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Gorsuch meets the highest standards

John Yoo, law professor | February 7, 2017

Neil Gorsuch and Dianne Feinstein (AP photo)After a terrible week beset by controversy over immigration, Donald Trump finally used presidential power in a measured, deliberate way. In choosing Neil Gorsuch for the U.S. Supreme Court, Trump kept his campaign promise to replace Justice Antonin Scalia with a judicial conservative, though one with intriguing wrinkles. If Democrats reflexively try to defeat Gorsuch, they will only escalate the confirmation wars to a new level while guaranteeing an even more conservative Supreme Court.

To the extent qualifications matter in this hyperpartisan time, Gorsuch meets the highest standards. He went to Columbia for college and Harvard for law school, clerked for Justice Anthony Kennedy, won Truman and Marshall scholarships, and served as a Bush Justice Department official before his appointment to the federal appeals court in Colorado. If only he had joined the Union League, he would have been perfect.

While certainly conservative, Gorsuch sits well within the mainstream of the American judiciary. He believes that judges should answer constitutional questions by focusing only on the constitutional text and history, and keeping their own politics out of it. “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be,” Gorsuch has written. They should not “decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

A review of Gorsuch’s decisions as an appeals judge shows that he sticks to his principles. He has sought to carefully parse the constitutional text, structure, and history without giving free rein to his personal policy views. He is also an entertaining writer — as much as judicial opinions can entertain — but without Scalia’s acerbic, sometimes abrasive, wit. “Often judges judge best when they judge least,” Gorsuch wrote last year.

Gorsuch is best known for his decisions on religious liberty. In the Hobby Lobby case, Gorsuch found that the Affordable Care Act could not force a private company to provide health insurance with a contraceptives benefit, if it violated the religious beliefs of the owners. The Supreme Court narrowly upheld Gorsuch’s view. In the Little Sisters of the Poor case, Gorsuch dissented when his colleagues voted to subject a Catholic charity to that same Obamacare mandate. The Supreme Court overturned the decision and sent it back for negotiation of a compromise.

Senate Minority Leader Charles Schumer, however, promises to block any “extremist” nominee who is not “bipartisan” and “mainstream.” Some senators, such as Elizabeth Warren and Ed Markey of Massachusetts, have already declared their opposition without waiting for a hearing to explore Gorsuch’s views. They must label as “extreme” a judge who observes the difference between interpreting the Constitution and making policy, so that our elected representatives can continue to make our most important decisions on social policy.

If Gorsuch is extreme, then so are Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito and, indeed, Justice Scalia himself. Justices on the leftward end of the Supreme Court — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — made similar claims during their own confirmation hearings. In a nod to Scalia’s influence, Kagan famously declared: “We are all textualists now.” Apparently, extremists have already hijacked the Supreme Court.

The confirmation process, however, has come to focus less on methods than results, and to focus on a singular case — Roe v. Wade — rather than on constitutional principles. Gorsuch has neither decided a case involving abortion nor, as did another contender for the nomination, Judge William Pryor, has he declared Roe to be an “abomination.” Nevertheless, senators will attempt to divine Gorsuch’s views on abortion, just as President Trump must have — Trump, after all, promised during the campaign to appoint only “pro-life judges.”

Democrats may refuse to confirm Gorsuch because Republicans refused to grant Merrick Garland a vote during the last year of the Obama presidency. That may be a legitimate gripe, but Republicans were only continuing the downward spiral of the confirmation process since the hearings for Judge Robert Bork. Both parties have steadily stripped away the special treatment of judicial nominees, but the Supreme Court has only itself to blame. As it has broadened its reach to command national policy on everything from abortion to guns, race, and religion, one of the few ways Americans can voice their views on these issues is to fight over Supreme Court nominees.

If past patterns hold, Republicans will unify behind Gorsuch and Democrats will have to decide whether to filibuster the appointment. Democratic senators in states that voted for Trump — such as Pennsylvania’s Bob Casey — will find themselves in the tough spot of vetoing a reasonable conservative judge. It would also prompt Republicans to exercise the “nuclear option” of eliminating the filibuster and allowing the confirmation of Supreme Court justices by 51, rather than 60, votes.

Demonizing Gorsuch not only will prove unsuccessful, but it would also ignore significant differences between the nominee and his predecessor. One is his interest in natural rights. Scalia, like Bork, followed a strictly positivist vision of the Constitution that rejects any rights unmentioned in the text itself. During his failed confirmation hearings, Bork famously called the Ninth Amendment (which declares that the Bill of Rights cannot be read to deny the existence of “others retained by the people”) an “inkblot” without meaning. Gorsuch, by contrast, studied with one of the world’s leading natural law thinkers and published a book in 2006 criticizing euthanasia and assisted suicide because “the intentional taking of human life by private persons is always wrong.” Gorsuch’s views reject the arid Bork-Scalia approach in favor of an ancient natural rights tradition that, for example, led Lincoln to conclude that slavery was unconstitutional and immoral.

A second sharp difference lies in Gorsuch’s attitude toward our runaway regulatory state. Judges like Bork and Scalia demanded that the judiciary defer to the decisions of the administrative agencies when interpreting the scope of the powers delegated by Congress. The resulting Chevron doctrine accepted that agencies held greater technical expertise and democratic legitimacy than unelected judges. Gorsuch, however, recently criticized this deference, which “swallow[s] huge amounts of core judicial and legislative power and concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” If he were to join the Supreme Court, Gorsuch no doubt would favor exposing the regulatory state to greater judicial control, for, as he wrote, “maybe the time has come to face the behemoth.”

Trump has picked no Scalia clone. While rooted in the constitutional text and history, Gorsuch might still pursue a more activist course than the usual conservative judge. He could well trigger a movement to limit the executive’s regulatory powers in favor of a renewed vision of individual freedom. Senators would only advance a senseless, self-defeating strategy if they were to sacrifice this potential for positive change at the court to strike a blow for partisan politics.

Crossposted from the Philadelphia Inquirer

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