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Volokh Conspiracy

What Obama's acting solicitor general thinks about the Gorsuch pick


Judge Neil Gorsuch speaks, alongside President Trump, at the White House in Washington on Tuesday. (Brendan Smialowski/Agence France-Presse viaGetty Images)

Shortly after President Trump announced his selection of Judge Neil Gorsuch to replace Justice Antonin Scalia on the Supreme Court, former acting solicitor general Neal Katyal wrote to praise the pick in the New York Times.

Here's a taste of his op-ed, "Why Liberals Should Support Neil Gorsuch."

I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court. . . .

There is a very difficult question about whether there should be a vote on President Trump's nominee at all, given the Republican Senate's history-breaking record of obstruction on Judge Merrick B. Garland - perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.

I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation's highest court. . . .

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence - a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch's record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch's interpretations of federal statutes, including our immigration laws.

And here's a neat coincidence. As I've noted in prior posts, Gorsuch delivered the Sumner Canary lecture at Case Western Reserve School of Law in April 2016. This past fall, the same lecture was delivered by Neal Katyal.