Politico Magazine asked me to provide a quick take on Judge Gorsuch’s nomination to replace Justice Scalia. My remarks aim to rebut a common misconception: that Justice Gorsuch is a 1-to-1 replacement of Justice Scalia. Not so. While Scalia was fairly abrasive, and alienated Justice Kennedy, Justice Gorsuch may have–in the words of Larry Tribe–“purchase on Tony Kennedy’s mind.”
The Kennedy whisperer
Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston.
In 2009, Harvard Law Professor Larry Tribe urged President Obama to nominate then-Solicitor General Elena Kagan to replace Justice Souter. At the time, Tribe carped that Justices Ginsburg and Breyer have not had “much of a purchase on Tony Kennedy’s mind.” Kagan, unlike the eventual nominee Sonia Sotomayor, Tribe explained, would be able to prevent Kennedy, the longtime swing voter, “from drifting in a direction that is both formalistic and right-leaning of matters of equal protection and personal liberty.” President Obama did not listen to Tribe the first time, but he did select Kagan to the High Court a year later in 2010. Kagan’s addition largely proved Tribe’s prediction correct; since her appointment, the swing justice has “consistently moved in the liberal direction,” in the words of one legal scholar.
President Trump’s decision to nominate Judge Neil Gorsuch was inspired. As a committed originalist, sound jurist and brilliant writer, Gorsuch will serve as a worthy intellectual heir to Justice Scalia. But more importantly, he has a cachet that, alas, the brash New Yorker lacked. As a former law clerk to Justice Kennedy, Gorsuch has the unique opportunity to try to persuade his former boss, and maybe—just maybe—nudge him to the right. While Justice Scalia regrettably alienated the moderate members of the court, the collegial Coloradan has the opportunity to cast textualism and originalism in a softer, friendlier light. We are a long way from restoring the lost Constitution. However, appointing Neil Gorsuch—whose purchase on Tony Kennedy was forged two decades ago—brings us one, and maybe two, votes closer.
The piece also quotes twelve other legal scholars including Eugene Volokh, Erwin Chemerinsky, Ilya Somin, and many others.