Damon Root is the author of Overruled: The Long War for Control of the U.S. Supreme Court
U.S. President Donald Trump has just launched a major offensive in the long-running war for control of the U.S. Supreme Court.
In a White House ceremony broadcast live on prime-time television Tuesday night, Mr. Trump nominated Neil Gorsuch, a respected judge who sits on the Denver, Colorado-based U.S. Court of Appeals for the 10th Circuit, to replace the late Justice Antonin Scalia on the Supreme Court.
Mr. Gorsuch is a staunch conservative with sterling academic and legal credentials. He graduated from Harvard Law School, holds a doctorate from Oxford University, and served as a Supreme Court clerk under Justices Byron White and Anthony Kennedy.
Much like Justice Scalia, whose spot he now hopes to fill, Mr. Gorsuch is an outspoken advocate of the legal philosophy known as "originalism," which holds that the U.S. Constitution should be interpreted according to its original meaning at the time it was adopted.
According to Mr. Gorsuch, the role of judges is "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."
Since his appointment to the 10th Circuit in 2006 by former president George W. Bush, Mr. Gorsuch has participated in several high-profile cases. Most notably, in 2013, Mr. Gorsuch voted in favour of the Christian family owners of the Hobby Lobby retail chain in their challenge to the so-called Obamacare contraceptive mandate, the provision of the 2010 health-care law that requires employers to cover certain forms of birth control as part of their employee health-care plans. Mr. Gorsuch's position in that case was later upheld by the Supreme Court.
Surprisingly, Mr. Gorsuch's judicial record is quiet on the hot-button issue of abortion. But in his 2006 book The Future of Assisted Suicide and Euthanasia, he did seemingly point in an anti-abortion direction, rejecting the case for legalizing assisted suicide on the grounds that "human life is fundamentally and inherently valuable, and the taking of human life by private persons is always wrong."
To his credit, Mr. Gorsuch dissented forcefully in 2016 from a pro-police ruling by his colleagues in a case dealing with the Fourth Amendment right to be free from "unreasonable searches and seizures."
In Mr. Gorsuch's view, the court was wrong to conclude that police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch even though the homeowner had placed multiple "No Trespassing" signs around the property and on the front door.
Under the majority's flawed ruling, Mr. Gorsuch complained, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn't enough to revoke the state's right to enter."
Mr. Gorsuch is also known as a leading critic of the idea that the courts should defer to the executive branch of the U.S. government in cases dealing with the interpretation of federal statutes and regulations. Ironically, Mr. Gorsuch's views in this area of the law could easily result in him voting against the misdeeds of the Trump administration. That's welcome news for those of us who object to Mr. Trump's unilateral executive actions and fear the additional constitutional violations that seem sure to come under his administration.
Now that President Trump has made his pick, the next move rests in the hands of the Senate Judiciary Committee, which must approve the nomination before it goes to a vote before the full Senate.
Will the Democrats seek to block Mr. Gorsuch's nomination, just as the Republicans recently blocked the nomination of former president Barack Obama's Supreme Court nominee, Merrick Garland? It's entirely possible they will.
Will the Republicans then respond by invoking the so-called nuclear option and effectively eliminate the filibuster for all Supreme Court nominees, just as the Democrats did in 2013 when they "nuked" the filibuster for lower-court candidates? Will Mr. Gorsuch's Senate confirmation hearings turn into a referendum on the legality of the Trump administration itself?
One thing is certain: The battle for SCOTUS is on.