Opinion

Neil Gorsuch: The election or selection of a justice

Posted April 10

President Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court moved our country into unknown territory as the Senate has changed the rules to prevent a filibuster of confirmation votes for Supreme Court nominees. The Senate is acting in its constitutional responsibility to lend “advice and consent” for the president’s nominations to federal offices.

For most of our history, the Senate viewed its “advice and consent” function as the duty to assure itself that the nominee was qualified to serve and was of good character. However, in the last 30 years, more divided votes have occurred because of the nominees’ perceived judicial orientation.

The tectonic shift occurred during the Senate’s consideration of Judge Robert Bork’s nomination to the Supreme Court in 1987. Bork was highly controversial for many reasons. The left successfully laid siege against him and in the process spawned a new word, to “bork,” which is to mount an aggressive, highly critical campaign against a nominee for public office by attacking and defaming the person’s background and record.

Prior to the Warren court, a tacit agreement seemed to exist that judges don’t make policy; they merely follow precedent. According to this line of thinking, a liberal Democrat judge and a conservative Republican judge would — in their black robes — follow precedent to the same outcome. But the Warren court and subsequent majorities have expansively construed the Constitution to find a host of new political rights. Critics have called this legislating from the bench.

Chief Justice John Roberts defended judges in his confirmation hearings this way:

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. But it is a limited role. Nobody ever went to a ballgame to see the umpire. Judges are not politicians who can promise to do certain things in exchange for votes. I will remember that it's my job to call balls and strikes and not to pitch or bat."

Gorsuch agreed. “If judges were just secret legislatures declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.”

For all the talk of balls and strikes, the Supreme Court is a highly political institution — for several reasons. There is not always precedent for hard issues, and precedent is not always clear. Cases often come to the Supreme Court precisely because there is no precedent. Indeed, judges ought to make policy in some cases.

Our inherited common law has developed as judges applied precedent and wisdom to new fact situations. Judges sometimes justifiably go beyond the case at hand and declare rules to be binding in future cases such as the famous Miranda ruling. Moreover, constitutional cases often present courts novel cases that the Constitution does not neatly address. The Constitution was written 230 years ago and did not address many legal issues our nation faces. Justices need to find some rationale by which to filter these issues through the Constitution.

Former Justice Antonin Scalia and his “originalist” colleagues would look to the language and plain meaning of the Constitution to resolve new questions of law. Liberal justices have used other touchstones such as societal development, scientific conclusions and changing national and international mores. However, once you leave the Constitution itself, there seems to be no boundaries around what criteria a judge could apply.

One has to give credit to the conservatives for trying to adhere to the Constitution’s text. When textual fidelity combines with judicial modesty and restraint, judges will often find they have no sufficient basis to make a ruling, and will not step into the void and impose their own views. They will, rather, invite the legislative body to address the matter.

Unfortunately, neither side has completely clean hands. In practice, both have decided cases according to their political/social views.

Gorsuch will apply the language and intent of the Constitution to constitutional questions and will endeavor to set his politics aside. His record reflects his earnest commitment to do so.

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