This column by ACRU Fellow Ken Klukowski was published March 8, 2017 by Breitbart.
WASHINGTON — National legal experts analyzed Judge Neil Gorsuch’s judicial record at a Heritage Foundation forum on Wednesday, predicting a conservative intellectual to succeed Justice Antonin Scalia.
Heritage hosted an event entitled, “What Sort of Judge is Neil Gorsuch? A Closer Look at His Cases,” featuring three top national experts to examine President Donald Trump’s nominee for the nation’s highest court.
First was Boyden Gray, a famous Supreme Court litigator who is a former law clerk to Chief Justice Earl Warren, White House counsel under the first President Bush, and U.S. ambassador to the European Union.
“The best part of what Gorsuch has done is taken on the administrative state,” Gray began, going on to discuss to how much deference courts give to government agencies on how to interpret statutes and make regulations. This was also a reference to courts invalidating administrative actions under laws like the Religious Freedom Restoration Act (RFRA) when those agencies adopt rules that violate religious-liberty rights.
Referring specifically to what is called Chevron deference (named after a major Supreme Court case), the net effect of such judicial deference is it “emasculates Congress and does the president no favors either, unless he’s a liberal.”
Second was Mike Carvin, a partner at Jones Day who has argued many of the past decade’s most important constitutional cases at the Supreme Court.
“This guy goes deep,” Carvin said of Gorsuch, describing him as someone who thoroughly explores “every rabbit hole” offered by lawyers arguing at his Denver-based appeals court. Carvin added that Gorsuch routinely responds with a “meticulous” analysis to such arguments, instead of merely brushing them aside, as Carvin admitted he would do himself if he were a judge listening to such arguments.
Gorsuch is particularly good on First Amendment rights, Carvin continued, showing “sympathy for political speech” and favoring “muscular protections” for rights of expression.
Third was Ed Whelan, president of the Ethics and Public Policy Center, and formerly both a Scalia law clerk and deputy assistant attorney general at the Justice Department’s Office of Legal Counsel.
Whelan characterized Gorsuch as an “eminently worthy successor” to the justice for whom Whelan had clerked, adding that there was perhaps no higher praise he could offer. Whelan was especially concerned about government actions and judicial opinions that are “deeply hostile to the American tradition of religious liberty,” expressing optimism that Gorsuch would be a vote toward building a Supreme Court majority that could reverse that trend.
The Senate Judiciary Committee will begin holding confirmation hearings on Gorsuch’s nomination on March 20, with Senate Republican leadership planning to have him on the High Court before the Court begins its final two-week sitting for the current annual term on April 17.