WASHINGTON – Is there really a “replacement” for the Justice Antonin Scalia among the three candidates on President Donald Trump’s short list of potential nominees for the U.S. Supreme Court?
That’s what Trump said he was looking for in his first big judicial nomination – someone who could fill the very big shoes of Scalia, a constitutional scholar and gifted writer and communicator who always seemed to please those who opposed legislative-style decisions by the court in favor of being guided by original intent.
According to White House sources, the short list is down to Neil M. Gorsuch, a federal judge on the United States Court of Appeals for the Tenth Circuit since 2006, William Pryor, a judge from Alabama, and Judge Thomas Hardiman of Pennsylvania.
With a razor-thin Republican majority in the Senate, the nominee will need at least at Democrat votes to block a filibuster by the minority party stunned and angered by the whirlwind of action taken by Trump in the first week of in a week of dizzying appointments, executive orders and radical policy shifts from the previous eight years of the Obama administration.
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So who are these potential nominees and what might their appointments mean for the direction of the third branch of government?
Gorsuch didn’t face any organized opposition in the Republican-controlled Senate when he was appointed to the Tenth Circuit by President George W. Bush, but that doesn’t mean he, like the others on the list, won’t be diced, shredded, pounded and grilled by angry Democrats reeling from a feeling of impotency and powerlessness.
Born Aug. 29, 1967, in Denver, Colorado, Gorsuch’s mother, Anne Gorsuch Burford, was the first female head of the Environmental Protection Agency under President Ronald Reagan. Gorsuch earned his B.A. from Columbia University in 1988, his J.D. from Harvard Law School in 1991, and his D.Phil. from the University of Oxford in 2004. While at Columbia, Gorsuch co-founded the Federalist newspaper and a magazine, the Morningside Review.
Previously he served as principal deputy, associate attorney general for the U.S. Department of Justice from 2006 through 2006. Prior to that he was in private practice. He was a law clerk for Supreme Court Justices Byron White and Anthony Kennedy. The U.S. Senate confirmed his appointment to the Court of Appeals by voice vote and was rated unanimously well-qualified by the American Bar Association at the time.
After Gorsuch’s confirmation, Above the Law contributor David Lat said, “Judge Neil Gorsuch is one to watch. He’s brilliant, he’s young, and he’s incredibly well-connected. Look for him to rise through the ranks of Supreme Court federal judges in the years to come – and, perhaps, to be nominated to the Court himself someday.”
On Sept. 23, 2016, Gorsuch was included in a second list of individuals Republican presidential candidate Donald Trump “would consider as potential replacements for Justice Scalia at the United States Supreme Court.”
If Trump was looking for someone to offer the kind of inspiration, gravitas and stature of Scalia, he may have found one in Gorsuch. A analysis of the nominee by the SCOTUSBlog website identified parallels between the legal approaches of Gorsuch and the late Scalia.
“With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out,” the report said. “For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie.”
Carrie Severino, policy director and chief counsel for the Judicial Crisis Network had this to say about Gorsuch: “He has a clear record of a consistent judicial philosophy and applying that in action. … One of the real values here is he’s someone with solid record and we’re able to assess his experience. Conservatives are still concerned about the ‘David Souter effect.'”
The “Souter effect” is certainly a concern by many conservatives who have been promised originalist appointments in the past, only to see some, notably Souter, devolve into knee-jerk progressives after some time inside the beltway.
Last month, law professor Justin Marceau described Gorsuch as “a predictably socially conservative judge who tends to favor state power over federal power … a judge who, while perhaps not as combative in personal style as Justice Scalia, is perhaps his intellectual equal … and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.”
In 2013, Gorsuch gave the 13th Annual Barbara K. Olson Memorial Lecture established by the Federalist Society in 2001 in honor of Barbara Olson, wife of former U.S. solicitor general Ted Olson, who died in the attacks of Sept. 11, 2001.
Of particular note was Gorsuch’s dissent in the Tenth Circuit’s denial of rehearing en banc in Planned Parenthood Association of Utah v. Herbert. As background, in the aftermath of the Center for Medical Progress’ release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood’s Utah affiliate. But after the district court denied Planned Parenthood’s request for a preliminary injunction against Herbert’s directive, a divided panel ruled that Planned Parenthood was entitled to a preliminary injunction.
His position on the “life” issue was fairly laid out in his book, “The Future of Assisted Suicide and Euthanasia,” which, noted Princeton University Press, “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate — the idea that human life is intrinsically valuable and that intentional killing is always wrong.”
