O

n the evening of January 31, 2017, the steps of the Supreme Court resembled a frantic game of Mad Libs. Clusters of protestors had gathered in front of the high court to await President Trump’s nomination of a successor to the vacancy left by the passing of Justice Antonin Scalia almost one year earlier. Bundled against the cold, they held fill-in-the-blank signs that spoke more eloquently to the politicization of the nomination process than any stem-winder ever could:

“OPPOSE ________,”

“#STOP ________,”

“________: EXTREME AND DANGEROUS.”

Insert NAME. Any NAME—it didn’t matter as long as Donald Trump had spoken it.

But that night, a president who had won office in part by promising Americans the best of everything, from the “best wall” on the border with Mexico to the “best deals” with our trading partners, delivered on one of his campaign promises. “When Justice Scalia passed away suddenly last February,” President Trump announced, “I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court.” The hyperbole is excusable: Neil Gorsuch is certainly one of the best jurists.

His educational background is impeccable: a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford, where he was a British Marshall Scholar. His professional background is unimpeachable: clerkships on the D.C. Circuit and the United States Supreme Court, years in private practice, and a stint at the Department of Justice as deputy associate attorney general. And for the last 10 years, Gorsuch has served on the Tenth Circuit Court of Appeals, where he has earned a reputation for uncompromising textualism, rigorous originalism, and lucid, engaging judicial opinions.

None of this mattered to the Sharpie-wielding protestors on the steps of the Supreme Court, who finally had the proper noun they needed to finish their posters. Nor does it seem to matter to the Democratic leadership in the Senate. The fact is that, whoever the nominee and whatever his credentials, the battle lines in the struggle over Scalia’s successor had been drawn long before the nation ever heard the name Neil Gorsuch. They had been drawn almost a year ago, when Senate Republicans refused to give Judge Merrick Garland, President Obama’s nominee to the vacancy, a hearing.

Article II of the Constitution vests in the president the sole power to nominate justices of the Supreme Court, but it vests in the Senate the power to confirm those nominees. When President Obama put Garland’s name forward in a tumultuous election year, Senate Republicans argued that the nomination was more properly left to the next president, whoever that might be. It was a gamble: Denying Judge Garland a hearing might have meant trading a moderate Obama nominee for an activist Clinton nominee. Candidate Trump upped the ante by releasing a list of 21 names from which he pledged to select a Supreme Court nominee.

Indeed, until the late hours of November 8, it seemed that the Republican Senate had overplayed its hand. But when Trump swept the Rust Belt table, Democrats branded the gambit nothing short of grand larceny, the “theft” of a Supreme Court seat that rightly belonged to President Obama’s nominee. To be sure, the Constitution does not require the Senate to give a hearing to every Supreme Court nominee, but why let reality stand in the way of rhetoric? Enter Judge Gorsuch, who is supremely qualified for the job, but whom Senate Democrats are effectively accusing of fencing stolen goods.

That opponents of the Gorsuch nomination have adopted #rememberMerrickGarland as their battle cry has less to do with the comparative merits of the nominees than it does with the procedural corner into which Senate Democrats have painted themselves. In 2013, under the leadership of Harry Reid, Senate Democrats changed the procedure for ending the filibuster of presidential nominees for executive and judicial positions from a super-majority of 60 votes to a simple majority of 51. At the time, some Democrats, including now–Senate Minority Leader Chuck Schumer, resisted the rule change on the ground that it would annihilate any remaining incentives for bipartisan compromise on nominees. They were right: The “nuclear option,” as the rule change was called, has all but pitted the parties against each other in a zero-sum competition over presidential nominations.

Supreme Court nominees were exempted from the 2013 rule so, for the time being, Gorsuch will still need a 60-vote majority to agree to end debate on his nomination (the filibuster prevents the cloture of such debate). At that point, assuming the point is reached, he can be confirmed by what is likely to be a simple majority somewhere in the 50s. Now Senator Schumer is leading the charge in the Senate to resist confirming Gorsuch, citing the “unprecedented strain on the Constitution” unleashed by the Trump administration. In an op-ed in Politico, Schumer explained his party’s position: “[The President’s] actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.” For his part, Trump has urged Senate Republicans to push the button and extend the nuclear option to high-court nominees.

Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers. Gorsuch’s understanding of this doctrine is not, as Senate Democrats are deploying the phrase, tantamount to wholesale judicial opposition to the Trump agenda. Rather, to Judge Gorsuch, the separation of powers is the very bedrock of political and individual liberty in the United States, the very genius of the American Constitution.

Last year, shortly after the death of Justice Scalia, Gorsuch delivered a speech at Case Western Reserve University in which he reflected on the doctrine. He remarked that “the great project of Justice Scalia’s career” had been

to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

To Gorsuch, as to any serious originalist, the Constitution vests in legislators the power to craft laws that serve a particular vision of the good by drawing upon their moral commitments and political sensibilities. By contrast, the judicial power does not include the power to legislate from the bench; it entails a methodical fidelity to the sources of law. As Gorsuch explained, the power to judge is

not a forward-looking but a backward-looking authority. Not a way for making new rules of general applicability but a means for resolving disputes about what existing law is and how it applies to discrete cases and controversies . . . . One that calls for neutral arbiters, not elected representatives. One that employs not utility calculi but analogies to past precedents to resolve current disputes. And a power constrained by its dependence on the adversarial system to identify the issues and arguments for decision—a feature of the judicial power that generally means the scope of any rule of decision will be informed and bounded by the parties’ presentations rather than only by the outer limits of the judicial imagination.

