WashU Expert: Gorsuch best possible choice under circumstances

Could prove to be 'more persuasive advocate' than late Justice Scalia

Supreme Court

Judge Neil Gorsuch, President Trump’s nominee to fill the vacant seat on the U.S. Supreme Court, has a strong commitment to rule-of-law values and is the best possible choice among the list of potential nominees that Trump circulated before the election, says a Supreme Court expert at Washington University in St. Louis.

Daniel Epps, associate professor of law and a former law clerk to Supreme Court Justice Anthony Kennedy, cautioned, however, that the circumstances that brought about Judge Gorsuch’s nomination were troubling.  “I, like many other Americans, was deeply distressed at how Senate Republicans handled this situation,” Epps said.

“In my view, refusing to even consider President Barack Obama’s highly qualified nominee, Judge Merrick Garland, was an unprecedented act of partisan obstruction,” added Epps, who teaches criminal law and criminal procedure and who co-hosts the First Mondays Supreme Court podcast.

“President Trump missed an opportunity to throw an olive branch to his critics by re-nominating Garland or by picking a true moderate that might appeal to both sides of the aisle,” Epps said.

“Judge Gorsuch, for all my admiration of him, is not that. He will be a reliable conservative. Given the likely options, and given all the water under the bridge, however, I think people of all ideological stripes have reason to feel happy, or at the very least relieved, about this nomination.”

In terms of ideology, Epps expects Gorsuch’s decision-making to fall in line with the late Justice Antonin Scalia, whom Gorsuch would replace.

“He appears to be a fairly committed originalist and textualist, and these methodological commitments, combined with what I assume to be his underlying political ideology, will combine to produce results that, on the whole, will be viewed as fairly or quite conservative,” Epps said.

“That said, I think there is reason to think that Judge Gorsuch would not be a reflexive vote for the government on criminal law and criminal procedure issues, those within my particular field of expertise. In several of his lower court opinions, his methodology has led him to vote in favor of overturning criminal convictions or other defendant-friendly outcomes,” Epps said.

“Much like Justice Scalia, who, in fact, led the way in protecting defendant’s rights in certain areas such as the Confrontation Clause and the Sixth Amendment jury trial right, Judge Gorsuch may be more likely than some of the other possible nominees to protect certain core criminal procedure rights,” Epps said. “And I expect him to be unwilling to read criminal statutes more broadly than the text allows.”

As far as the comparison to Scalia goes, “I expect him to be less bombastic and confrontational — which suggests he might be a more persuasive advocate for originalism and textualism than even Justice Scalia was,” Epps said.

“While I do not expect to agree with Judge Gorsuch in every case, he is a judge I have long admired for his writing ability, for the immense care he puts into his decisions, and for his apparent commitment to the rule of law,” Epps said.

Epps, along with nationally renown experts Lee Epstein and Greg Magarian, will participate in a panel discussion regarding Gorsuch at noon Monday, Feb. 6 in the Bryan Cave Moot Courtroom at Anheuser-Busch Hall.

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