When Donald Trump released his first list of 11 potential Supreme Court nominees last May, many legal scholars were surprised Neil Gorsuch did not make the cut.
They needn’t have worried.
Gorsuch, a 49-year-old federal appeals court judge from Colorado, made Trump’s second list in September, then quickly emerged as a favorite among conservatives because of his stellar résumé, distinctive writing style and overall legal philosophy.
But Trump likely chose Gorsuch over the federal appeals court judges at the top of his original list, Alabama’s William Pryor and Wisconsin’s Diane Sykes, because he is viewed as a close replica of the late Justice Antonin Scalia, whose seat he will assume if confirmed by the Senate.
“At the heart of Justice Scalia's legacy is the idea that power rests with the people under our Constitution. That is at the core of Judge Gorsuch's judicial record, as well as his extraordinary career overall,” says Leonard Leo, executive vice president of the conservative Federalist Society, which helped guide Trump's decision-making process.
In a recent study of the most likely nominees, Gorsuch and Pryor emerged as the most like Scalia in a variety of facets, such as their strict adherence to the Constitution and the text of existing statutes.
A rugged Westerner who fished with Scalia, Gorsuch was part way down a ski slope last Feb. 13 when his phone rang with the news that the justice had died. The news hit him hard.
"I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears," he said during a speech at Case Western Reserve University School of Law last April.
Gorsuch went on to align himself firmly with Scalia on the role of judges, who he said "should be in the business of declaring what the law is, using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views."
In all of his opinions, Gorsuch is both plain-spoken and entertaining, without the hard-edged sarcasm that Scalia often exhibited.
"He never fails but to produce opinions that are really interesting, captivating and clear," says Howard Bashman, a lawyer whose How Appealing blog tracks the federal appellate courts. "To me, he does seem head and shoulders above the others in terms of his writing style and his intellect.”
Limits on executive branch
Gorsuch has exemplified a strongly held view that the executive branch of government wields too much power. Past Supreme Court precedents, he wrote in an immigration case last year, “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution.”
He also has been a strong defender of religious liberty, siding with the craft store chain Hobby Lobby and the Little Sisters of the Poor in their battles against the Affordable Care Act’s original mandate that employers offer free health coverage for contraceptives even if it violates their religious beliefs.
While he has not ruled directly on some hot-button issues — including abortion — his views in favor of the sanctity of life can be gleaned from his 2006 book, The Future of Assisted Suicide and Euthanasia, which concludes that intentional killing is always wrong.
Gorsuch stood out from the crowd among Trump’s 21 potential justices for several reasons. His academic credentials were impeccable: Columbia University, Harvard Law School (where he was in Barack Obama's graduating class) and a doctorate in legal philosophy from Oxford. He clerked not just for one Supreme Court justice but two: fellow Coloradoan Byron White and Anthony Kennedy. If confirmed, he would be the first former clerk to serve alongside the justice he served.
Unlike judges who spend their entire careers inside or outside Washington, Gorsuch has split his time between the two. His Denver base at the U.S. Court of Appeals for the 10th Circuit gives him the outsider appeal Trump was looking for; the court hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. But he has valuable experience working at the Department of Justice in George W. Bush’s administration and at a major law firm in the nation’s capital.
Politics and policy run in Gorsuch’s blood. His mother, Anne Gorsuch Burford, was President Ronald Reagan’s pick to run the Environmental Protection Agency in the early 1980s. She resigned in 1983 over allegations of political favoritism in toxic-waste cleanups but was never charged.
Unlike Pryor, who was disdained and initially blocked by Democrats from the 11th Circuit Court of Appeals, Gorsuch was confirmed to his appeals court unanimously in 2006. There he has become what’s known as a “feeder judge” — 11 of his former law clerks have gone on to clerk for Supreme Court justices, tied with Pryor for the most among Trump’s prospective nominees.
Interestingly, three of those 11 clerked for liberal Justices Elena Kagan and Sonia Sotomayor, an indication that Gorsuch has not always selected strict conservatives for his chambers.
Not a 'surefire' vote?
“You’d be hard-pressed to find somebody more principled, more thoughtful or with more integrity than Judge Gorsuch,” says Jason Murray, who clerked for him in Denver before moving to Justice Kagan’s chambers.
Murray calls Gorsuch a “relatively reliable conservative jurist” but more like Chief Justice John Roberts than the more “results-oriented” conservatives on the high court. “He’s not going to be a surefire vote for the conservative block,” Murray says.
In the area of criminal law, for instance, Gorsuch has shown the same type of solicitude to the rights of defendants as Scalia did. He is leery of over-interpreting federal criminal statutes, which can give prosecutors too much power.
Harvard Law School lecturer Jane Nitze recalls interviewing with Gorsuch in 2007 for a law clerk's position and "coming away with an impression that this is not just an incredibly brilliant person, but he is just the nicest guy out there" -- someone who takes his former law clerks on annual skip trips in the Colorado mountains.
"I'm not aware of any enemies that he has," Murray says. "Everybody who knows him likes him.”