There were several ghosts present at the ceremony on Tuesday night, in the East Room of the White House, at which President Donald Trump introduced Judge Neil Gorsuch, of the United States Court of Appeals for the Tenth Circuit, as his nominee for Supreme Court Justice. Some were mentioned and others ignored, but all together they gave the event an unsettled air. The President didn't seem to notice. "This may be the most transparent judicial-selection process in history," he said, before asking Gorsuch—a man who has “an extraordinary résumé, as good as it gets!”—and his wife, Louise, to emerge from the wings. Then Trump mentioned Justice Antonin Scalia, whose death, last February, opened up the seat for which, thanks to the cheap machinations of Republicans in the Senate, Trump was naming a nominee.
Trump told those in the audience that Maureen Scalia, the Justice's widow, was present, and reminded them that he had promised to put someone much like Scalia on the Court. "Millions of voters," Trump said, had cast their ballots for him for that reason. Gorsuch was on the short list of judges, approved by various conservative think tanks, that Trump had been waving in front of those voters for more than a year. (So was Thomas Hardiman, the Pittsburgh judge whom Trump's team, perhaps in an attempt to drum up some mystery, had portrayed as a scrappy contender for the seat—and who is a colleague of Trump's sister, which is the sort of detail given disproportionate weight in this White House.) Gorsuch’s record as a judge is Scalia-like in terms of specific decisions. In the Hobby Lobby case, Gorsuch was part of an appellate panel that ruled in favor of the plaintiffs, the owners of a chain of craft stores who said that they had a moral objection to providing an insurance plan that covered contraception, in a decision that partially undermined the Affordable Care Act, and any number of future laws, in the name of religious freedom. Gorsuch has not ruled on abortion rights, though passages in his writings have been cited to suggest that he would be aligned against Roe v. Wade. And his embrace of "originalism," which claims to look only at the language of the Constitution, but in practice has been inflected with a conservative agenda, indicates that he would follow the same road as Scalia, to the same places.
And where are those places? As my colleague Jeffrey Toobin wrote last year, Scalia's legacy is a more embittered, backward-looking vision of America, distrustful of efforts to form a more perfect union by, for example, recognizing how certain groups' claims to their constitutional rights have been ignored. As Toobin noted, Scalia gave gun rights a mythical place in the American past while being dismissive of the discrimination that is a real part of our history. Scalia’s originalism, which Gorsuch strives to emulate, involved talk of deferring to Congress while also tearing apart the Voting Rights Act. Because Scalia was a good writer and a clever speaker, some people found his contempt charming. Gorsuch went farther; in a speech last year, much circulated in recent days, he said that he had been on the ski slopes in Colorado, "with little on my mind but the next mogul field," when he got a news alert about Scalia's death. "I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears," he said. (Was he as moved when Scalia said, "If we cannot have moral feelings against homosexuality, can we have it against murder?") Gorsuch, who is based in Colorado, has been presented as a Westerner, as if that set him apart from the corrupt ways of the big cities of the East. But he also lived in Washington, D.C., where his mother was an E.P.A. official who fought with environmentalists—and he was educated at Columbia, Harvard, and Oxford, where he was a Marshall Scholar. (Trump was not wrong about the résumé.) One can add to that his clerkships with the late Justice Byron White and with Justice Anthony Kennedy, who will be his colleague if he is confirmed. In Republican circles, there is hope that Gorsuch will be able to sway Kennedy, traditionally a swing voter on the Court, or even make him more comfortable with the idea of retiring (he is eighty) and becoming a judicial ghost himself.
On Tuesday night, Gorsuch, once he had thanked Trump, also expressed his awe at the moment in terms of Justices past. "The towering judges that have served in this particular seat of the Supreme Court, including Antonin Scalia and Robert Jackson, are much in my mind at this moment," he said. He went on to rhapsodize about Scalia as "a lion of the law," adding, "I miss him." But he was silent about what it was, exactly, about Justice Jackson's career that might preoccupy him. Perhaps, a few days after Trump presented what amounts to a rough draft of an attempt to keep Muslims from entering the country, it might be Jackson's lucid dissent in Korematsu, the Supreme Court decision permitting the internment of Japanese-Americans. As the Administration tosses aside America's commitment to accept refugees from war, Jackson's time as a prosecutor at the Nuremberg trials might resonate, too.
Gorsuch, with his wife beside him, and Trump regarding him with narrowed eyes, appeared pleased and grateful as he spoke; he is forty-nine years old, and could be on the Court for decades. Conservatives could hardly be happier. Although a number of Democratic senators, including Chuck Schumer and Elizabeth Warren, have said that they would oppose him, or anyone on Trump's list, they have yet to show that they can mount an effective fight against a Trump nominee, let alone one with Gorsuch's on-paper credentials and judicial manner. (They might have had an easier timing stopping William Pryor, another name on Trump's list, who has been a little too indiscreet in his partisanship.) But, given the events of the past week, the Democrats might finally be ready to give it a serious try.
The Republicans, after all, were able to keep this seat open for close to a year by refusing even to acknowledge President Obama's nomination of Merrick Garland, whose credentials are no less impressive than those of Gorsuch. Trump did not mention Garland on Tuesday night, as he led Gorsuch to the seat that Garland should have filled, on a Court that will, for a long time, be haunted by his absence.