Supreme Court

Analysis: Scalia tribute may have boosted Gorsuch in search for court pick

SOTUS nominee meets with lawmakers as Democrats dig their heels in

 

Judge Neil Gorsuch, in a low-key speech last spring, paid tribute to the man he eventually would be tabbed to replace – going well beyond platitudes to an inspired, articulate defense of his own judicial mantra.  

Those remarks on the late Justice Antonin Scalia, in the midst of a heated presidential primary, caught the attention of a small group of conservative legal activists.

Sources close to the selection process tell Fox News it was that lucid, literate display of conservative legal thought that gave advisers to then-candidate Donald Trump a growing confidence the Colorado native could be the right person to fill the vacancy.

Now Gorsuch's journey has taken him to edge of the nation's highest court. Already, his nomination has been caught up in the partisan Senate warfare that dates back to majority Republicans’ blockade of then-President Barack Obama’s nominee last year. But he is seemingly well-prepared, personally and intellectually, to navigate the tricky Senate confirmation process.

"He is a very worthy successor to Justice Scalia," said Thomas Dupree, a former Bush deputy assistant attorney general. "Judge Gorsuch is a textualist, he cares about what our founders envisioned, he cares about the text of the Constitution. So I think when the senators meet him, and learn what he's all about, he will be confirmed."

As every member of the Supreme Court may note, timing is everything -- being in the right place at the right moment when lightning strikes and the president chooses you above other qualified candidates.

Gorsuch was in the mix from the beginning, being on a list of 21 names the Trump campaigned released last year -- an unprecedented peek at the kind of judge he would ultimately choose. All were proven conservatives, all but one a federal or state judge.

While long admired by legal conservatives, the nominee, however, was not on the initial list that contained what many court watchers were told were the favorites. That included federal appeals court judges William Pryor and Diane Sykes, whom Trump had specially mentioned on the campaign trail.

But Gorsuch slowly, subtly moved up the judicial food chain, widening his circle of support within the Trump team. The president, in introducing his nominee Tuesday, kept it short and simple.

"Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support," he said. "As good as it gets."

Sources say Gorsuch's star began rising after the election, when the focus on the Supreme Court became more acute. With low-key help from his legal advisers, and the input of Vice President Pence and White House Chief of Staff Reince Priebus, the 49-year-old judge on the 10 Circuit U.S. Court of Appeals began to get more intense vetting.

His Scalia tribute in April was a key selling point, an unintended way to make him stand out from other equally qualified judges, showing the accessible writing style that was cited as a key asset.

"If you wanted to know what kind of justice he would be, those remarks gave you a handy idea of who he was, saying more perhaps than a bunch of opinions could," said one source, just after Gorsuch was nominated.

The topic ostensibly was a summary of Scalia's remarkable life and times. Gorsuch, speaking at Case Western Reserve University School of Law in Cleveland, recalled the moment when he heard the justice had suddenly died in February.

"I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news," he said. "I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn't see the rest of the way down the mountain for the tears."

But instead of piling on the superlatives, Gorsuch made a subtle turn to defend the larger impact legal conservative thought has had in the past three decades or so, when Scalia's 1986 ascension to the high court (and the elevation of William Rehnquist to chief justice) marked the beginning of a clear conservative majority on the court that promises to continue if Gorsuch is confirmed.

And more importantly, Gorsuch offered a reasoned portrait of the role of judges that was uniquely his own. He cleverly cited the conflicting legal reasoning liberal Justices Sonia Sotomayor and Elena Kagan reached in a contentious sexual abuse case the court decided just days before Gorsuch's speech.

"At the end of the day, we may not be able to claim confidence that there's a certain and single right answer to every case, but there's no reason why we cannot make our best judgment depending on (and only on) conventional legal materials, relying on a sort of closed record if you will, without peeking to outside evidence," he said. "No reason, too, why we cannot conclude for ourselves that one side has the better of it, even if by a nose, and even while admitting that a disagreeing colleague could see it the other way."

Conservative in theory, but far removed in tone from Scalia's reputation as an uncompromising jurist with a sharp pen and wicked wit to match.

Intentional or not, Gorsuch's speech served as an audition of sorts, a sign this judge had the intellectual heft and quiet confidence to dissect the very court to which he would aspire.

In the days before the January inauguration, Gorsuch was among a whittled list of a half-dozen possibles, and was then among four the incoming president personally interviewed.

It came down to him and Judge Thomas Hardiman, of the Philadelphia-based 3rd Circuit. Sources say it was a close decision, with both men offering a range of favorables, with few noted downsides.

Gorsuch received the nod in a phone call from President Trump himself on Monday night and 24 hours later was addressing the nation.

Now that his professional dream is tantalizingly close, it will be his personal skills and expansive judicial record that will prove his measure. His mantra may be the words he gave in his speech nine months ago: "Hear courteously, answer wisely, consider soberly, and decide impartially.”