While President Donald Trump has become known for the unpredictable, his nominee for the U.S. Supreme Court, 49-year-old Judge Neil Gorsuch, seems anything but unpredictable. But when it comes to issues that matter most to the oil and gas industry, such as deregulation, his stance can be a bit of a guessing game.
Gorsuch, who serves on the 10th U.S. Circuit Court of Appeals in Denver, was nominated to fill the vacancy left by the death of Justice Antonin Scalia. In many ways, Gorsuch is considered similar to Scalia in legal philosophy. He also favors originalism and textualism and believes decisions should be made without regard for real-world outcomes.
Those are characteristics the president noted in his introduction of Gorsuch at the White House on Jan. 31.
“When Justice Scalia passed away suddenly last February, 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,” Trump said when announcing his selection Jan. 31. “I promised to select someone who respects our laws and is representative of our Constitution and who loves our Constitution and someone who will interpret them as written.”
Gorsuch has always been a proponent of the legislative body writing laws and courts simply applying them.
“It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said at the announcement, which was televised live.
But, unlike Justice Scalia, Gorsuch, who is the son of Reagan-era U.S. Environmental Protection Agency Administrator Anne Gorsuch Burford—the first woman to head the agency—has criticized judicial deference to agency interpretations of regulations.
While his approach to deregulation would appear to favor business, “his legal reasoning is divorced from policyand outcomes. He may not have allegiances to any particular types of industry,” Ryan Eletto, Kathryn Schroeder and Jason Hutt, attorneys with the law firm Bracewell, wrote in a joint blog.
“For example, in the 2015 case of Energy and Environment Legal Institute v. Epel, Judge Gorsuch sided with a renewable energy company in finding no violation of the dormant commerce clause,” they wrote.
But, they added, “his commitment to limiting government interference is expected to be generally advantageous to industry, including both fossil fuels and renewables.”
Despite that, Gorsuch’s confirmation isn’t a given in what promises to be a highly contentious confirmation hearing in today’s highly partisan Congress.
“His confirmation will be met with substantial scrutiny from Congress—and attention from the environmental community in light of his views on the Chevron Doctrine,” the attorney’s wrote.
Originally announced in the 1984 decision Chevron v. Natural Resources Defense Council, the doctrine grants broad deference to executive branch agencies in interpreting acts of Congress when the laws are ambiguous and the agency interpretation is reasonable.
In last year’s challenge to the ruling, Caring Hearts Pers. Home Servs., Inc. v. Burwell, Gorsuch decried the amount of rules and regulations that were able to be issued due to Chevron deference.
Gorsuch said Chevron turns administrative agencies into a “super-court of appeals. If that doesn’t qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we’ve forgotten what might.”
He added, “When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation.”
Gorsuch’s criticism of the amount of rules issued due to the Chevron Doctrine will likely top the list of his decisions that will be scrutinized by Democratic senators during the confirmation hearing.
But others say Gorsuch’s academic and judicial credentials will offset politics.
“Gorsuch’s combination of outstanding intellectual and personal qualities places him in the top rank of American jurists,” Robert P. George, a McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University, who worked with Gorsuch in academia, wrote in a Washington-Post article. “If confirmed, as I expect him easily to be, he will certainly be a good justice and has the potential to be a great one.”
Len Vermillion can be reached at lvermillion@hartenergy.com or @LenVermillion
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