New judicial litmus test, used to select Gorsuch, aims to shrink the 'administrative state'

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Justice Neil M. Gorsuch.

Past Republican administrations have employed an unspoken litmus test on judicial picks. The judges had to be anti-abortion or they had to have conservative views on social issues.

But the Trump administration has a new litmus test: whether the judges will help tame the “administrative state,” the New York Times reports. The term, once used by academics, entered the mainstream last year thanks to former White House chief strategist Steve Bannon.

The idea is to appoint judges who disagree with giving federal agencies broad powers to interpret laws and enforce regulations, the Times explains. The test was used when Trump nominated appellate Judge Neil M. Gorsuch to the U.S. Supreme Court. Gorsuch has opposed the doctrine of Chevron deference, which holds that federal courts should defer to reasonable federal agency views when Congress passes ambiguous laws.

White House counsel Don McGahn explained the test in a speech to the Conservative Political Action Conference last month. He said the Trump administration had a “coherent plan” to press for deregulation while appointing judges who oppose the accumulation of bureaucratic power.

South Texas College of Law professor Josh Blackman said the issue of gay marriage is settled and courts aren’t going to overturn Roe v. Wade. The idea is to “go somewhere you can put some points on the board,” he told the Times.

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