On Anniversary of Scalia's Death, Gorsuch Is His True Successor

On this day last year, Justice Antonin Scalia died unexpectedly, devastating the legal world and presenting a vacant Supreme Court seat as an issue in the 2016 presidential election.  When President Trump nominated Judge Neil Gorsuch to Justice Scalia's seat on the Supreme Court, he kept his campaign promise of nominating someone in the mold of Justice Scalia:

If he is confirmed by the Senate, Gorsuch, 49, will represent the first generation of Supreme Court justices to have been influenced by Scalia's rulings, writings and teachings while still in law school. He was chosen by President Trump in part because he is in the mold of Scalia, as lawyers who served as law clerks to both judges attest. 

"Though the critics are loud and the temptations to join them may be many, mark me down ... as a believer that the traditional account of the judicial role Justice Scalia defended will endure," Gorsuch said in a speech last year at Case Western Reserve University School of Law, delivered shortly after the justice's death at 79. . . . 

Having clerked for both, [Matthew] Owens says Gorsuch will "remind everyone of Justice Scalia for a long time to come" because of his determination to call cases as he sees them, regardless of his personal views. 

But despite their similarities, he says of Gorsuch, "I hope that he'll be seen as a successor, and not just a copy." 

Three former Gorsuch and Scalia clerks wrote today of how Judge Gorsuch is the "perfect replacement" for Justice Scalia and shares his overall judicial philosophy:

Although no one can replace the Justice, we can think of no one more worthy of his seat than Judge Gorsuch. He is a brilliant thinker, a fair and independent judge and a clear and effective communicator of important ideas. . . . 

Judge Gorsuch's opinions reflect the principle Justice Scalia spent his career defending: that in a democracy, the people's elected representatives, not judges, get to decide what laws we should have. In a lecture last year, Judge Gorsuch paid tribute to that "great project of Justice Scalia's career," reminding us of "the differences between judges and legislators" and of judges' duty "to apply the law as it is . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." Justice Scalia couldn't have said it better himself. . . . 

It is no surprise, then, that Judge Gorsuch has gained a wide reputation as a principled and deep-thinking judge. On occasion that has even led him to disagree with the late justice. For example, Justice Scalia was a longtime defender of Supreme Court precedents that require courts to defer to federal agencies about the meaning of statutes passed by Congress. Judge Gorsuch, however, recently called for a rethinking of those cases – for a reason Justice Scalia would have found familiar. Judge Gorsuch objected that judicial deference to executive agencies is "more than a little difficult to square with the Constitution of the framers' design" because it effectively allows executive bureaucracies to "swallow huge amounts of core judicial and legislative power," which are supposed to be located in separate branches of government.  

Justice Scalia was a remarkable man, legal thinker, and justice, and he can never truly be replaced.  But in nominating Judge Gorsuch, President Trump has come as close as possible to nominating someone who shares Justice Scalia's understanding of the rule of law, the role of the courts, and the importance of the text in the interpretation of the Constitution and statutes.