces with a Democratic minority, nor does it mean they will not deeply scrutinize the process.
But it was clear they showed they are willing to give credit to the Trump administration, a first in the wary relationship between this president and the press who covers him.
Salena Zito is a CNN contributor and national political reporter for the Washington Examiner.
Rachel Sklar: We know he will be anti-choice
Gorsuch has never ruled directly on abortion, but the rest of his canon makes his stance pretty clear. He’s a constitutional textualist - in the mold of deceased justice Antonin Scalia, whose seat he will fill - and the New York Times assesses him as actually to the right of Scalia on the issues. He wrote a book on euthanasia and assisted suicide which extolled the sanctity of life, has dissed liberals in his non-scholarly writing, has donated to anti-choice politicians and has compared abortion negatively to assisted suicide. He is so pro-life that he was in favor of granting a whole new level of personhood to Hobby Lobby, a not-person corporation that Gorsuch deemed capable of having religious beliefs (beliefs that he saw fit to impose on a woman’s body and choices in contravention of existing law). Not sure that the Framers of the Constitution envisioned a small family-owned crafts business when they wrote “We the People” but okay, sure, he’s a textualist.
We can sit and parse his decisions and other writings - and we will! - but we know he will be anti-choice because Donald Trump nominated him. He’s not a surprise, nor is his record. So I guess the only thing left to do is confirm him with civility, just like the GOP did for the last Presidential SCOTUS pick. Oh, wait.
Rachel Sklar is a writer and former lawyer based in New York. She is the founder of TheLi.st, a network and media platform for women.
Kayleigh McEnany: A victory for conservative voters
Justice Antonin Scalia’s legacy continues in the nomination of Judge Neil Gorsuch for the Supreme Court. President Donald Trump fulfilled his promise to conservatives in choosing a textualist and originalist who will uphold the text of the Constitution and the literal words of statutes. Moreover, with a long track record of conservative opinions like the Hobby Lobby decision upholding religious liberty and a book arguing against euthanasia, conservatives can be certain Trump has selected a nominee who will not forsake his originalist roots. In fact, “Judicial Common Space” places Gorsuch to the right of Scalia. Conservative voters were not only victorious in the election of Donald J. Trump for President but also in the nomination of Neil Gorsuch for the next Supreme Court justice of the United States.
Kayleigh McEnany is a CNN commentator.
Peniel Joseph: GOP’s tactic of obstruction pays dividends
President Trump’s nomination of Neil Gorsuch, a 49-year old federal judge from Colorado, promises to reward the Republican Party’s unprecedented failure to hold confirmation hearings for Merrick Garland in the aftermath of Justice Antonin Scalia’s death. The GOP’s tactic of holding President Obama’s rightful Supreme Court pick hostage paid dividends by contributing to the election of Donald Trump, although at the expense of long-prevailing democratic norms. By denying a president with almost one year remaining on his term the well-earned chance to transform the court, the Republican Party has virtually assured that the court’s conservative tilt will last for at least another generation. Reports indicate that, in addition to forming a personal friendship with the late Justice Scalia, Gorsuch patterned his own legal thinking after the outspoken conservative jurist.
If confirmed, Judge Gorsuch would continue the court’s 5-4 swing toward a brand of ideological conservatism that has grown more rigid in recent years, mirroring the polarized nature of our national politics and indeed furthering the divide through decisions on health care, reproductive rights, the death penalty, campaign finance, and immigration that have turned the court, for both good and ill, into an unelected branch of super legislators. Fears of a legislating court, voiced by conservatives and liberals depending on the court’s make-up, will now be a primary concern of liberals who rightfully believe they lost their chance to change the court’s direction at the hands of an opposition bold enough to break long-established protocols – even at the cost of the integrity of American democratic institutions.
Peniel Joseph is the Barbara Jordan Chair in Political Values and Ethics and the Founding Director of the Center for the Study of Race and Democracy at the LBJ School of Public Affairs at the University of Texas at Austin.
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Jonathan Tasini: ‘Mitch McConnell doctrine’ should guide Democrats to filibuster
A United States senator once said, “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent.” Indeed — and the doctrine of Mitch McConnell should guide the Democratic Party to block every Donald Trump nominee to the high court at least until 2018, including Neil Gorsuch.
At every level, this is an overtly political argument, which Democrats, unlike Republicans, seem hesitant to make historically. Donald Trump did not win the popular vote and does not govern with a majority; millions of Americans do not support his assault on civil and economic rights. Though he will, as just the first week of his administration demonstrated, cause significant damage in the short term by exercising the powers of the executive branch, he will eventually be gone from the Oval Office.
That isn’t true about the Supreme Court: By the pure nature of a lifetime appointment, Neil Gorsuch could shape our world for several decades. So, without reservation, Democrats should block Trump from the ability to leave us with the ugly stain of his actions long after he leaves office. Republican unity that blocked Merrick Garland from even getting a hearing should clearly set the standard for Democrats to follow with this nominee.
Jonathan Tasini (@jonathantasini) has been a frequent commentator on CNN and is the author of “The Essential Bernie Sanders and His Vision for America.”