First 100 Days

Some Thoughts on the Gorsuch Appointment

Editors’ Note: In the roundtable on President Trump’s First 100 Days, held at the University of Illinois on April 11, 2017, Akhil Reed Amar discussed the appointment of Neil Gorsuch to the Supreme Court and the process that led to filling the vacancy left by the death of Justice Antonin Scalia. (Professor Amar’s commentary at the roundtable event is available for viewing at this link.) According to Professor Amar, “future historians will likely rank the Gorsuch appointment among the biggest achievements of the Trump Administration, especially in its opening months.”

Professor Amar has published a series of op-eds about the Gorsuch appointment in the New York Times, the Los Angeles Times, and the New York Daily News. On the occasion of the Day 100 of the Trump administration, three topics from these essays bear special emphasis:

I. On Originalism

Professor Amar’s March 18, 2017, essay in the New York Times, entitled “What Gorsuch has in Common with Liberals,” takes up originalism—the method of constitutional interpretation that involves close attention to the text of the Constitution’s provisions and their historical meaning and that eschews judicial precedents inconsistent with the originalist approach. Amar’s primary point in his essay is that while Gorsuch identifies as an originalist, originalism itself is not a conservative enterprise—and that we all go astray in thinking of it as such. Amar reminds us of the long tradition of originalist interpretation by liberal members of the Supreme Court. He writes:

The Warren Court at its best was an originalist court, albeit a liberal originalist court. It overturned many precedents and rightly so. Plessy v. Ferguson flouted the Constitution’s explicit promises of racial equality; pre-Warren cases slighted the Constitution’s repeated affirmations of a “right to vote”; early-20th-century precedents ignored other basic rights guaranteed by the 14th Amendment as plainly understood in the 1860s; and pre-Warren jurisprudence also undermined bedrock constitutional rights of political expression. So argued the 20th century’s greatest originalist and the Warren Court’s driving force — the crusading liberal justice Hugo Black, appointed by President Franklin D. Roosevelt.

Accordingly, in Amar’s view, opposition to Gorsuch based on his embrace of originalism was misguided. Amar tells us that Gorsuch’s commitment to originalism is instead an “honorable and admirable trait” that puts him in the company of Chief Justice John Marshall, Justice Joseph Story, President Abraham Lincoln, and other legal giants.

II. On the Court Replenishment Process

In his March 22 essay in the Los Angeles Times, Amar addresses a series of questions about the judicial confirmation process. The title of this essay is itself a question: “Can senators reject Gorsuch for purely political reasons?” Amar’s answer to that is a robust yes. He explains:

The Constitution intentionally provides for an openly political process of Supreme Court replenishment. Voters pick presidents and senators; in turn, presidents and senators pick justices. When one party wins both the presidency and the Senate on Election Day, as happened last November, that party has effectively earned the right to fill a Court vacancy with a competent and upright jurist.

Amar emphasizes a notable aspect in this regard of the Gorsuch appointment: Gorsuch was on the list of potential justices candidate Trump circulated before the election even occurred. Thus, voters knew what to expect (in regard to the Supreme Court) if Trump won the White House. “By sticking to this list,” Amar concludes, “Trump kept faith with the electorate. He also picked someone who is not merely some personal pal or crony. Good for him; good for Gorsuch; good for us all.” Amar tells us also that the Democrats’ opposition to Gorsuch likewise reflected a defensible political commitment to a different vision for the Supreme Court. Nonetheless, Amar notes, had Democrats managed to block Gorsuch, there would be another nominee and that person Democrats might like a good deal less—an issue that should weigh in party-line opposition to a president’s choices.

Amar also offers, in his essay, an innovative way to restructure the confirmation process so as to generate additional information about a nominee’s views on legal issues. He proposes:

In the future, hearings should become a two-part process in which the conversational component (akin to the court’s oral arguments) is followed by a writing phase (akin to the drafting of court opinions). In phase two, the nominee (with the help of handpicked law clerks) should be required to draft short concurring or dissenting opinions on a handful of previously decided Supreme Court cases — say, three from last year and three from earlier eras.

While nominees would not make promises about how they would judge future cases, the writing phase of the process would result in a more complete record than the oral-hearings produce.

III. On the Nuclear Option

In his April 8 essay, “The Senate’s Filibuster Follies,” published in the New York Daily News, Amar tells us that the nuclear option —the elimination of the filibuster for Supreme Court nominees that preceded the vote on Gorsuch—is nothing to fear. Indeed, Amar explains, the nuclear option is more properly called the constitutional option because simple-majority rule is more consistent with the overall structure of the Constitution and the recent use of the filibuster represents a break from the Senate’s own longstanding historical practices.

While politicians from both sides of the political aisle have lamented the elimination of the filibuster that preceded the Gorsuch vote, Amar sees little threat to the Senate’s traditions of cooperation and respect for the views of the minority party. Amar notes that, in contrast to the members of the House of Representatives, Senators serve for six years and thus do not face short-term electoral consequences when they reach across the political aisle; many Senators represent swing states (whereas House districts tend to be more plainly red or blue); and in a chamber of 100, cooperation comes quite naturally. Indeed, Amar reports that he advised Senate Democrats in 2013 to use the constitutional option to confirm certain lower-court judges—with the full understanding that control of the Senate would eventually change hands and that majority rule might also be extended to Supreme Court nominees in the way that has now occurred.

* Sterling Professor of Law and Political Science, Yale University.