Donald Trump taps Neil Gorsuch for the Supreme Court

By S.M. | NEW YORK

ON JANUARY 31st, in a live, prime-time television broadcast, Donald Trump announced that Neil Gorsuch was his choice to replace Antonin Scalia, the conservative Supreme Court justice who died nearly a year ago. Mr Trump said his pick has "outstanding legal skills...tremendous discipline and bipartisan support". Indeed, when Mr Gorsuch, who is 49, was nominated to the Colorado-based Tenth Circuit Court of Appeals by George W. Bush in 2006, he sailed through the Senate by a voice vote. This time, with the ideological tilt of the Supreme Court hanging in the balance and Democrats fuming over their Republican colleagues’ stonewalling of Merrick Garland, Barack Obama’s choice to fill the seat, the nominee will face a tougher crowd. But Mr Gorsuch is a scholarly, refined jurist whom Democrats will be hard-pressed to vilify. In contrast to William Pryor, another judge shortlisted for the seat, who once called Roe v Wade "the worst abomination" in the history of constitutional law, Mr Gorsuch is not given to the sort of incendiary remarks that could haunt him in confirmation hearings.

On many issues dear to conservatives Mr Gorsuch is a perfect match. He provides little relief for condemned prisoners appealing their death sentences, has been solicitous of religious corporations and nuns seeking exemptions from Obamacare’s contraceptive mandate and rejects liberal objections to public religious displays like the Ten Commandments in public parks. Mr Gorsuch has also signalled deep scepticism about a line of Supreme Court decisions giving wide latitude to federal agencies. His unwillingness to defer to bureaucracies complements the small-government ethos that prompted the executive order Mr Trump announced on January 30th slashing business regulations. And although Mr Gorsuch has never written a legal opinion addressing Roe v Wade, it seems clear he is—personally, at least—pro-life. In his 2006 book, "The Future of Assisted Suicide and Euthanasia", Mr Gorsuch wrote that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong”.

Like every justice on the bench today, Mr Gorsuch is a product of the Ivy League, with degrees from Columbia and Harvard. Before returning to Denver, his birthplace, to begin his stint at the Tenth Circuit, Mr Gorsuch served as a clerk to two Supreme Court justices, including one who is still on the bench: 80-year-old Anthony Kennedy. After this, Mr Gorsuch headed to Oxford on a Marshall Scholarship where he studied the ethics of euthanasia, eventually earning a doctorate. He spent a decade at a boutique Washington, DC law firm and a year working in the Justice department of George W. Bush.

Two months after Mr Scalia’s death, Mr Gorsuch praised the late justice as a “lion of the law” whose “great project" was to denote “the differences between judges and legislators”. Lawmakers properly consult “their own moral convictions and claims of social utility” when crafting policy, he said, but judges must “strive...to apply the law as it is”. They should look only to “text, structure and history”, not to the way they would like the world to look. As an advocate of Mr Scalia’s judicial philosophy of originalism—whereby judges ask what the constitution meant when it was adopted—Mr Gorsuch has developed a highly conservative paper trail as an appellate judge and cheers from the Federalist Society and the Heritage Foundation, two stalwart organisations of American conservativism.

Mr Gorsuch also shares Mr Scalia’s literary talents: he is an elegant writer with a penchant for playful erudition. In a speech in 2014, Mr Gorsuch framed his exploration of “law’s irony” in terms of a Dickens novel, weaving in references to Cicero, Demosthenes, Kant, Goethe, Burke and Shakespeare. But he’s hardly stuffy. Mr Gorsuch also peppered the talk with contemporary culture, quoting David Foster Wallace and joking that the so-called “modern” rules of civil courts date back to 1938: “Maybe the only thing that really sounds new or modern after 70 years,” he said, “is Keith Richards of the Rolling Stones. Some might say he looks like he’s done some experimenting too.”

Mr Gorsuch may have ample charm and talent, but Senate Democrats have pledged to fight any nominee Mr Trump puts forward. With only a 52-to-48 edge, Republicans cannot rely on their majority to get Mr Gorsuch confirmed: Senate rules permit the minority party to wage a filibuster that only a 60-vote supermajority can quell. If Democrats resist a planned $10m advert campaign to persuade them to give Mr Gorsuch a vote, the only path to filling the ninth seat may be to summon the “nuclear option”—a simple majority vote to change Senate rules and abolish the filibuster for Supreme Court nominations. Mr Trump has said Republicans should do this, if necessary, but so far Mitch McConnell, the Senate majority leader, has been noncommittal. “That’s a Senate decision,” he told Mr Trump. Mr McConnell promises results, however. “We’re going to get this nominee confirmed,” he says.