Though progressives might be tempted to entrust federal judges with a roving warrant to do justice wherever they deem it necessary, the Constitution commands judicial restraint. The separation of powers is therefore neither a structural nicety nor an institutional inconvenience. As Gorsuch explained, the separation of powers demands that “recognizing, defending, and yes policing, the legislative-judicial divide is critical to preserving other constitutional values like due process, equal protection, and the guarantee of a republican form of government.”

Nowhere has Gorsuch more boldly proven his commitment to a constitutional policing of the separation of powers than in his decisions in the field of administrative law, the body of law governing the administrative agencies that regulate almost every aspect of American life, from the food we eat to the air we breathe. Federal agencies like the Food and Drug Administration, the Environmental Protection Agency, and the Securities Exchange Commission wield what many view as a fourth type of government power not enumerated in the Constitution. These agencies are creatures of Congress, created by federal statute and invested with the power to promulgate regulations that have the force of law, all under the administrative auspices of the executive branch. Further complicating matters, many administrative agencies are granted adjudicative power by Congress. The Social Security Administration, for example, adjudicates more disputes each year than all the Article III courts combined.

The power of administrative agencies has been ascendant ever since the Supreme Court’s decision in Chevron v. Natural Resources Defense Council (1984). In that case, the Supreme Court formulated what is now known as “Chevron deference,” a measure of deference by the judiciary to the interpretations of the statutes by administrative agencies themselves. The case established a two-part test. First, if Congress has spoken directly to the issue at hand, either in the statute itself or in the legislative history surrounding it, Congress’s position on the matter is dispositive. But if Congress has not directly addressed the issue, the court will defer to the agency’s interpretation so long as it is based on a permissible construction of the statute.

Needless to say, lawyers, judges, and scholars have spilled much ink over precisely how much judicial deference is due under Chevron, and under what circumstances. But matters were complicated even further in 2005 with the Supreme Court’s decision in a case known as Brand X. There, a 6–3 majority held that under certain circumstances agency interpretations may actually supersede the judicial precedents of the courts established by the Constitution.

To Judge Gorsuch, these rulings pose a threat to the separation of powers. In a 2016 concurring opinion in a case called Gutierrez-Brizuela v. Lynch, Gorsuch sent shock waves through the field of administrative law, writing:

Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth . . . Founders[,] meet Brand X. Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, the framers sought to ensure that judicial judgments may not lawfully be revised, overturned or refused faith and credit by the elected branches of government . . . . Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X’s terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies.

This probably is not the sort of judicial pushback against executive overreach Senate Democrats are hoping for. Indeed, it was with mock solicitousness that the New York Times implied that Gorsuch’s misgivings about the current state of administrative law stem from childhood trauma.* (His mother, Anne Gorsuch Burford, resigned as head of the EPA in 1983 after refusing to hand over official documents to Congress, citing executive privilege.)

But to conservatives and libertarians, Gorsuch’s willingness to revisit the constitutionality of Chevron deference is long overdue. It reflects a profound commitment to the separation of powers and not a latent hostility toward the administrative state. What is more, Gorsuch would not be alone on the Supreme Court in approaching the doctrine with a measure of skepticism. In two recent cases, Justice Clarence Thomas signaled a willingness to revisit Chevron deference, and the doctrine has provoked a hot bench in oral arguments.

Notwithstanding the fact that he is not yet a member of the Supreme Court, Gorsuch has already begun to make his mark on it. In the wake of the passage of the Affordable Care Act, the Tenth Circuit became one of the front lines in the battle for religious liberty triggered by the Department of Health and Human Services’ Contraception Mandate, administrative regulations that required certain employers to provide insurance coverage for birth control. In Hobby Lobby v. Sebelius, Gorsuch sided with the majority of the Tenth Circuit in holding that the Religious Freedom Restoration Act exempted closely held corporations from providing coverage for contraceptives that they viewed as abortifacients on the ground that doing so would violate sincerely held religious beliefs. And in Little Sisters of the Poor v. Burwell, Gorsuch joined in a blistering dissent that took the majority to task for denying the plaintiffs’ appeal from HHS certification requirements for contraceptive coverage. In both cases, the Supreme Court effectively vindicated Gorsuch’s position: in Hobby Lobby by a 5–4 margin and in Little Sisters of the Poor by a procedural maneuver.

Gorsuch’s proven record on the defense of religious liberties will likely become contentious during his confirmation hearings, particularly in light of current controversies over gay and transgender rights. But conservatives and civil libertarians alike can take heart in Gorsuch’s consistent record on the First Amendment. In his Hobby Lobby concurrence, Gorsuch wrote, “The [Religious Freedom Restoration] Act doesn’t just apply to protect popular religious beliefs: It does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” Indeed, in a 2014 case, Gorsuch defended that refuge on behalf of an inmate serving a life sentence for the murder of his own daughter, ruling that the inmate was entitled to access his prison’s sweat lodge for the purpose of engaging in religious practice.

House Democratic Leader Nancy Pelosi has characterized Neil Gorsuch’s views as “well outside the mainstream of American legal thought.” If true, then it is high time that Neil Gorsuch’s views became America’s dominant judicial philosophy. No need to fill in the blank.