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EDITORIAL: Trump could not have made a better Supreme Court appointment than Colorado's Neil Gorsuch

By: The Gazette editorial board
January 31, 2017 Updated: February 1, 2017 at 7:02 am

Congratulations to President Donald Trump for nominating Boulder resident and 10th Circuit Court of Appeals Judge Neil Gorsuch to fill the void left by deceased Supreme Court Justice Antonin Scalia.

Opportunities don't get better than this.

The Denver native's resume alone ranks Gorsuch among the cream of the top 1 percent of lawyers in the United States. He graduated with honors from Columbia University and Harvard Law School. He furthered his studies at Oxford University, earning a doctorate in legal philosophy.

Gorsuch is the son of Anne Gorsuch Burford, the first woman administrator of the EPA. He clerked for Supreme Court Justice Anthony Kennedy and former Supreme Court Justice Byron "Whizzer" White, a Fort Collins native and alumnus of the University of Colorado at Boulder who wrote a dissent in Roe v. Wade.

When Trump met with The Gazette's editorial board in July, we grilled the aspiring president about his promise to nominate only originalist judges vetted and recommended by the Federalist Society, an organization of legal scholars that opposes judicial activism and constitutional revision. We asked Trump to promise, pledge and make no exceptions. He gave us his word, saying replacement of Scalia could be his most important decision.

We want an originalist, Scalia-like judge because disciplined interpretation of the Constitution has kept this country prosperous and free for 241 years. We cannot afford more modernist "living document" interpretations of principles that should not change to fit political tides or the whims of cultural fashion.

At 49, Gorsuch is the youngest among candidates remaining on Trump's short list. He could serve for three decades or more.

Adam Feldman, a fellow in empirical study of public law at Columbia Law School, ranked Gorsuch as a "heavy originalist," after studying a long list of federal judges and analyzing them on a basis of "decisions that demonstrated repeated analyses premised on original understandings of the Constitution."

Throughout his campaign, Trump promised a Supreme Court appointee "like Scalia." That led a distinguished group of law professors to research federal judges and determine which were the most like Scalia. They developed the Scalia Index Score, which ranks judges based on: How often the judge promotes or practices originalism; how often the judge cites Scalia's nonjudicial writings containing interpretation of law; and how often the judge writes separately when dissenting from the majority opinion. Gorsuch has the highest Scalia Index Score among remaining contenders.

All research paints Gorsuch as a judge who consistently advocates judicial restraint, challenges judicial deference to federal agencies, and questions over-regulation and excessive criminalization.

He is widely credited, and awarded, as a gifted legal writer. A sample:

"If sometimes the cynic in all of us fails to see our Nation's successes when it comes to the rule of law maybe it's because we are like David Foster Wallace's fish that's oblivious to the life-giving water in which it swims. Maybe we overlook our Nation's success in living under the rule of law only because, for all our faults, that success is so obvious it's sometimes hard to see," Gorsuch wrote for the Harvard Journal of Law & Public Policy.

Most importantly, Gorsuch understands the First Amendment. He wrote the 10th Circuit's decision in Hobby Lobby Stores Inc. v. Sebelius. Upheld by the Supreme Court of the United States, the ruling prevents government from forcing "those with sincerely held religious beliefs" to buy contraceptives or participate in that which their religions teach are "gravely wrong."

Gorsuch wrote the decision in Little Sister of the Poor v. Burwell, which led to the Supreme Court protecting nuns and others from elements of Obamacare they consider in violation of beliefs.

Without fail, Gorsuch has eloquently protected First Amendment religious protections from perverse interpretations of the First Amendment's establishment clause.

Trump could not have made a better Supreme Court appointment than Gorsuch. He is a defender of liberty and justice and stands the best chance of filling the prodigious void created by Scalia's death.

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