President Donald Trump has chosen Neil Gorsuch as his nominee for the vacant seat on the Supreme Court, a choice that will please Republican social conservatives and reassure many on the right who thought that Trump might “go rogue” on a SCOTUS choice.

Gorsuch is an appeals judge on the 10th circuit court, which takes appeals on decisions made in courts in the south/mid-west, from Kansas to Wyoming and New Mexico, via Colorado.

Before that, Gorsuch was a corporate lawyer in DC, having grown up there, his mother appointed by Ronald Reagan to head, and tame, the Environmental Protection Agency. Gorsuch attended Georgetown Prep, Columbia, Harvard and Oxford, so y’know, rebel. He’s known to be a constructionist and an intentionalist on matters constitutional – i.e. he believes the constitution should be interpreted with regard to what the meaning of the words were for their authors at the time, and with some regard to trying to establish, via other writings, laws of the time, what their conscious intent might have been.

Conservatives outside the beltway are more attracted by the content of some of Gorsuch’s decisions than his abstract legal philosophy. He was a judge in the notorious “Hobby Lobby” case where a chain of furniture stores run by Christians argued that it would be against their religious beliefs to provide health insurance that included contraception coverage. Seriously. Gorsuch stood with them on that one. He’s against the extension of substantial executive powers to federal agencies – e.g. the EPA, say – wanting them to restrict themselves to the laws offered. He’s argued that gun ownership violations are too loosely criminalised. His sole abortion-related case on the 10th circuit was a knotty one, in which he sided with state restrictions on Planned Parenthood – but it’s reasonable to assume that his intentionalism would make him relatively sceptical of Roe v Wade.

[US Democrats in the fight of their lives with SCOTUS nomination]

The Democratic leadership has vowed to filibuster his confirmation, arguing that the seat was stolen from Barack Obama, and Merrick Garland, his nominee. The filibuster has been left in place – despite being removed elsewhere by the Democrats – for SCOTUS nominees. The Republicans will try and get him confirmed without breaking the filibuster – appealing to the remnant Democrat senators in Republican states, like Joe Manchin in West Virginia, and Heidi Heitkamp in North Dakota.

But if the Republicans can’t get him through, they’ll be sorely tempted to remove the filibuster – the so-called “nuclear option” that effectively destroys it, and throws away a lot of Senate power vis-a-vis the House and the White House. Might be worth it. Gorsuch is 49 years old; he could be on the SCOTUS bench until the 2050s. If another vacancy comes up, especially a liberal one, this President and this crowd will most likely ignore convention and choose another conservative. And that, at least within the existing frames of power, is, for liberals, the ball game.

The founders in their wisdom decided they wanted no kings in America; technically, the SCOTUS judges can be impeached and removed – but that is the least used of the constitution’s provisions. The kings sit on the bench and shape the character of the country, decade in, decade out, as presidents come and go.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey