Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit, President Trump’s nominee for the Supreme Court, was “taking a breather” in the middle of a ski run when he heard that Justice Antonin Scalia had died. In a speech last April, Gorsuch added that he was “not embarrassed to admit” he cried his way down the mountain. Nearly a year later, Gorsuch is being widely discussed as a possible replacement for Scalia, whom he called in that speech a “lion of the law.” President Donald Trump included Gorsuch’s name on a list of potential nominees to the Supreme Court, and Trump has also reportedly met with the judge.
The judge’s 49 years will make him – despite his gray hair – among the youngest of recent Supreme Court nominees (Justice Clarence Thomas was 43 when nominated, and Chief Justice John Roberts and Justice Elena Kagan were both 50.). In the early 1980s, when Scalia was beginning his judicial career, Gorsuch was just beginning to assemble the glittering résumé that may have him at the cusp of an appointment to the court. President Ronald Reagan’s choice of Gorsuch’s mother, Anne Gorsuch Burford, to head the Environmental Protection Agency in 1981 brought the Denver teenager to Washington, where he attended Bethesda’s Georgetown Preparatory School and won a national debate championship. Gorsuch completed his undergraduate degree at Columbia University, where he co-founded a student newspaper that gave voice to conservative viewpoints, and his law degree at Harvard Law School, which he attended on a Truman Scholarship.
Gorsuch began his legal career in the early 1990s with a series of prestigious clerkships – for Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and on the U.S. Supreme Court for retired Justice Byron White, who shared him with Justice Anthony Kennedy. If nominated and confirmed, Gorsuch would be the first former law clerk to serve on the bench alongside his or her old boss. The Washington law firm Kellogg Huber recruited Gorsuch during his Supreme Court clerkship, but he deferred his start in private practice to attend Oxford University, on a Marshall Scholarship, where he received a doctorate after studying legal and moral issues surrounding assisted suicide and euthanasia under the Australian legal philosopher John Finnis.
Gorsuch has continued to investigate assisted suicide and euthanasia in a book (“The Future of Assisted Suicide and Euthanasia”) and multiple articles in scholarly journals. As he wrote in the Wisconsin Law Review, Gorsuch believes that “any State’s decision to legalize assisted suicide would likely bring with it both benefits and some attendant costs, and, accordingly, the legalization question presents a difficult moral and legal choice.” A utilitarian approach to this choice “will not—and, more fundamentally, cannot—resolve the debate” because “any effort aimed at comparing the benefits and costs of assisted suicide rests on a conceptually flawed premise—namely that there exists a single scale or currency which we can use to measure fundamentally incommensurate goods.” In his book, Gorsuch elaborates on these ideas, proposing as a guiding principle the intrinsic value of human life and arguing that “to act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends.” He suggests a standard that would leave room for patient autonomy while not allowing intentional killing.
Gorsuch went on to a ten-year career with Kellogg Huber, a litigation boutique for which Gorsuch largely represented corporate clients, and a year as the principal deputy associate attorney general at the Department of Justice. On May 10, 2006, President George W. Bush nominated Gorsuch to the 10th Circuit. The Senate confirmed Gorsuch by voice vote following uncontroversial Senate Judiciary Committee hearings that only Sen. Lindsey Graham (R-S.C.) attended. Sen. Patrick Leahy (D-Vt.) did submit written questions on behalf of himself and Sen. Ron Wyden (D-Ore.) that mostly dealt with assisted suicide and euthanasia; Gorsuch wrote in response that he would follow the law rather than personal convictions, and he added that in his writings he has largely defended existing precedent in these areas.
Another person with Gorsuch’s pedigree might be fairly aloof, but “he just isn’t,” says Melissa Hart, a law professor at the University of Colorado, where Gorsuch teaches courses in legal ethics and antitrust law. Hart, the director of the Byron White Center for the Study of American Constitutional Law, says Gorsuch has been “instrumental” for the center – connecting it with speakers, moderating panels and even giving up his weekends to judge high school students in the Marshall-Brennan Moot Court Competition. He also actively makes himself a part of the broader Colorado legal community, attending events sponsored by the Colorado bar association and the Federalist Society, for which just this past week he gave a lecture on “Getting Legal Ethics Right.”
Legal ethics and judicial standards seem to be of particular interest to Gorsuch, and, judging by his comments in his speech about Scalia, he takes seriously the fact that judges swear an oath to uphold the Constitution. Gorsuch has also modeled judicial conduct off the bench. For instance, when he gave the 2013 keynote address at the Federalist Society National Lawyers Convention in Washington, Gorsuch did not follow the pattern of past speakers (including sitting judges) by giving a “rabble-rousing speech” in the hopes of advancing their visibility and careers, according to one Federalist Society member. Instead, Gorsuch spoke more dryly about “law’s irony,” which both constrains and guarantees our freedom. When asked about the choice of topics by Richard Samp of the Washington Legal Foundation, Gorsuch said he felt constrained by the code of judicial conduct not to discuss anything controversial.
Hart suggests that Gorsuch is available, open and sociable “because he’s from Colorado.” And Gorsuch does love the state. He’s an avid fly fisher who enjoys being outdoors. With his wife, Louise, Gorsuch raises horses, chickens and goats, and often arranges ski trips with old friends and new associates from his former law firm. However, Hart adds, she thinks Gorsuch would be willing to move back to Washington, “for the right job.” If Gorsuch does join the bench, she expects she will disagree with many of his rulings, but predicts he has the “smarts and intellectual seriousness” to become a “shaper of the court.”
Andrew Hamm writes for SCOTUSblog. This article has been republished under a Creative Commons licence.