CAMBRIDGE, MASSACHUSETTS – “Was that a surprise?” asked U.S. President Donald Trump on Tuesday night after the pseudo-drama of the reality-show-style bakeoff between two finalists whittled down from a list of 21. Well, no. Trump’s Supreme Court pick was resoundingly predictable. I say that simply because I did predict the selection of Judge Neil Gorsuch back on Nov. 16 — based on his close fit to the profile sought by conservative legal elites.
There was nothing very deep about my prediction. Having promised to leave the decision to the Federalist Society, Trump did exactly that. He gave them an intellectual who went to Harvard Law School like Justice Antonin Scalia (and five other members of the current court); studied in Oxford as a Marshall scholar like Justice Stephen Breyer; clerked on the Supreme Court like three other sitting justices; and has been reliably conservative for years. He even looks like the TV version of a Supreme Court justice, complete with silver hair and a firm jaw.
Now comes the Democrats’ challenge: Should they filibuster Gorsuch, who is conservative but not necessarily an ideologue? If they do so, and try to depict him as “out of the mainstream” — and fail to block him if Senate Republicans use the nuclear option to end the filibuster — they run the risk of alienating him and driving him further to the right.
That could be a great mistake. Over time Gorsuch has the capacity to be more a John Roberts than a Samuel Alito — more committed to judicial restraint than to consistently toeing the conservative party line. He might even move in the direction of Anthony Kennedy, for whom he once clerked, and become (dare we say it?) more liberal with time.
It’s well worth noting that when it came down to it, Trump utterly spurned picking an “ordinary man” jurist, such as Judges Thomas Hardiman or William Pryor, in favor of a member of the superelite. Worse, he even gave Hardiman the further humiliation of asking him to come to Washington as part of the false-flag operation to keep the news media interested in his pick.
Hardiman, the first person in his family to attend college, went to the University of Notre Dame on a scholarship, and drove a cab to put himself through Georgetown Law School. Pryor went to the University of Louisiana at Monroe.
Gorsuch is the son of a Reagan administration Cabinet official who went to a Washington prep school, Columbia University and Harvard Law School. He excelled academically, winning a Truman scholarship and Marshall scholarship. At Oxford, where Bill Clinton never finished a degree, Gorsuch earned a doctorate. Then he earned clerkships on the D.C. Circuit Court of Appeals and the Supreme Court, signs of tremendous success in law school.
I went through each and every one of these same competitions for scholarships and clerkships myself, and I’m here to tell you that this isn’t nothing. Not one of these brass rings is easy.
It no doubt helped Gorsuch, as it helped me, to be white and male and at ease in academic circles. But plenty of privileged white men tried for all these prizes and jobs and got none or one of them. Gorsuch essentially hit the jackpot. Legally speaking, it doesn’t get more elite.
And precisely this pedigree raises the possibility that Gorsuch isn’t an extremist, but is capable of evolving in a more moderate direction. At every stage, he’s shown he can work within the existing system and value structure — not to break the system down, but to build it up while taking a conservative stance.
Take Gorsuch’s book on assisted suicide and euthanasia, for example, which grew out of his doctoral dissertation. It isn’t a work of ideological extremism but a nuanced and even fairly balanced treatment of hard moral and legal questions.
The dissertation was directed by the Oxford scholar John Finnis, known for his conservatism and commitment to natural law. But Gorsuch didn’t mount an ideological case, or one grounded overtly in natural law thinking. He didn’t turn to God or theology.
He instead asserted that human life is a “basic good,” modestly admitting that “I do not purport that I can ‘prove’ the existence of basic goods or moral absolutes by reference to logical syllogism.” He adverted to “practical, pragmatic experience” as the way to show the essential nature of life.
Or consider Gorsuch’s clerkship for Justice Byron White, a John Kennedy appointee who was essentially a centrist pragmatist. After White retired, Gorsuch went to work for Anthony Kennedy, who was more conservative at the time but has since evolved into a liberal hero.
Kennedy and Gorsuch are, I’m reliably told, still on warm terms. That says something. Some conservatives have spurned Kennedy in recent years.
If confirmed, Gorsuch will become the first justice ever to serve alongside another justice for whom he once clerked. Trump has reportedly said he wants a pick who will make Kennedy willing to retire. That’s a fool’s errand, because Kennedy is deeply independent in spirit. But it would be hard for Gorsuch to call for, say, overturning Roe v. Wade while sitting with his old boss, who rejected that path in the Casey v. Planned Parenthood case.
Democrats should think hard before trying to depict Gorsuch as a radical conservative. He may not be one — and a bruising confirmation fight could push him in the wrong direction.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
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