"One man with integrity is a majority."
— Thomas Jefferson
I’ve watched, here and there, parts of the Neil Gorsuch hearings. I think he has done well. While we have been deceived about the promise to adhere to the written Constitution before (with Sandra Day O’Connor, Anthony Kennedy, John Roberts, and others), there is reason to hope that Neil Gorsuch will be an excellent replacement for Justice Scalia.
|Neil Gorsuch, during nomination hearing|
photo from CNN
The balance of the Court doesn’t change yet. That fight will likely come with the next justice replacement.
The Senate’s role is to advise and consent. They advised president Obama that, during the last year of his presidency, with a presidential race underway, and no time to appoint before it was too late for last year’s rulings. During Obama’s first term the House went Republican; during his second term the Senate majority went Republican. It appears the American people would not favor replacing a conservative with one ideologically at odds with the majority of the people.
One of the (very few) reasons to vote for Trump was his promise to appoint conservative justices in the mold of Antonin Scalia. It was in exchange for that promise that Ted Cruz gave his endorsement. And he gave a strong supporting statement earlier this week during the hearings.
The Heritage Foundation put together a short ebook describing Gorsuch’s career, and what we are likely to see from him, in comparison to Scalia. It mentions both are sensitive to overcriminalization. Gorsuch has asked, “What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”
Gorsuch has pointed out a historical example:
[H]istory bears warning that too much—and too much inaccessible—law can lead to executive excess as well. [The Roman emperor] Caligula sought to protect his authority by publishing the law in a hand so small and posted so high that no one could really be sure what was and wasn’t forbidden.
Both are textualists—which is a technical difference from originalist (although I generally think of them the same, and, along with many conservatives, use the terms interchangeably). As Scalia put it,
Textualism means that you’re governed by the text. That’s the only thing that is relevant to your decision. Not whether the outcome is desirable. Not whether legislative history says this or that. But the text of the statute.
In his book, Reading Law, Scalia uses this description:
We seek a return to the oldest and most commonsensical interpretive principle: In their full context, words mean what they conveyed to reasonable people at the time they were written.
It was often a delight to read Scalia’s opinions. And it was a delight to hear him speak, as a pleasant, colorful, down-to-earth human being who just happened to have a quick and well-reasoned mind.
I’m hoping to appreciate Gorsuch in many of the same ways. He will be a different personality, a different person. But it appears he uses his well-reasoned mind in similar ways—principle-based ways. He is reported to be a man of integrity. Commonsense together with integrity are greatly needed in our hopes of restoring our country to the Constitution.
|Scalia and Gorsuch on a fishing trip|
photo from here
Meanwhile, Democrats are threatening to fight the appointment, to the point of filibuster, along party lines, not based on anything they can find against Gorsuch.
If they do this, they will completely lose their veneer of good intent. They will have said that no one, no matter how capable, unbiased, and well-qualified in the law, will meet their approval. They do not want a justice who reads the law and gives an unbiased ruling based on the law; they want someone who will contort the law, make it up, and word things in an obfuscating way, all to get a pre-determined partisan outcome.
I hope, for the sake of the future of our country, that at least some of these partisans can see reason, and do the honorable thing and support the Gorsuch nomination. I don’t prefer what is being called the “nuclear” option. But there is no way that a country willing to vote for Trump mainly for the purpose of getting judges who abide by the law will be cowed by anti-law Democrats throwing a tantrum. They would be wise to see reason in the coming weeks.