Gorsuch may be best option for Democrats

President Trump may come to question the wisdom of his nomination of federal appeals court judge Neil Gorsuch to the U.S. Supreme Court.

During the 2016 presidential campaign, Mr. Trump pledged to nominate someone in the mold of the late Justice Antonin Scalia, who died almost exactly one year ago, leaving a vacancy on the court.

What Mr. Trump meant by that was no doubt what American conservatives mean — someone whose positions on hot-button social issues line up with the political right.

Judge Gorsuch’s judicial decisions, concurrences and dissents indicate that he probably meets those criteria in many cases.

But that doesn’t necessarily predict where he will come down when the Supreme Court takes up hotly contested cases.

Judge Gorsuch is an originalist and a textualist.

Those terms describe the approach of a judge who seeks to discover what the wording of the U.S. Constitution actually meant at the time it was approved some 230 years ago.

Justice Scalia was the same kind of judge in that regard. But Gorsuch differs from Scalia in a few crucial ways.

One of those is how much deference the court should give to federal agencies.

Justice Scalia was inclined to grant considerable power to the federal administration.

Judge Gorsuch, if his judicial decisions are any indication, gives more weight to the separation of powers, both in terms of the balance between Congress and the president, and in the powers of the states as opposed to the executive branch.

Judge Gorsuch’s inclinations may therefore put him at crossed swords with Mr. Trump before long, since Mr. Trump, by all indications, intends to govern by executive order as much as possible.

If Congress, even though it’s dominantly Republican, should oppose one of Mr. Trump’s orders, Judge Gorsuch may well side with Congress if the dispute reaches the Supreme Court.

Mr. Trump’s disappointment with that outcome would be huge.

Even if the Supreme Court’s 1973 Roe v. Wade decision, which by a vote of 7 to 2 declared abortion legal nationwide under certain circumstances, is overturned in the near future, Judge Gorsuch may favor allowing states to decide for themselves whether to continue legal abortions, rather than setting a one-size-fits-all national policy.

Judge Gorsuch has not declared his position on abortion one way or the other. He may personally oppose abortion. But his judicial history shows that he gives considerable weight to the concept of “stare decisis,” which is the legal term for observing the power of previous decisions.

Roe v. Wade now has a 44-year history as established law. And the fact that it was decided 7 to 2, rather than a narrower 5-4 outcome, lends it even more weight.

One other clue: Judge Gorsuch served as a law clerk for Supreme Court Justice Anthony Kennedy, the so-called swing vote on the current court. He also clerked for the late Supreme Court Justice Potter Stewart, known for his pragmatic decisions.

The English novelist George Orwell in 1949 wrote his anti-utopian novel “1984.” It’s about a nation whose masses, the “proles,” are kept in the dark about the truth of their government and their own lives through disinformation — what today might be called “alternative facts.”

Two weeks ago, “1984” stood in 105th place on the Amazon best-seller list in the United States.

Last week it was number one.

Booksellers can’t keep up with the demand. The book’s publisher has hastily scheduled another printing of 75,000 copies.

The reason, of course, is that the world of “1984” appears to bear a startling resemblance to where the United States, in the minds of many, could be heading under Mr. Trump.

Nothing in Judge Gorsuch’s education, background or judicial writings suggests that he would put up with a totalitarian, strong-man government. Far from it.

I write this rough analysis with considerable trepidation.

I’m not an attorney, and certainly not a student of the judiciary. I also recall with embarrassment my editorial prediction in the Bee or Herald in 1968 that soon-to-be-President Nixon’s choice of Spiro Agnew for vice president was a wise one, and that Agnew was a well-meaning political moderate who would serve as a worthy successor to Nixon when the time came.

To quote the current president: “Wrong.”

I may be wrong about Judge Gorsuch’s inclinations. But a quick review of his biography and intellectual life suggests that he will not try to “legislate from the bench,” regardless of his own personal preferences.

He may turn out to be more like Justice Kennedy or Justice Stewart than Justice Scalia.

He may be the best nominee the Democrats can hope for.