Judge Scalia Euthanasia Essay

“Ours is the job of interpreting the Constitution,” he wrote in a concurrence last year. “And that document isn’t some inkblot on which litigants may project their hopes and dreams.”

While he has not written extensively on several issues of importance to many conservatives, including gun control and gay rights, Judge Gorsuch has taken strong stands in favor of religious freedom, earning him admiration from the right.

In two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing some forms of contraception coverage to their female workers.

He voted in favor of Hobby Lobby Stores, a family-owned company that objected to regulations under the Affordable Care Act requiring many employers to provide free contraception coverage. Similarly, he dissented from a decision not to rehear a ruling requiring the Little Sisters of the Poor, an order of nuns, to comply with an aspect of the regulations.

The Supreme Court ruled in favor of Hobby Lobby in 2014 and vacated the decision concerning the Little Sisters of the Poor in 2016.

Like Justice Scalia, Judge Gorsuch takes a broad view of the Fourth Amendment, which bars unreasonable government searches and seizures.

Judge Gorsuch was born and spent his early years in Colorado, and he returned there when he became a judge more than a decade ago. Michael W. McConnell, who served with Judge Gorsuch on the appeals court and is now a law professor at Stanford, said his former colleague’s Colorado background would add something distinctive to the Supreme Court.

“He’s a Westerner,” Professor McConnell said. “There are so many cases that have to do with the West, and I also think the cultural sensibilities of the West are different. He’s an outdoorsman, and the Supreme Court needs a little bit more geographical diversity.”

In Colorado, Judge Gorsuch is known for his involvement with the outdoors and the local legal community. He lives in unincorporated Boulder County, in a mountain-view community on a property with several horses. He has raised chickens and goats with his teenage daughters, Emma and Belinda, and his wife, Louise, an avid equestrian. He is a black diamond skier and fisherman and hosts regular picnics for his former law clerks with another 10th Circuit judge, Timothy M. Tymkovich.

Judge Gorsuch has not hesitated to take stands that critics say have a partisan edge. He has criticized liberals for turning to the courts rather than legislatures to achieve their policy goals, and has called for limiting the power of federal regulators.

Nan Aron, the president of the Alliance for Justice, a liberal group, said Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than Scalia.”

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”

In a 2005 essay in National Review, written before he became a judge, he criticized liberals for preferring litigation to the political process.

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” he wrote. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

Like Justice Scalia, Judge Gorsuch is a lively and accessible writer. Consider the first paragraph of a 2011 libel decision, which dispensed with the throat-clearing and jargon that characterizes many judicial opinions.

“Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise?” Judge Gorsuch wrote. “The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.”

Judge Gorsuch’s writing differs from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding.

If Judge Gorsuch is confirmed, the court will return to a familiar dynamic, with Justice Anthony M. Kennedy, a moderate conservative, holding the decisive vote in many closely divided cases.

Judge Gorsuch was born in Denver, but he moved to Washington as a teenager when his mother, Anne M. Gorsuch, joined the administration of President Ronald Reagan as the first woman to lead the Environmental Protection Agency. Ms. Gorsuch, known after her remarriage as Anne Burford, resigned under fire from Congress after 22 months.

After law school, he also attended Oxford University in England as a Marshall Scholar, graduating with a doctorate in legal philosophy.

He served as a law clerk for a year to Judge David B. Sentelle, a conservative member of the United States Court of Appeals for the District of Columbia Circuit.

After the appeals court clerkship, Mr. Gorsuch served as a law clerk to Justice Byron R. White, then a retired member of the Supreme Court. As is the court’s custom, Justice White shared his clerk with an active member of the court, Justice Kennedy. (When Judge Gorsuch joined the Denver appeals court, Justice Kennedy administered the oath of office.)

Mr. Gorsuch then practiced law for a decade at Kellogg, Huber, Hansen, Todd, Evans & Figel, a Washington law firm, before serving in the Justice Department from 2005 to 2006.

He is the author of “The Future of Assisted Suicide and Euthanasia,” published in 2006 by Princeton University Press. The book argued that laws banning those practices should be retained.

In a 2002 article reflecting on Justice White’s death, Mr. Gorsuch criticized the Senate’s handling of judicial confirmations. “Some of the most impressive judicial nominees are grossly mistreated,” he said, mentioning two candidates for the federal appeals court in Washington who he said were “widely considered to be among the finest lawyers of their generation.”

One was John G. Roberts Jr., who went on to become chief justice of the United States. The other was Judge Merrick B. Garland, who was confirmed to the appeals court in 1997 after a long delay, but whose nomination to Justice Scalia’s seat last year was blocked by Senate Republicans.

If he is confirmed, Judge Gorsuch will become the 113th justice, taking a seat that has been held not only by Justice Scalia but also by Justice Robert H. Jackson, perhaps the finest writer to have served on the court. “The towering judges that have served in this particular seat of the Supreme Court,” Judge Gorsuch said in his remarks at the White House on Tuesday night, “are much in my mind at this moment.”

But Judge Gorsuch seemed to take special pleasure in remembering the justice who had first hired him as a law clerk, a Westerner whose accomplishments were not limited to the law. “I began my legal career working for Byron White,” he said, “the last Coloradan to serve on the Supreme Court — and the only justice to lead the N.F.L. in rushing.”

