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What Trump’s selection of Neil Gorsuch means for police

If confirmed by the Senate, Justice Antonin Scalia’s seat on the Supreme Court will be given to Neil Gorsuch, a 49-year-old federal appeals court judge on the 10th Circuit


President Donald Trump shakes hands with 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, his choice for Supreme Court associate justice in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017.

AP Photo/Carolyn Kaster

Many of the people who voted for Donald Trump had just one issue on their minds when they cast their ballots: the United States Supreme Court seat made vacant by the death of Justice Antonin Scalia. With the election of the Republican candidate, the balance of the Court would likely remain the same. A victory by the Democratic side would almost surely swing the Court to the left.

During the campaign, Trump promised that — should he be elected to the presidency — the ninth seat would be filled by someone who closely mirrors Scalia’s ideological philosophy. On the final day of January 2017, President Trump publicly announced his nominee for the high court.

Trump’s pick is 49-year-old Judge Neil Gorsuch, who in his career has served at the Department of Justice and clerked for Supreme Court Justices Byron White and Anthony Kennedy. Gorsuch is a professor at the University of Colorado Law School. In 2006, President George W. Bush appointed the Denver native to the 10th Circuit Court, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Perhaps most interestingly, Gorsuch is a former classmate of Barack Obama — both studied at Harvard Law School, each graduating in 1991.

Who is Supreme Court nominee Neil Gorsuch?

During his remarks at the White House announcement ceremony, Gorsuch revealed his tendency as a textualist and originalist in his interpretation of the Constitution, saying that “it is for Congress, and not the courts, to write new laws.”

One remark in particular might be incredibly telling about his likely performance as a Supreme Court Justice.

“It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said.

This statement indicates that Gorsuch’s addition to the court will keep Scalia’s seat solidly conservative.

However, Gorsuch’s track record also indicates that — like Justice David Souter and Chief Justice John Roberts, both of whom have disappointed conservatives in some of their decisions — the nominee has an independent streak which may provide some surprising opinions. Gorsuch even foreshadowed this in his comments at the White House.

“A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands,” Gorsuch said.

Indeed, Gorsuch has shown a willingness to side with both police and defendants in criminal law cases, depending entirely on the merits of the case, not on political ideology.

Decisions indicate a reasonable, level-headed jurist

In the case of United States v. Rodriguez, Gorsuch sided with a law enforcement officer’s felony arrest of a New Mexico man carrying a concealed weapon without a permit. Gorsuch did not write the opinion in the Rodriguez case, but he sided with it, choosing the law enforcement position and the precedent of Terry v. Ohio. That case certainly gives legally-armed citizens and Second Amendment advocates reason for concern, but there’s little doubt that it was a decision that favored the police.

On the other side of the ledger, Gorsuch has been praised by a prominent plaintiff’s attorney from Denver named David Lane who called Gorsuch “fair and open-minded” with regard to cases between police and citizens, according to the Associated Press.

Lane told the AP, “He is a very, very smart man. His leanings are very conservative, but he’s qualified to be on the Supreme Court. I don’t know that Judge Gorsuch has a political agenda and he is sincere and honest and believes what he writes.”

For example, Gorsuch sided with a New Mexico seventh-grade student who was arrested by an SRO. In that case, the boy had been making burping noises in gym class. The teacher called the administration, and the administration called the SRO. The boy was arrested, and the mother sued on the basis of excess force and unlawful arrest.

The 10th Circuit’s Chief Judge Timothy Tymkovich and the opinion’s author, Judge Jerome Holmes held in favor of the school and the police. Gorsuch wrote a four-page dissent disagreeing with colleagues who ruled that that Principal Susan LaBarge, Assistant Principal Ann Holmes and school police officer Arthur Acosta were entitled to qualified immunity.

Gorsuch wrote, “If a seventh-grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer.”

Plain-spoken and straightforward prose like that is reminiscent of Scalia, whose writing has been lauded as being among the most eloquent in the history of the Court. Further, these examples reveal that as a justice, Gorsuch would base his decisions not on loyalty to an ideology, but a devotion to the Constitution.

Gorsuch’s nomination means that if confirmed, law enforcement cases that reach the Supreme Court will be judged on the merits and the facts. This means that cops will have neither an ally nor an opponent on the bench. They will have an objective arbiter, and that is good news indeed.

A pitched political battle is really just beginning

For the better part of a year, the Court has remained in a four-to-four deadlock. Following Scalia’s death, President Obama nominated Judge Merrick Garland for the Court. Senate Republicans stonewalled, saying that the American people should make the decision on the next justice, effectively making the 2016 presidential campaign a referendum on Scalia’s vacant seat.

Ironically, Republicans invoked an unlikely ally in their argument. In 1992 while serving as a fourth-term senator from Delaware, Joe Biden was the chairman of the Senate Judiciary Committee. Biden then called for a block on Supreme Court nominees in an election year.

Based on Gorsuch’s career, Democrats will have a difficult time mounting a case against Gorsuch. He has a record of accomplishment and non-partisan decisions based on his evaluation of cases measured against a strict interpretation of the Constitution.

However, early indications are that the opposition will be intense. House minority leader Nancy Pelosi joined a vocal group of demonstrators on the steps of the Supreme Court decrying the nomination. Senator Chuck Schumer (D-NY) issued a statement — literally seconds after the announcement — indicating that the Democrats in the Senate would entertain the idea of a filibuster to block Gorsuch’s confirmation.

Democrats may want to keep their powder dry. The filibuster could potentially result in some very messy consequences for Democrats, especially if Trump gets the chance to name another justice to the court. The fact is, the naming of Gorsuch to the bench does not change the balance of power — he is as close to a mirror image of Scalia as one might imagine.

With the advancing years of Justice Ruth Bader Ginsburg (83) and Justice Stephen Breyer (78), there is a high probability that Trump will have the opportunity to add at least one more justice to the Court. This almost certainly would change the balance of power and shape SCOTUS rulings for a half century. And with Republican control of the Senate, by the time that fight happens the filibuster may have been removed as an possibility — the so-called nuclear option — thus opening the door for a very different type of appointment.

We shall soon see what we shall see.

Doug Wyllie writes police training content on a wide range of topics and trends affecting the law enforcement community. Doug was a co-founder of the Policing Matters podcast and a longtime co-host of the program.