On the campaign trail, Donald Trump promised voters that he would fill the vacancy on the Supreme Court with a nominee who could fill the shoes of the late Antonin Scalia, the influential justice loved by conservatives and respected by liberals. According to lawmakers, Trump's selection of federal appeals court Judge Neil M. Gorsuch may be fulfilling that promise.
During his prime-time televised appearance to introduce Gorsuch on Tuesday night, Donald Trump reminded the American public of his promise to find "the very best judge in the country for the Supreme Court," someone who respects the Constitution and the laws of the country "and someone who will interpret them as written."
After Scalia's death, Trump promised that if he won the White House he would choose a justice who would be "in the mold of Justice Scalia." A few months later, Trump did something unprecedented for a presidential candidate, he released a list of 21 SCOTUS candidates, compiled with the help of conservative think tanks, and said he would only choose his Supreme Court nominee from that list. Gorsuch was number three.
The challenge facing Trump was to appoint someone who would appeal to both his conservative base and would get past the Democratic opposition in the Senate, which has already stood up intense opposition to his cabinet picks.
Long-time Trump opponent, Sen. Ted Cruz (R-Tex.) heaped praise on Trump's decision to nominate Judge Gorsuch and fulfill a campaign promise to the American people.
"He is a worthy successor to one of the greatest justices to ever sit on the Supreme Court, Justice Antonin Scalia," Cruz told reporters. "I am thrilled with Judge Gorsuch."
Despite harsh words between Cruz and Trump during the primary campaign, the senator explained that he believes what is most "critical" for the new president is to deliver on the promises he made during the campaign. "One of the reasons I am so pleased with the last two weeks is I think the new president and the new administration have been working hard to deliver on those promises."
Whether Trump was able to find a successor to Scalia, depends on who you ask. After Scalia passed away in February 2016, Senate Judiciary Committee chairman Chuck Grassley (R-Iowa) praised the justice as "an intellectual giant" whose original interpretation of the Constitution "set the standard for the court."
On Wednesday, when asked if Trump had found someone to fill Scalia's shoes, Grassley said, "I don't think anybody can. But [Gorsuch] is a strict constructionist, and that's all that matters."
As to Trump following through on his pledge to only select his nominee from the public list, "He did what he promised," Grassley said.
Earning a reputation as a "strict constructionist," may work in Gorsuch's favor as his nomination will occur in an intensely heated political environment. That label is usually given to more conservative judges who emphasize restraint and fidelity to the literal text and meaning of a statute or the Constitution. On the other hand, liberal judges tend to allow for a looser interpretation. Anyone who had earned a label as an activist judge, seeking to interpret the law based on political preferences, would almost definitely hit a buzz-saw in what is already shaping up to be a contentious confirmation process.
Some senators are already digging in their heels at rumors of a Democratic filibuster (which started trending on Twitter as #FilibusterGorsuch). The possibility of Democrats stonewalling the Gorsuch nomination has led to additional speculation that the Republican leadership could change the rules and lower the 60 vote threshold (the filibuster) to a simple majority of 51 votes. Donald Trump suggested earlier on Wednesday that Senate Majority Leader Mitch McConnell should consider lowering the vote threshold invoking the so-called "nuclear option."
However, throughout the day on Wednesday, numerous Republicans rejected the idea of using the "nuclear option" for a Supreme Court nomination as it would set a dangerous partisan precedent.
When he introduced Gorsuch, Trump highlighted the nominee's impressive academic credentials, receiving scholarships to Harvard Law and Oxford, and serving for ten years as a judge on the tenth district court, spanning six western states. Most of all, he paused to emphasize that when Gorsuch was appointed to that court under President George W. Bush, the Senate gave him unanimous approval. "Does that happen anymore?" Trump asked, "I think it’s going to happen. Maybe it will."
Sen. John Cornyn (R-Tex.) expects the nomination process will be difficult, but saw the unanimous consent vote a decade ago as a positive sign. "We all understand Supreme Court nominations are always controversial, but I think the president has chosen about as perfect a nominee as you could find," he said.
For Jamil Jaffer, professor at George Mason University's Antonin Scalia law school, lawmakers and the public often make a false dichotomy when they think about the Supreme Court nomination as a matter of appointing a liberal or conservative justice. "The truth is, judges shouldn't be conservatives or liberals—they're not politicians," he emphasized. "Their job is not to figure out what the law should be, but what the law is. Our constitution is clear on that."
In recent years, the court has faced criticism for stepping outside its constitutional bounds to resolve problems that should be resolved by the legislature. In rulings on the constitutionality of Obamacare provisions, the legal recognition of same-sex marriage, and other cases, often times conservatives have charged the judges of legislating from the bench.
"Too often we think of judges as politicians in robes and we really have got to get out of that mentality," Jaffer said. Asked if Gorsuch's ten-year record on the tenth circuit suggests he will legislate from the bench, Jaffer stated, "No, just the opposite."
"I think that his view of the law is that it is not right for judges to be politicians in robes," he explained, saying Gorsuch's record suggests that he believes a judge "should decide cases on what the law says and on the merits of the case, not on the policy preferences."
If that is the case, then Trump's choice may fulfill his earlier promise to find a justice who will stick to the letter of the law, so to speak.
For those voters who hoped to see a court shaped by the objective opinions of someone who puts the law above any political preference, even former Obama officials have suggested Gorsuch may fit that description.
After the election, exit polls suggested that nearly half of all voters saw the next president's appointment of a Supreme Court justice as a factor in how they cast their vote, about a fifth of voters said it was a very important consideration. More than half of Trump's supporters considered his ability to appoint the next justice "the most important" factor in how they cast their ballots in November.
As Gorsuch is held up to the light and scrutinized in the course of Senate confirmation hearings, the public will like what they see, Jaffer asserted, whether they voted for Donald Trump or not. "He is not an ideologue. He is not a politician. He is a judge. He tries to get the law right, and at the end of the day, even though we have gotten in this mode of using the courts for political purposes, Americans really want judges to be judges."