Confirm Judge Gorsuch

Guest Post by Ryan Lodata

Yesterday, President Donald Trump announced his nominee to replace late Justice Antonin Scalia on the United States Supreme Court, Judge Neil Gorsuch of the United State Court of Appeals for the Tenth Circuit. Evangelicals, initially skeptical of a Trump presidency, may find a measure of relief in President Trump’s selection of Judge Gorsuch. Best known for decisions in support of Hobby Lobby and the Little Sisters of the Poor in their opposition to Obamacare’s contraceptive mandates, Judge Gorsuch is likely to be seen as an excellent pick by the – presumptively now less skeptical – pro-life crowd. In fact, a number of conservative Senators were on hand for the announcement of Judge Gorsuch’s nomination to the Supreme Court.

Judge Gorsuch possesses the bona fides that, aside from the aforementioned court decisions, make him a well-qualified nominee for the Supreme Court. Judge Gorsuch, a graduate from Harvard Law School, clerked for Judge Sentelle on the D.C. Circuit Court of Appeals and subsequently clerked for Justices Byron White and Anthony Kennedy on the United State Supreme Court. Following many years in private practice, President George W. Bush appointed Judge Gorsuch to his current seat on the Tenth Circuit Court of Appeals in 2006. Put simply, Judge Gorsuch possesses the very achievements that have traditionally been used as a gauge to determine competency to the highest court.

While Judge Gorsuch may have to follow the well-respected legacy of Justice Scalia, many in the legal community see an opportunity for Judge Gorsuch to run with the conservative torch that was feared to have fallen with the late Justice. One of the most interesting questions of a potential Justice Gorsuch, however, is how – if at all – he will differentiate himself from Justice Scalia should he make his way to the bench.

Jonathan Adler, Professor of Law at Case Western Reserve University School of Law, noted one potentially transformative difference in opinion between Justice Scalia and Judge Gorsuch in a recent op-ed in the Washington Post; Chevron deference. Derived from the United States Supreme Court’s opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Chevron deference is blamed by many small government advocates as being responsible for the explosive growth in federal regulations passed by executive branch agencies and is seen as one factor in the creation of the so-called administrative state. The simplest explanation of Chevron deference is that courts will defer to an executive branch agency’s legal interpretation of a regulatory statute. Justice Scalia’s opinion, however, differed from that of Judge Gorsuch’s. However, I believe that analysis is best left to Professor Adler, and I highly recommend that you give his article a read.

I have no doubt that Chevron deference will remain at the center of discussions on the size and scope of federal executive branch agencies. In fact, congressional Republicans recently introduced legislation which would end the use of Chevron deference by courts as just one part of an effort by President Trump’s Administration and Congress to rein in burdensome government regulations. The potential outcome of these efforts could begin a dramatic shift in Washington, D.C. that will occupy legal and political discussions for many years to come.

Pro-life and small government conservatives have a potential win in the nomination of Judge Gorsuch to the Supreme Court. They should not celebrate too soon, however. There is no telling what sort of “jiggery pokery” may surround Judge Gorsuch’s confirmation within the Senate over the next several weeks.

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Ryan Lodata is an attorney working in Northern Virginia. Any conclusions or opinions expressed in this article are those of the author acting in his personal capacity. Linked articles are not necessarily the opinion of the author and are given only for general information purposes. And no information, statements, or conclusions from this article are legal advice and do not create an attorney-client relationship. Should you require legal services, please contact your local bar association.