Is Neil Gorsuch 'Conservative' in a Good Way?
Let's hope he conserves the Constitution.
Last night my inbox was filled with extravagant praise and harsh denunciations of Neil Gorsuch, President Trump's choice to replace the late Supreme Court Justice Antonin Scalia. With few exceptions, the judgments broke predictably along partisan and ideological lines. Conservatives think Gorsuch is "a brilliant choice," "an unyielding defender of the Constitution," "a distinguished, exceptionally qualified, and widely respected jurist" who "understands what it means to protect the constitutional freedoms afforded to all Americans." Progressives say he is "a disaster for women," "an extremist judge intent on overturning basic, well-established Supreme Court precedents," an "unacceptable nominee" who will "rubber stamp Trump's assaults on Americans' freedoms," an "ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people." Libertarians may have a harder time figuring out whether Gorsuch is a good pick for the Supreme Court.
Yesterday Damon Root noted a couple of reasons to be hopeful: Gorsuch is skeptical of bureaucratic power in the application of ambiguous statutes, and he seems inclined to resist erosion of the constitutional ban on unreasonable searches and seizures. The first position is conventionally described as "conservative" (it shows Gorsuch is anti-regulation, according to his progressive detractors), while the latter is viewed as "liberal." But if your main concern is protecting individual rights by enforcing constitutional limits on government power, there is nothing inconsistent about defending the separation of powers in the one case and the Fourth Amendment in the other.
From the perspective of someone who likes conservatives when they conserve the Constitution, this chart, which appears in today's New York Times, is remarkably uninformative. It places Gorsuch on a left-to-right continuum, indicating that he is "more conservative" than Scalia but "less conservative" than Justice Clarence Thomas. Thomas, like Scalia, has been a mixed bag in libertarian terms, but he has steadfastly defended important constitutional principles such as federalism, the doctrine of enumerated powers, freedom of speech, and the right of armed self-defense. So is Gorsuch "more conservative" than Scalia in a good way or a bad way?
The New York Times graph is based on Gorsuch's "Judicial Common Space" score. Under that approach, "If a [federal] judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator." That means Colorado Sen. Cory Gardner's ideology is imputed to Gorsuch—a puzzling result in light of the fact that President Trump is a Republican of recent vintage and uncertain ideology who probably did not solicit Supreme Court advice from Gardner, who in October, after the release of the 2005 video in which Trump bragged about kissing women and grabbing their crotches without their consent, recommended that Trump step aside and let Mike Pence run for president instead. Nor did Gardner, who was elected to the House in 2010 and the Senate in 2014, play a role in Gorsuch's 2006 nomination to the U.S. Court of Appeals for the 10th Circuit.
Even if we accept the logic of this method (which is generally supposed to be a good way of predicting how a nominee will vote on the Supreme Court), there seems to be some dispute about Gardner's ideology. The rating reflected in the New York Times chart is based on the DW-NOMINATE model, which uses roll call votes to place legislators on an ideological map. Gardner's DW-NOMINATE Ideology Score is 0.455, which makes him "more conservative" than 72 percent of the current Congress. Govtrack, which rates ideology based on bill cosponsorship, gives Gardner 0.83 on its scale of conservatism, making him the 31st most conservative member of the Senate. But Conservative Review gives Gardner a dismal "Liberty Score" of 41 percent, based on 10 "liberal votes" and seven "conservative votes," while On the Issues classifies him as a "libertarian-leaning conservative."
Putting that dispute aside, what is Gardner's ideology supposed to tell us about how Gorsuch would vote as a Supreme Court justice? In the article cited by the Times, Washington University political scientist Lee Epstein and her co-authors divided Trump's possible Supreme Court nominees into three categories: "moderately conservative," "conservative," and "extremely conservative." Epstein et al. put Gorsuch in the middle group, indicating that he would vote "to limit gay rights, uphold restrictions on abortion, and invalidate affirmative action programs." And what about all the other issues that might come before the Court? "If we use [Justice Samuel] Alito as our guide," the authors say, "we would expect these 16 candidates [including Gorsuch] to reach conservative decisions in 64% of all cases and in 73% of non-unanimous decisions."
Unless you automatically equate "conservative" with either "good" or "bad," that is not very helpful. It does not tell us, for example, how Gorsuch is apt to vote in cases involving free speech, due process, property rights, search and seizure, federalism, or executive power. A better guide might be Gorsuch's judicial philosophy, which is after all supposed to be what judges consult in applying the law. New York Times legal reporter Adam Liptak says Gorsuch "shares Justice Scalia's legal philosophy," meaning he is "an originalist" who "tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it." That approach, Liptak adds, "leads him to generally but not uniformly conservative results."
Scalia was by no means a consistent originalist, but his inclination toward that approach produced "liberal" results more frequently than you would expect based on the progressive caricature of him as an authoritarian ogre. In fact, he was often more inclined to oppose the government's position than some of his reputedly more liberal colleagues. If Gorsuch's judicial philosophy is in fact similar to Scalia's, libertarians could do a lot worse.