• Mario Nicolais

Opposing Neil Gorsuch on political grounds makes you part of the problem



If you opposed Neil Gorsuch’s appointment to the Supreme Court because Donald Trump appointed him, then you are a part of the problem.


Between writing this column and its publication, I am nearly certain that Judge Gorsuch has become Justice Gorsuch. Or he will be when sworn in sometime in the near future. Through a filibuster and enactment of the so-called nuclear option, the Supreme Court will have its newest member. Unfortunately, most of the opposition I heard over his appointment comes down to who appointed him. And that is dangerous for our country.


I am hardly a President Trump apologist. I criticized his candidacy in both the Republican primary and the general election. I regularly use my column to question his executive actions. But nominating Gorsuch hasn’t been one of them. To the contrary, I believe Gorsuch may be the best choice Trump has made in his presidency.


By any objective standard, Gorsuch is a brilliant jurist. His resume reads like a wish-list for any aspiring attorney: Columbia undergrad, Harvard Law, study abroad at Oxford, prestigious boutique law firm, appointed to the Court of Appeals by the age of 39. In the interim ten years he issued multiple high-profile opinions. On paper, this is what a Supreme Court justice looks like.


But politics permeated his nomination.


Or rather, politics permeated any nomination Trump might have made. Against the backdrop of President Obama’s thwarted nominee, Merrick Garland, Gorsuch could have been the second coming of Judge Learned Hand and nevertheless faced partisan animosity. Precisely because Republicans denied Garland a seat on the Court, Democrats wished to do the same to Gorsuch.

How unfortunate. And what could have been.


There is already a dearth of conversation about judicial philosophies and interpretive styles. Gorsuch’s “originalist” approach to statutory interpretation — and even what that means — hardly registers a whisper in the cacophony over his nomination. Instead it has been replaced with politicized talking points and slogans: he is anti-labor or anti-woman; he is pro-life or pro-religion; he is a friend of corporations or an enemy of civil rights. Each of these over-broad simplifications is stolen directly from the campaign trails of legislators and presidents. And with every use it further divorces the country’s collective perception from the procedural reality of interpreting laws. It entirely fails, for example, to recognize that “conservative” Chief Justice John Roberts rescued President Obama’s signature health care legislation due primarily to Roberts’ views on the separation of powers.


As people allow their disdain for Trump to spill over unfiltered into calls to oppose Gorsuch, they feed the same fire that led to Trump’s election in the first place. They create an environment of anger, frustration, and hatred against “the other side.” Such a circumstance threatens the very underpinnings of the independent judicial system. It aggrandizes the idea that judges cannot be impartial or review a matter with a blind eye to the respective parties. And because a judge beholden to one side can never administer justice, it cripples confidence in the system as a whole. That’s why the late Justice Antonin Scalia — whose robe Gorsuch will fill — to proclaim “the judge who always likes the results he reaches is a bad judge.”


Over the next 30-40 years Neil Gorsuch will vote and opine on the biggest legal questions presented in our country. His decisions will likely influence the law for decades more. Let’s hope his opinions are more thorough and discerning than many of those who currently oppose him.



Mario Nicolais is a constitutional scholar and advocate, managing partner of KBN Law firm, and general counsel for Vivage Senior Living healthcare organization. Follow him on Twitter @MarioNicolaiEsq


Read this column in The Denver Post.

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