Meet Your Next Supreme Court Nominee (Maybe)…

January 25, 2017

Big news is breaking this morning…

The choice to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia is down to two names -- Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania, according to two sources close to the selection process.

Gorsuch has a slight edge -- CBS News' Jan Crawford reported that Gorsuch was the front-runner over the weekend.

President Trump tweeted this morning that he will name his nominee on Thursday of next week, February 2. Hmm. Groundhog Day. Maybe Trump will nominate Supreme Court justices over and over and over again…

At ScotusBlog, Eric Citron writes up the biographical sketch of Gorsuch:

Neil Gorsuch was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, and confirmed shortly thereafter. Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department before his judicial appointment. He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.

With perhaps one notable area of disagreement, Judge Gorsuch's prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch's legal writing is in a class with Scalia's is deserved: Gorsuch's opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie.

That difference, in case you're wondering:

In short, Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government. Indeed, this is an area in which Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at.

Andy Schlafly, son of the late Phyllis Schlafly, has been critical of Gorsuch for a little while now; our Ed Whelan looks at the criticisms and finds them baseless:

In the panel ruling in Games-Perez, Gorsuch did indeed regard himself as bound to abide by controlling circuit precedent, just as nearly every circuit judge not named Stephen Reinhardt also does. But Gorsuch didn't stop there. In a 20-page opinion, he urged the en banc Tenth Circuit to reconsider and overrule the wrong precedent. In short, Schlafly's claim that Gorsuch "clings to bad precedent, and is an extreme supporter of stare decisis" is flatly contradicted by the very case that Schlafly invokes.

Nor, I'll add, did the defendant in that case assert, or did Gorsuch rule against, any Second Amendment rights. Rather, it was Gorsuch who, in support of his criticism of circuit precedent, observed that "the Supreme Court has held the Second Amendment protects an individual's right to own firearms and may not be infringed lightly."

But before you fall in love, take a look at Thomas Hardiman, reportedly the other finalist.

The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)

During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative. For example, the gun rights cases in which Hardiman has participated reflect an originalist approach to the Second Amendment right to bear arms. Although he rejected a Second Amendment challenge to the general constitutionality of the federal law barring felons from possessing firearms, last year he concurred in a pair of challenges to the law by two men who had been convicted of corruption of a minor and carrying a handgun without a license, respectively. Hardiman agreed with the would-be gun owners that, at least as applied to them, the federal law violates the Constitution. He explained that "the threshold question in a Second Amendment challenge is one of scope: whether the Second Amendment protects the person, the weapon, or the activity in the first place. This," he continued, "requires an inquiry into 'text and history.'" Based on that inquiry, he concluded that "the most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment" – a category into which the individuals in this case, in his view, did not fall. Relying on this principle, Hardiman also joined an unpublished and unsigned opinion rejecting a Second Amendment challenge to the federal and state bars on gun ownership by an inmate released from prison after serving time for armed robbery.

Hardiman is 51, Gorsuch is 49. (Those are ages, not percentages.)

Fact-Checking Donald Trump, Poorly

One of the lead items on the local Washington D.C. television news last night was District of Columbia officials raising heck over the White House web site featuring outdated statistics for the local homicide rate.

Here's PolitiFact, declaring Donald Trump and the White House web site "mostly false" for declaring, "In our nation's capital, killings have risen by 50 percent."

In 2014, there were 105 homicides in D.C. The following year -- 2015 -- there were 162. That's an increase of 54 percent -- and that's in line with what the White House website said.

But the story doesn't end there. There is already city-level data for homicides in 2016, and the release of that data painted a different picture.

The figure for 2016 was 135 homicides. That's down 17 percent from the previous year -- not up roughly 50 percent.

Yeah… but 2016's total is still 30 homicides higher than 2014. D.C. had a slight decline after a spike the previous year. So far, it doesn't look like the 2015 spike was a one-year blip. From 2011 to 2014, the number of homicides ranged from 88 to 108. As the Brennan Center for Justice put it at the end of last year, the murder rate in D.C. "remains relatively high compared to recent history."

So yes, Trump and the White House would have been wiser and more accurate to say, "In our nation's capital, killings are on the rise." But we can arrange the statistics another way, and measure biennially instead of annually: 2013 and 2014, 209 people were killed in the District. In the next two years, 297 people were killed. Any way you slice it, I think everyone would agree the number of homicides in the District is too damn high.

Keep in mind the context of the White House statement:

In the section titled, "Standing Up For Our Law Enforcement Community," it says in part, "The Trump Administration is committed to reducing violent crime. In 2015, homicides increased by 17 percent in America's 50 largest cities. That's the largest increase in 25 years. In our nation's capital, killings have risen by 50 percent. There were thousands of shootings in Chicago last year alone."

The gist is pretty clear: Violent crime is too high, and the Trump administration is determined to bring it down.

Like the homicide rate, the overall violent crime rate in the District of Columbia declined slightly in 2016, but probably not enough to reassure residents. Cases of sex abuse remained the same, assault with a deadly weapon was down six percent, and total violent crime was down ten percent. But the long-term statistics aren't quite so pretty. In 2011, 95 percent of the city's homicides were "cleared" or solved. By 2015, that was down to 61 percent.

If I were local officials, I'd be more worried about the homicide clearance rate than outdated statistics on the White House web site.

ADDENDA: Over on the home page, a look at Michael Wear's memoir of his time in the administration, Reclaiming Hope, is a spectacularly readable portrait of a unique niche in Obama-world to which many progressives grew hostile over time, representing as it did faith in general and Christianity in particular.