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Analysis: Gorsuch represents new conservatism

USA TODAY logo USA TODAY 2/1/2017 Richard Wolf

Donald Trump announces Supreme Court nominee Judge Neil Gorsuch, Washington DC - 31 Jan 2017 US President Donald Trump introduces his US Supreme Court Nominee Judge Neil Gorsuch. At Judge Gorsuch's side is his wife Louise. © Mathieson Sr./REX/Shutterstock Donald Trump announces Supreme Court nominee Judge Neil Gorsuch, Washington DC - 31 Jan 2017 US President Donald Trump introduces his US Supreme Court Nominee Judge Neil Gorsuch. At Judge Gorsuch's side is his wife Louise. WASHINGTON — If confirmed by the Senate, Neil Gorsuch won't just restore the conservative tilt that the Supreme Court had before Antonin Scalia's death a year ago. He could help it endure for decades to come.

Thirty years Scalia's junior, the 49-year-old Gorsuch would lend a more contemporary, plain-folks brand of judicial conservatism to a court whose right flank is getting old and a bit out of style. Justice Anthony Kennedy, with whom Gorsuch clerked, is 80. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito are in their 60s.

In Gorsuch, a tall, handsome Coloradoan, President Trump plucked an intellectual leader of the next generation of conservative lawyers. And by touting runner-up Thomas Hardiman of Pittsburgh, like Gorsuch a federal appeals court judge, until the last second, Trump may have hinted at his next high court nomination.

For all the hoopla and hyperbole in the White House's East Room Tuesday night when Gorsuch's nomination was announced, the attention was shared by a missing person: Scalia, whose death Feb. 13 at a Texas ranch led Republicans first to block President Obama from filling the seat and then to search for a Scalia clone.

Enter Gorsuch.

“There’s just an awful lot of Scalia-ness in Gorsuch's views and Gorsuch’s opinions,” says John Malcolm, director of the conservative Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. “He thinks very, very deeply about the fundamental tenets of our democracy. Those are not quaint, fuzzy concepts to him.”

For Gorsuch to go from his Denver-based federal appeals court back to Washington — where he moved as a high school student when his mother, the late Anne Gorsuch Burford, was named to head the Environmental Protection Agency in 1981 — it will take the support of at least eight Senate Democrats or a Republican-engineered change in that body's rules.

The math there is simple: Republicans have to unite their 52 members, which seems likely. Democrats have to decide whether to do likewise in opposition or allow some of their 48 members to vote their conscience — and their politics. About 10 face tough elections next year in states that Trump won.

The battle lines are equally predictable. Conservative groups immediately began spending part of their $10 million bankroll on ads in some of those key states. Liberal groups went to the steps of the Supreme Court to vow firm opposition. That will leave the Senate's few moderate Democrats in the cross hairs for months.

One way or another, it seems likely that Trump will get a conservative nominee confirmed; if not Gorsuch, someone else. Despite their anger at the way Obama's nominee, federal appeals court Judge Merrick Garland, was treated last year, it seems impossible to foresee four years of gridlock.

That's good news for the court, one way or another. It's been limping along with eight justices for 50 weeks, and by the time the Senate votes — most likely in April, at the earliest — it will have been shorthanded for a full term and half of another. In one case last month, recusals by two justices left only six of them to hear oral arguments in an important immigrant rights case.

"Eight is not a good number" for the high court, Justice Ruth Bader Ginsburg acknowledged in the days leading up to the November election. 

Gorsuch's confirmation, whether with Democratic support or a change in the Senate rules to eviscerate the minority party's power to block him, would accomplish three things for conservatives:

If he gets to the court by April, he could tip the balance in some controversial cases involving religious liberty and transgender rights. The court has not scheduled those and other cases for fear of emerging with 4-4 ties that do nothing to advance the law nationally.

Longer term, his presence could spell doom for some of Obama's forays into areas such as health care, immigration and environmental protection— including his plan to combat global warming by regulating power plant emissions, now pending at the U.S. Court of Appeals for the District of Columbia Circuit. 

And in the years to come, Gorsuch could be joined by other Trump nominees to form a more permanent conservative majority. That could happen if Kennedy retires, or if Ginsburg or Justice Stephen Breyer leave the court under any circumstances. 

To replace any of those justices — and thereby transform the court far beyond what a Gorsuch-for-Scalia swap portends — Trump will need more than just Tuesday's element of surprise and a willingness to consult with Democrats as well as Republicans. His next nomination, unlike this one, will be the political equivalent of World War III in Washington.

Only then, if he's successful, would Supreme Court precedents such as those preserving abortion rights and the use of racial preferences be in real jeopardy. For now, with Chief Justice John Roberts running the court and Kennedy straddling the left and right blocs, the change may be minimal. 

But Neil Gorsuch could be there until 2050 or beyond, outlasting all his potential colleagues — and providing enduring consequences.


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