The most important moment of the 2016 presidential campaign happened on February 13, 2016. There were no primaries or caucuses and no one entered or dropped out of the race. Instead, on that day, the world learned of Justice Antonin Scalia’s death on a ranch in Texas. What was an important election against a historic foe quickly turned into a fight for the future of the Supreme Court. Scalia’s death gave progressives an opportunity to switch the Court ideologically, while conservatives stared at decades in the judicial wilderness.
As Donald J. Trump emerged as the frontrunner, his detractors claimed he was too squishy to be trusted with such a monumental task, His closest competitor, Ted Cruz, seemed ideally suited to make such a choice. Cruz and Trump eventually fought for evangelicals in the election and Trump won out. Why? He emerged as a threat to Hillary Clinton and he published a list of twenty-one potential Supreme Court selections. In that list, evangelicals found a possibility, a hope, even if small, the Court could be salvaged, religious liberty might be maintained, and that life, at its most vulnerable, might still be legally protected.
Though the list was largely impressive, I did not trust Trump to follow through on that promise. He has proven me wrong on this point. Tonight, President Trump nominated Neil Gorsuch to replace Antonin Scalia. Gorsuch currently serves on the Tenth Circuit Court of Appeals and is widely recognized as a legal force for Justice Scalia’s ideals.
Generally misunderstood, Scalia argued for a textualism rooted in the context of when laws or amendments were written and initially applied. Critics argue Scalia’s approach improperly binds the present to the past. Scalia, and Gorsuch, believed this interpretive approach instead binds the judge to the law and forces the judicial branch to busy itself with interpretation instead of legislation.
I am not intimately familiar with Gorsuch and I am sure his nomination will elicit strong opposition from Democrats. Neal Katyal, who was acting solicitor general in the Obama Administration, bucks that trend. He has written an op-ed in The New York Times, expressing strong support for Gorsuch’s nomination. Ed Whelan, a true expert on all things judicial, penned a strong endorsement of Gorsuch here. For a solid biographical sketch, see this Politico article.
Four years remain in Donald J. Trump’s term of office. His recent executive order on immigration, refugees, and international travel was at least incompetent and potentially cruel, especially to green card holders. His tweets are still poisonous extensions of presidential power. His inner-circle is shaky and intensely inexperienced in parts. He may be circumventing experts at Defense, State, and Homeland Security. Much can still go wrong. But for conservatives across the land, barring some sort of personal surprise, Trump got this Supreme Court nomination unequivocally right.