White House grooms Gorsuch to be Scalia’s heir

WASHINGTON—Leonard Leo is best known as vice president of the Federalist Society, but he is currently on leave to serve as a Supreme Court adviser for the Trump administration. I spoke with Leo this week about Judge Neil Gorsuch, President Donald Trump’s nominee to replace the late Justice Antonin Scalia, and the confirmation hearings set to begin next week.

President Trump said he wanted someone like Scalia to take his spot on the bench, and there’s a picture circulating of Gorsuch and Scalia fishing in Colorado. Has that been helpful? That picture says a thousand words. That was a trip that I know Justice Scalia really enjoyed. He very much liked Judge Gorsuch’s company. Judge Gorsuch thought the world of Justice Scalia, as you can see from many of the things that the judge said after the justice’s passing. That picture says a lot about Justice Scalia and his love of fishing and it says a lot about Judge Gorsuch’s admiration for the late justice.

How might Gorsuch be different from Scalia? Judge Gorsuch is a man of the West, Justice Scalia was more of a Northeasterner. That might seem like a cosmetic difference, but it’s not necessarily. The history of the West is different. It reflects different concerns and sentiments about the role the government plays in managing the affairs of the West—land, the environment, and so forth. Another difference is that Judge Gorsuch was very much a litigator. Justice Scalia was a very good private practitioner, but not a litigator in the same sense.

Politically, it’s been a pretty quiet six weeks since President Trump made the appointment. Is that a good sign for Gorsuch? Hard to say whether we’re going to have a big fight or not. Democrats probably won’t be able to make that determination until shortly after the hearings. On one hand, you’ve got a nominee who by all accounts is enormously talented, well-credentialed, respected by people across the political and ideological spectrum. On the other hand, the left flank of the Democratic base is very, very angry right now. They want Democrat leadership to push back hard on the Gorsuch nomination. What [Senate Minority Leader Chuck] Schumer, D-N.Y., and his colleagues need to decide is whether they’re going to capitulate to the left flank of their base and make this an intense fight resulting in a filibuster or whether they’re going to allow moderate Democrats a pass to vote for Gorsuch—or at least to vote against a filibuster.

Do you envision a scenario in which the Senate changes the filibuster rules for Supreme Court nominations? I think there is a very high degree of likelihood that Democrats will, in fact, filibuster Judge Gorsuch. If there are fewer than eight Democrats that are willing to vote for cloture, then at that point [Majority Leader Mitch] McConnell, R-Ky., would have to make the decision whether he wishes to invoke the long-standing Senate practice of having a majority vote for Supreme Court nominee. I know people call that the nuclear option. I personally don’t think that’s an accurate picture. Basically what McConnell and Republicans would be doing is saying that we’ve had a long-standing practice—almost 200 years —of having simple majority votes for Supreme Court nominees, and that that’s what ought to be required here.

How do you respond to Democratic accusations that this is a stolen seat? Get over it. Even before the Republican caucus knew that Judge [Merrick] Garland would be the nominee, Leader McConnell made it very clear that when you have a vacant seat so close to an election, it is best to let the people decide what they want through the ballot box in November. Nobody knew whom the president of the United States would be after President Obama served out his term. In fact, at the time, the smart money was on Hillary Clinton.

What tactics do you expect from Democrats during the hearings? You’ll see Democrats engage in every effort to get Judge Gorsuch to commit on cases they view as sacred cows for the left. They will try to get him to commit to uphold Roe v. Wade and any number of doctrines they view as important. And, of course, Judge Gorsuch won’t be able to make those commitments. Democrats won’t be happy with that. Judge Gorsuch has well over 2,000 opinions, and he has a rich body of writing, as well. The only thing you see consistently throughout his work is a commitment to interpreting the text of the Constitution and statutes as they’re written and a commitment to what I call the “structural Constitution”—the idea that it is incumbent upon judges to enforce the structural protections of our Constitution in order to preserve freedom and human dignity. Those structural protections include federalism and separation of powers and checks and balances and limits on the powers of Congress under Article 1, Section 8. There’s no clear pattern when you look at the results of cases. But, of course, Democrats will cherry-pick the cases and try to caricature Judge Gorsuch based on two or three or six cases that they find objectionable.

Who is on the team that’s helping him prepare for these hearings? The White House counsel’s office and the Justice Department’s Office of Legal Policy have been participating in the process to help prepare Judge Gorsuch. But the best aspect of this preparatory phase has been Judge Gorsuch closing himself up in a room, reviewing his record and his opinions, refreshing his recollection about the many different doctrines of constitutional law and role of courts that he’s going to need to be able to talk about during the hearings.

When do you expect the full Senate to vote on Gorsuch? McConnell has made it very clear that the Senate will vote one way or another by April 7. The Senate will be going into recess on April 10 for two weeks and everybody very much wants to have a court at full capacity for the last sitting of the term, which begins on April 17. So, one should expect that the committee hearings will run their course the week of March 20 and that Judge Gorsuch’s name will reach the Senate floor probably around April 3 or 4.

Listen to J.C. Derrick’s conversation with Leonard Leo on the March 16 edition of The World and Everything in It.