As per Judge William Pryor of the 11th Circuit Court of Appeals, WND reported earlier this month that the Judicial Action Group found an “objective review of Judge Pryor’s decisions in Glenn v. Brumby and Keeton v. Anderson-Wiley leads to the conclusion that he has failed to interpret the Constitution as the framers intended.”
“Accordingly, he lacks support from many conservative leaders who, like President-elect Trump, believe that Justice Scalia’s seat must be filled with a nominee who has a deep record of commitment to the Constitution,” the report said.
The Glenn case centered on a claim by a man who wanted to be a woman that he suffered discrimination when he dressed as a woman and went to the office, a move his supervisor perceived as disrupting operations. The organization reported that in the Glenn case, Pryor “concurred with the court’s opinion to create a new transgender right to employment and bathroom nondiscrimination.”
But Pryor offered “no analysis of the text of the law or constitutional provisions and failed to cite one case of binding precedent from either the U.S. Supreme Court or the United States Court of Appeals for the 11th Circuit.”
“Pryor’s vote in Glenn is the best evidence of how he would vote on the Supreme Court,” the group found. “In most lower court cases, judges vote consistently with binding precedent even if it is not the precedent they would create. However, in the Glenn case there was no binding Supreme Court and Eleventh Circuit precedent on ‘transsexual rights,’ which makes the case analogous to a Supreme Court case and, therefore, highly indicative of how Pryor would vote on the Supreme Court.”
Pryor supported the result in the Keeton case in which Augusta State University expelled a female Christian student for refusing to engage in a “remediation” plan imposed because of her conservative and religious views on homosexuality.
On Monday, an organization called the Personhood Alliance, a pro-life organization, cited the same cases in contending Pryor would not meet the requirements already established by Trump that his nominee be in the mold of Scalia.
“Not only did Judge Pryor personally prosecute Alabama Judge Roy Moore over his display of the Ten Commandments as attorney general of Alabama,” said Daniel Becker, founder of Personhood Alliance, “but once he became a federal appeals judge, he issued rulings extending special rights to transgender people while refusing to recognize the religious liberty rights of Christians.”
The organization said the “comparison between Judge Pryor and Justice Scalia couldn’t be starker.”
“In Obergefell, Justice Scalia refused to go along with the majority’s opinion mandating same-sex marriage, wrote Becker. “Yet several years before Obergefell, in two cases decided on the same day in 2011, Judge Pryor as an Eleventh Circuit judge voted (1) that the Equal Protection Clause required reinstatement of a male employee who had been fired for wanting to appear at work dressed as a woman and (2) that a state university did not violate the speech or religious rights of a Christian student who was expelled from a graduate counseling program for refusing to submit to homosexual indoctrination.”
Scotusblog profiles Pryor with information about many of his key decisions, including conservative causes such as enforcing criminal law, capital cases, immigration and civil rights. But the site also confirms his pro-LGBTQ votes in several key cases. In one of those, it explains, Pryor “discussed the evolving view of homosexuality in the psychiatric profession.”
Pryor was praised by the chairman of the Alabama Democrat Conference back in 2003 and promoted by President Obama to the bipartisan United States Sentencing Commission.
Then there is Judge Thomas Hardiman of Pennsylvania.
Born July 8, 1965, he serves on the Third Circuit Court of Appeals and is seen as a supporter of the Second Amendment and has argued in favor of a county government’s decision to display the Ten Commandments.
He went to college at the University of Notre Dame on an academic scholarship, receiving a B.A. (and becoming the first person in his family to graduate from college) in 1987. He studied law at Georgetown University Law Center, where he served as an editor of the Georgetown Law Journal and a member of the moot court team, while working at law firms during the summers and academic terms to help pay his tuition. He received a J.D. with honors in 1990, and in 2010 received the law school’s Paul R. Dean Award for distinguished alumni.
Hardiman was appointed by President George W. Bush to be a judge of the United States District Court for the Western District of Pennsylvania. He was nominated to that position on April 9, 2003, and confirmed by voice vote Oct. 22, 2003.
Hardiman was subsequently nominated to the Third Circuit by President Bush Sept. 13, 2006. He was confirmed to that seat over seven months later by the U.S. Senate March 15, 2007 by a vote of 95-0. He was the seventh judge appointed to the Third Circuit by Bush.
The significance of the nomination by Trump couldn’t be more pronounced given the balance of the Supreme Count is at stake, with three conservative justices, one swing vote and four solid liberal jurists in place for the time being.