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January 24, 2017 12:49 PM UTC

Colorado Judge Among Final Two for Supreme Court Vacancy

  • by: Colorado Pols
Judge Neil Gorsuch of Colorado may be in line for a Supreme Court spot.

UPDATE: According to the New York Times, Gorsuch and Pryor have emerged as the two finalists for the empty black robe. President Trump said today that he may make his choice public as soon as next week.


Colorado has been well-represented in high-level positions at the White House over the last two decades, a trend that seemingly ended with President Trump. Both President Obama (Ken Salazar) and President Dubya Bush (Gale Norton) selected Coloradans as Interior Secretary, and President Clinton tapped former Denver Mayor Federico Pena as Transportation Secretary. Trump did not select a Colorado son or daughter for his cabinet, but as the Los Angeles Times reports, there may be a job opening on the Supreme Court:

Judge Neil M. Gorsuch, a highly regarded conservative jurist best known for upholding religious liberty rights in the legal battles over Obamacare, has emerged as a leading contender for President Trump’s first Supreme Court nomination.

Gorsuch, 49, was among 21 potential high court candidates circulated by Trump’s team during the campaign, but his stock has been rising lately as several admirers and supporters have been named to positions in the Trump administration.

He currently serves on the U.S. 10th Circuit Court of Appeals in Denver. A former clerk for Justice Byron White, also a Colorado native, and Justice Anthony M. Kennedy, he served in the George W. Bush administration’s Justice Department.

In Gorsuch, supporters see a jurist who has strong academic credentials, a gift for clear writing and a devotion to deciding cases based on the original meaning of the Constitution and the text of statutes, as did the late Justice Antonin Scalia.

Gorsuch is not a new name in the discussion over the Supreme Court (though autocorrect does automatically change the word to “Grouch”). He was included in Trump’s pre-election list of potential justices, but as the Times writes, Gorsuch may be rising in Trumpland. Atlanta Judge William H. Pryor Jr. and Chicago Judge Diane Sykes were believed to be the frontrunners to be nominated to replace Antonin Scalia, whose sudden death last year left a vacancy that Senate Republicans refused to fill under President Obama, but Gorsuch appears to be emerging as a safer, less-controversial choice compared to Pryor or Sykes.


21 thoughts on “Colorado Judge Among Final Two for Supreme Court Vacancy

      1. Agreed, ZMulls. If the choice is between Pryor and Gorsuch, hands down it's Gorsuch.  Much better than a lot on the list. And his opinions are a good read, even if I disagree with the result or reasoning

          1. I have no idea why you'd be sure at all, let alone "pretty."  There's no particular evidence that he is pro-choice.  He was, however, concerned enough about assisted suicide that he wrote an entire book about it.

            In that book, he translated this passage from Roe:

            A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. [Emphasis mine]

            Into this statement, which I find concerning:

            In Roe, the court explained that, had it found the fetus to be a "person" for purposes of the Fourteenth Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother's liberty interests over the child's life. [Emphasis also mine]

            One might also look to his vigorous dissent in Planned Parenthood Association of Utah v. Herbert, in which he may either be firmly defending a particular principle of jurisprudence, or attempting to allow the governor of Utah to quash Planned Parenthood funding after those faked abortion body part videos.

            1. I also saw what you saw, Psue, in looking at Gorsuch's opinions on the SCOTUSblog.

              While I'd like to think that Gorsuch is a classical American defender of religious liberty in the tradition of Jefferson, Franklin, and Adams, instead he seems to be defending a very narrow slice of Christian doctrine that finds birth control and abortion morally abhorrent.  His opinions build walls around Hobby Lobby and Little Sisters of the Poor being able to not provide birth control coverage in employee health plans, for example.

              And he is known for that.

              But the news on cannabis in Colorado may be better;  if Gorsuch is the new SCOTUS nominee,  he is also known for defending something called the "Dormant Commerce" clause. If I'm understanding it (and I don't speak legalbargle), the Dormant Commerce clause defends states rights to transact business as they see fit, and holds back other states rights to restrict it. This would be relevant if, as Nebraska and Wyoming tried to do, a state complained that legalization of cannabis threatened good orderw within neighboring states' boundaries.

              Of course, I could be completely misreading the legalbargle. But on the whole, given the choices, I'd prefer an anti-abortion sane SCOTUS judge who doesn't want to stifle CO's cannabis economy, as opposed to an anti-abortion racist nutcase who can't compose an intelligible sentence. Even Justice Roberts did the right thing on marriage rights when it came down to it.

              1. So, the dormant commerce clause is a legal construction (judges made it up).  The Constitution's Commerce Clause indicates that Congress has the power to legislate interstate (and some other) commerce.  The courts decided that it, therefore, made sense that states couldn't.  That last bit isn't in the Constitution, it was "discovered"– much like the right of privacy described in Griswold, which then led to the inescapable conclusion that abortion also had to be legal in Roe.

                If you look at his ScotusBlog profile, you'll actually see that Gorsuch shares both Scalia's love of originalism and hostility towards constructed Constitutional powers/rights– he is, in fact, opposed to the dormant commerce clause, and likely other "unwritten" constitutional provisions, like that which underpins Roe.

                Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause. [Emphasis mine]

                In the only weed case I could find, Gorsuch ruled against the grower.  It was a disclosure issue in a tax case, and the issue was whether an injunction should be issued against IRS demands for their books.  Really doesn't say anything about his position on weed that I could tell.

                1. Thanks for clarifying Gorsuch's stand on the Commerce Clause. So in your opinion, would Gorsuch still be the least of the three Weevils that might sit on the bench?


                  1. I think you're looking at a Scalia (Gorsuch), a Rehnquist/Roberts (Hardiman), and maybe an Alito/Bork (Pryor).  Personally, I'd take Hardiman, but who knows.  Gorsuch writes pretty, though.

      1. Also known as the facts.  Not the alternative facts, but the actual, objective facts. But make climate change political.  That'll be great for the next generations, assuming they live to experience it


      2. I'm standing front of a crowd of 100 people. In my hand, I hold up an orange. 99 of the people agree with me when I say it's an orange. 1 person yells profusely at me that I'm lying, and that what I have in my hand is an apple

        Now, tell me, is that one person not objectively stupid? 

  1. CBS reports that Pryor was ditched and that Hardiman is in the running. According to folks who study judicial voting records (when there were still three names in the running):

    [T]he shortlist is now rumored to be down to three names: Gorsuch, Hardiman, and Pryor. We have calculated the likelihood that the potential nominees will be the most Scalia-like of the group, and for comparison's sake have added data on Chief Justice John Roberts and Justice Samuel Alito from their time on the D.C. Circuit and Third Circuit, respectively. We find that Gorsuch (62.2-79.4%) and Pryor (70.5-76.7%) have much higher likelihoods of being the most Scalia-like of the potential nominees than Hardiman (34.8-42.9%). In fact, Hardiman looks more like John Roberts (32.6-33.7%) or Samuel Alito (39.4-52.8%) did when they were federal appellate judges.

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