A Man with Integrity

"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.

Great Words from a Great Mind

It’s President’s Day, so I thought I’d share a few favorite quotes from the greats: George Washington and Abraham Lincoln. I’ve done that in past years, however [here and here]. And, while they’re worth repeating every Presidents’ Day, with the death of Justice Antonin Scalia this past weekend, I’m changing plans and quoting him instead.

Justice Antonin Scalia
image from here

He was quotable in interviews and speeches, and maybe regular life. But many of his memorable words come from SCOTUS decisions, particular his dissents. Here are a few.

In reference to the bad decision on King v. Burwell, June 2015, which upheld the Obamacare question concerning state exchanges:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so….

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B….

If the subsidy would be given for any exchange, then it would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.

Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State

is “established by the State.”

There’s more:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And,

They made Congress, not this Court, responsible for

both making laws and mending them.

And this memorable line:

We should start calling this law SCOTUScare.

And this:

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Justice Scalia speaks at Roger Williams University
law school; image from here

I came across this next quote in a PJMedia piece today. It concerns a 1996 free-speech decision, which I believe was to overturn a ban on internet pornography. Scalia wrote in his dissent:

The court must be living in another world. Day by day, case by case,

it is busy designing a Constitution for a country I do not recognize.

Justice Scalia had plenty to say following the Court’s invention of a right for same-sex couples to marry each other, in his Obergefell v. Hodges dissent:

So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

And further in:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.

Followed by:

Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

And to put a finer point on it:

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Justice Scalia was nominated by President Reagan in 1986. He was completing his 29^th session on the Supreme Court this year. I’ve mainly quoted from a couple of recent opinions. There should be books—and probably are or will be—documenting his opinions. And probably more books retelling his wit and wisdom. Those of us who love our country and our Constitution feel a bit bereft right now. We needed him on the Court.

Cartoon by A. F. Branco

As for replacement, the speculation is just beginning. There is plenty of precedent to avoid seating a justice in the last lame-duck year of a presidency. Replacement this far into the term—near the time when opinions are beginning to be written, and most briefs read and considered—is too late for a new justice to come up to speed. Cases resulting in a 4-4 ruling can be reheard in the next term. It is better to have the Court down a number than to have cases badly settled by an unprepared guess.

The next term begins again in the fall, just before the election. There is no hurry from either party to grant the power to name a new justice to an outgoing president, instead of the one to be sworn in in January. A new president can be ready to name a replacement immediately, allowing maximum time for serving in the coming term.

To those of us who valued Scalia’s adherence to the Constitution, it is imperative that we have a justice who reads, understands, and abides by the law, rather than wavering according to the whims of the time.

Postponing the appointment gives us reason to hope. But it depends on the Senate standing firm. Scary thought. But that is what we must pray for. That, and a next president who knows what to look for in a justice.