9 Things You Should Know about Neil Gorsuch and Supreme Court Confirmations

Neil Gorsuch, President Trump’s nominee to replace the late Justice Antonin Scalia on the Supreme Court, is scheduled to start his confirmation hearing before the Senate Judiciary Committee today. Here are nine things you should know about Judge Gorsuch and the Supreme Court confirmation process:

1. Neil Gorsuch, age 49, was born in Denver, Colorado, and educated at Columbia University (BA), Harvard Law School, (JD), and University College in Oxford, England (DPhil). He previously served in private practice at the Washington, D.C., law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, and served as principal deputy to the associate attorney general and acting associate attorney general, U.S. Department of Justice. He was appointed as a judge to the U.S. Court of Appeals for the Tenth Circuit by George W. Bush.

2. In his judicial philosophy, Judge Gorsuch is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted, and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning.

3. Out of the six justices in American history who have previously served as law clerks for the Supreme Court, three are currently on the bench: John Roberts, Stephen Breyer, and Elena Kagan. Gorsuch would not only be the fourth, he would also be the first justice to have served as a former law clerk of a sitting justice (Anthony Kennedy).

4. Concerning his religious affiliation, it’s unclear whether Gorsuch considers himself to be Catholic or Episcopalian. The judge currently attends worship with his wife (who was born in England) and two daughters at St. John's Episcopal Church in Boulder, Colorado. However, when the Gorsuch family were members of Holy Comforter, an Episcopal parish in Vienna, Virginia, from 2001 to 2006, Judge Gorsuch listed his religion as Catholic, and there is no record that he formally joined the Episcopal Church. If he’s a Catholic, Gorsuch will be the sixth Roman Catholic serving on the court, along with Samuel Alito, Anthony Kennedy, John Roberts, Sonia Sotomayor, and Clarence Thomas. If he’s Espicopalian, he’ll be the first Protestant on the Court since Justice David Souter, also an Episcopalian, retired in 2009.

5. In 2006 Gorsuch wrote a book titled The Future of Assisted Suicide and Euthanasia, which makes the case against legalization. (However, during his confirmation hearing he said he would follow the law rather than personal convictions, and that in his writings he has largely defended existing precedent in these areas.) In the book he considers euthanasia and assisted suicide to be essentially “consensual homicide” and writes, “[I]t is simply not acceptable when we are deciding who is and is not treated as fully human . . . it is incompatible with the promise of equal justice under law that any of us should feel at liberty to sit in judgement to decide who is and who is not entitled to the benefits of that promise.”

6. The “Appointments Clause” of the U.S. Constitution (Article II, Section 2, Clause 2) says “The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .” But the process of nominating and confirming Supreme Court justices is not outlined in the Constitution. The president can even change his mind about appointing a nominee after he or she has been approved by the U.S. Senate. As the Heritage Guide to the Constitution explains, “The Senate's consent is advisory because confirmation does not bind the President to commission and empower the confirmed nominee. Instead, after receiving the Senate's advice and consent, the President may deliberate again before appointing the nominee.”

7. Because the nomination process is not dictated by the Constitution or any federal statute, it is, as David Lat and Kashmir Hill notes, a “creature of political custom and tradition. As such, it could be readily changed, if the president and the Senate could agree on how.” Many features of confirmation hearings are therefore of relatively recent origin. For instance, the first televised hearings were in 1981 with Sandra Day O’Connor, and the first nominee to be, as Lat and Kashmir say, “aggressively questioned about his views on specific cases and overall judicial philosophy” was John Marshall Harlan in 1955.

8. During their Senate hearings Supreme Court nominees are often asked their opinion about controversial cases, such as Roe v. Wade. But it has become a custom, Gerard V. Bradley says, for nominees to “refrain from offering a candid, up-or-down judgment of any standing Supreme Court precedent. By ‘standing,’ I simply mean a case that has not been overruled. Nominees do not hesitate to say that Dred Scott (slavery) or Plessy (segregation) was a mistake.” For example, Clarence Thomas, David Souter, Anthony Kennedy, and Sandra O’Connor all declined to comment when asked their opinion on the landmark abortion case. And in his 1986 hearing, Antonin Scalia even refused to say what he thought of the 1803 case Marbury v. Madison. As Scalia said, “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.”

9. Since the Supreme Court was established in 1789, presidents have submitted 162 nominations for the Court, including those for chief justice. Of this total, 124 were confirmed (7 declined to serve). Since 1900, only three presidents have had a nominee rejected (Herbert Hoover, Richard Nixon [twice], and Ronald Reagan), and one president had no action taken on his nomination (Barack Obama). 

This article originally appeared on TheGospelCoalition.org. Used with permission. 

Joe Carter is an editor for The Gospel Coalition, the editor of the NIV Lifehacks Bible, and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator. You can follow him on Twitter.

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Publication date: March 20, 2017