Senators will have plenty to review as Supreme Court nominee Neil Gorsuch enters his confirmation hearing Monday — his record on and off the bench runs deep.
A Fox News analysis of that record — including some 3,000 rulings he has been involved with — reveals a solid, predictable conservative philosophy, something President Trump surely was attuned to when he nominated him to fill the open ninth seat. The record in many ways mirrors the late Justice Antonin Scalia’s approach to constitutional and statutory interpretation.
And the Colorado native’s flair for colorful opinion writing is much in the mold of Scalia, whose sharp pen and wicked wit delighted conservatives -– and whose seat Gorsuch would fill if confirmed.
As Gorsuch wrote in 2015, “Ours is not supposed to be the government of the ‘Hunger Games’ with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse.”
The issues he has confronted vary widely — from libel to capital punishment to regulatory enforcement and tax subsidies. But the overall message remains consistent: less is more when it comes to interpreting the rule of law.
Perhaps his highest-profile case while on the 10th Circuit – where Gorsuch has served for the past decade – was a 2013 concurrence supporting the right of for-profit, secular institutions (and individuals too, he argued) to oppose the Obama administration’s mandate to provide contraceptives to their workers. Gorsuch affirmed his past ardent commitment to religious freedom against claims of government “intrusion.”
In the so-called “Hobby Lobby” case, the judge concluded, “For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
Gorsuch later supported the right of religious non-profits, like Catholic charities, to also challenge the contraceptive coverage mandate.
The Supreme Court later partially vindicated Gorsuch’s views on both cases.
Sometimes, the judge’s conservative bona fides collide, as in the case of a notorious Wyoming inmate.
Andrew Yellowbear, a Native American who murdered his daughter, wanted to use an existing sweat lodge in the prison facility as part of his religious tradition. Gorsuch wrote the majority opinion that under a federal law, the inmate deserved that right, striking down the state’s discretionary correctional policy.
It was a setback for law-and-order advocates.
“While those convicted of crime in our society lawfully forfeit a great many civil liberties,” he concluded, “Congress has instructed that the sincere exercise of religion should not be among them– at least in the absence of a compelling reason. In this record we can find no reason like that.”
In his questionnaire to lawmakers, the nominee said none of his own written opinions were ever reversed by the Supreme Court.
One of Gorsuch’s off-the-bench remarks is generating some concern — a 2005 opinion piece in “National Journal,” written shortly before he donned the judicial robes.
“American liberals have become addicted to the courtroom,” he wrote, “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. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
And Gorsuch’s 2006 book, “The Future of Assisted Suicide and Euthanasia,” has both worried and encouraged some fellow conservatives. His conclusion that the doctor-approved procedure was “essentially a right to consensual homicide” might be used by as a red flag by abortion rights activists and death penalty opponents as a parallel argument, even though Gorsuch made clear in the book it should not.