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Although there were notable exceptions, Donald Trump famously lost the conservative intelligentsia — and went on to do quite well electorally without us. But conservative scholars will, I predict, be virtually unanimous in their praise of the president’s choice of Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit to succeed Antonin Scalia on the Supreme Court. I know firsthand why: Gorsuch’s combination of outstanding intellectual and personal qualities places him in the top rank of American jurists. If confirmed, as I expect him easily to be, he will certainly be a good justice and has the potential to be a great one.

Gorsuch and I have worked together on academic projects, most notably when I was the editor of the Princeton University Press book series for which he wrote “The Future of Assisted Suicide and Euthanasia” — an impressive, deeply scholarly book that was praised by bioethicists (including the liberal Daniel Callahan and the conservative John Keown) as well as academic lawyers — in 2006. The book critically engages the work of scholars (including myself) across a range of disciplines and representing a spectrum of viewpoints. Gorsuch went the extra mile in ensuring that his treatment of the work of other writers — especially those with whom he disagrees — was sympathetic and impeccably accurate. His sheer fair-mindedness was the thing I found most striking about working with him.

When it comes to fitness for judicial office, the first criterion usually considered is intellect and education, and here Gorsuch is off the charts. Even people who do not share his political outlook or judicial philosophy, but have read his judicial opinions, recognize him as an intellectual superstar. Anyone who has heard him speak, and especially anyone who has spoken with him, probably has had that impression strongly reinforced. His opinions are marked by analytical depth and precision and remarkably lucid writing.

In selecting Gorsuch, President Trump has without question fulfilled his pledge to appoint a justice in the mold of Antonin Scalia — a conservative intellectual leader. Even those of us who refused to get on the Trump train after his nomination have to acknowledge that. But one respect in which Gorsuch is unlike Scalia is that he is not fiery or pugnacious. Rather, his demeanor is scholarly — one might even say bookish. He is not a fierce debater. I recall being with him at an academic conference at which a graduate student contradicted and challenged a comment he had made. Far from bristling or even returning fire, he encouraged the student to develop her argument further, graciously acknowledging merit in the point she had made.

Likewise in the courtroom, he does not interrogate, much less intimidate, the lawyers who appear before him. It is truer to say that he engages them in conversations that enable him to explore the strengths and weaknesses of arguments advanced in their written briefs or address issues he thinks are important but that did not receive sufficient attention in those submissions.

Of course, most people are interested above all in how he is likely to vote on hot-button issues such as abortion, same-sex marriage, gun control, campaign finance reform and religious freedom. In the confirmation hearings, he will no doubt do what another friend of mine, Justice Elena Kagan, did and basically refuse to discuss these issues on the ground that they are likely to come before him. I expect what just about everyone else expects: Gorsuch, who greatly admired Scalia, thinks about the constitutional issues in these areas pretty much the same way Scalia did.

Orthodox conservatives believe that the Constitution should be interpreted in a way that is faithful to the text and guided, where the text is less than perfectly clear in its application to a question, by the original understanding of its framers and ratifiers. Gorsuch, like Scalia — and like every other judge who was on Trump’s list of 21 — is a textualist and an originalist. But he is not dogmatic, and his credentials help explain why.

After studying at Columbia University and Harvard Law School, Gorsuch earned a doctorate from Oxford University, where he was supervised by John Finnis, an internationally acclaimed philosopher of law and a theorist of natural law and natural rights. He won both a Truman Scholarship and a Marshall Scholarship, two of the most prestigious scholarships in American higher education. After completing his education, Gorsuch clerked for Appeals Court Judge David Sentelle, and then for Supreme Court Justices Byron White and Anthony M. Kennedy. He spent a year in the Justice Department and then a decade in the private practice of law with a distinguished firm. He has served on the 10th Circuit since 2006. His record bespeaks intellect and perseverance — although Gorsuch is, nonetheless, remarkably approachable.

If Democrats are looking for a point of vulnerability in either Gorsuch’s integrity or impartiality, they won’t find it. He is basically a Boy Scout. He’s a faithful husband, a good father, a caring neighbor, a generous friend, a man of probity who holds himself to the highest ethical standards. Oh, and he will bring religious diversity to a Court that is entirely Catholic and Jewish: He’s an Episcopalian.

Gorsuch will be a hard man to depict as a ferocious partisan or an ideological judge, which isn’t to say he won’t be described this way by ideologically partisan critics for whom the prospect of a conservative intellectual giant on the Supreme Court is anything but welcome. As Gorsuch himself has frequently observed, including in a widely noted tribute to Scalia, good judges sometimes have to vote or rule in ways they do not like — because that is what the law requires. Indeed, he noted, if a judge does not sometimes find himself voting or ruling against his own personal beliefs about politics or morality, as Scalia himself famously did in holding that the desecration of the American flag is political expression protected by the First Amendment, that is a sure sign that he is failing to do justice according to law. In a democracy, the law never lines up perfectly with anyone’s political and moral beliefs. And it is to the law that judges have sworn a sacred oath of fidelity.

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