The Cable

Trump’s SCOTUS Pick Might Just Give Him Trouble in the Courts

Justice Neil Gorsuch is wary of executive action, and rarely believes in bending founding fathers’ interpretation of the constitution.

Judge Neil Gorsuch (C) and his wife Marie Louise look on, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017.
Trump named Judge Neil Gorsuch as his Supreme Court nominee. / AFP / Brendan SMIALOWSKI        (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Judge Neil Gorsuch (C) and his wife Marie Louise look on, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. Trump named Judge Neil Gorsuch as his Supreme Court nominee. / AFP / Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

President Donald Trump has chosen 49-year-old Colorado Circuit Judge Neil Gorsuch of the 10th court of appeals to fill the vacant U.S. Supreme Court seat of late Justice Antonin Scalia. The pick is expected to appease traditional conservatives, as Gorsuch mostly fits Scalia’s mold in his education, opinion, and — apparently — “lyrical writing style.”

And it is expected to mollify some liberals, who will “find very little to fault,” according to Mark Hansen, a former partner of Gorsuch at Kellogg Huber Hansen, an elite D.C.-based litigation boutique. Certainly, he was considered appealing to both parties in 2006, when he was confirmed by a unanimous voice vote in the Senate.

But what might it mean for America’s foreign policy — and for citizens around the world?

It’s difficult to read the tea leaves on the international impact Gorsuch’s seat on the bench will have, given that his experience has been so domestically focused. But what seems likely is that Gorsuch, who is a strict supporter of delivering verdicts based on the constitution as it was written, is also wary of executive overreach.

In a 2016 decision regarding immigration law, Gorsuch argued that while it is currently judicial precedent to defer to federal agencies to interpret laws, and change their interpretations as they see fit, this left citizens not beholden to the laws under which they live, but under the agencies’ ever-changing interpretations of them.

“Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists?” Gorsuch writes.

That could spell trouble for Obama’s legacy of environmental regulations, which stretched legislation to the extreme at times, but which enjoyed judicial deference to agency interpretations. Europe and China may now really rue American participation in the fight against climate change.

But this wariness of federal interpretation of the law may prove troubling for the executive-power-happy modus operandi of the Trump administration as well.

“Gorsuch, to a greater degree than Scalia, is known to be skeptical of deference to governmental agencies, and so might actually be troublesome for immigration reforms pushed by the administration,” said Columbia Law School Professor Philip Bobbitt, who specializes in constitutional law and international security, told Foreign Policy.

In his 11 days in office, Trump has issued numerous executive actions, some of which amount to little more than press releases, but some of which — namely, a ban on immigration from seven Muslim-majority countries — have wide-reaching implications and are currently being contested in court.

It is possible that one such contestation could make it to the Supreme Court, where the question would be whether Gorsuch stays true to his small government roots or rules in favor of the administration that put him on the bench. Or not: Immigration statutes give the president plenty of leeway in setting standards for entry, rather than deferring to legislation alone.

Some are already flagging that, sterling academic and legal credentials aside, Gorsuch takes his cues from Christianity as much as the constitution.

A statement from the Center for Inquiry noted that, in Summum v. Pleasant Grove City (10th Cir. 2007), Gorsuch’s dissent implied the government should be allowed to place a Ten Commandments monument in a public park, and that he wrote of Roe v. Wade, “no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.”

Bobbitt, for his part, believes that because Gorsuch is not so prudential, he poses “a real threat to Roe V. Wade.”

“President Trump has chosen to staff his administration with individuals who are openly antagonistic to America’s secular principles, and he has issued draconian executive orders targeting abortion rights overseas, barring Muslims from entry into the country, and prioritized Christians over non-Christians,” Robyn Blumner, President and CEO of Center for Inquiry, said in the same statement.

Others are more enthusiastic. On Tuesday, Ramesh Ponnuru wrote in the conservative outlet National Review that Gorsuch was recommended for “his reputation for legal excellence and his relative lack of controversy.” And Senate Majority Leader Mitch McConnell (R-Ky.) lauded the president’s “outstanding decision” and Gorsuch’s “long record of faithfully applying the law and the Constitution.”

It is now for the rest of the Senate to decide, with Democrats knowing that pushing a filibuster on this vote could prompt Republicans to nuke the minority party’s one hole card. They might be tempted to save that weapon for Trump’s next Supreme.

Robbie Gramer contributed to this article. 

Photo credit: BRENDAN SMIALOWSKI/AFP/Getty Images

Ruby Mellen is a fellow at Foreign Policy. @RubyMellen

Emily Tamkin is a staff writer at Foreign Policy covering ambassadorial and diplomatic affairs in Washington. @emilyctamkin

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