February 9, 2017 by John Bruce Leonard
Neil Gorsuch and the Spirit of the Judiciary
NIGH UPON US are the confirmation hearings for Donald Trump’s nomination for the vacated seat in the Supreme Court. The man set to stand them, the Honorable Neil M. Gorsuch, has been greeted in a most skittish manner by liberals throughout the nation. On the one hand, there is an immediate temptation on their part—which is not only perfectly understandable, but should have been anticipated by the right—to return the favor that the Republicans extended to Obama, by opposing any given Trump nomination a priori, simply in the spirit of partisan vendetta. I am not interested in disputing the wisdom of such an attitude: after all, if it wins the day, it will not be to wisdom it owes its victory.
I will neither consider the occasional objections which crop up here and there against Trump’s nomination—namely, that he is a little too conventional, and that it is really high time we got someone on the Supreme Court who did not come of the Ivy League. It seems a question of passing significance to me, where our Supreme Court Justices tend to take their education, confronted with the enormity of the duties they are to assume in our society.
I would rather consider the more ideological objections which have been leveled against Gorsuch, for I find these intimately telling. I believe they stem in all cases from the general intuition that Gorsuch is a very conservative judge, which notion is inferred principally from two common observations:
1.) Gorsuch believes, by his own proclamation, that “life is intrinsically valuable and that intentional killing is always wrong”; and,
2.) Gorsuch, like Antonin Scalia before him, is a Constitutional originalist; meaning that he believes that the law is to be interpreted in accord with the meaning that reasonable readers would have affixed to it at the time of its writing.
Given the politics of today, either and both of these points could be the subject of books entire. Gorsuch himself has written one such book, and Scalia several others. But I would like to point out how curious it is that either of these propositions, in and of itself, should be taken to indicate a peculiarly conservative view of the judiciary. Evidently, we are to conclude that no liberal-leaning justice would subscribe to either one of them: that the intrinsic value of life is the partisan concern of the right, a mere pretext for undermining laws permitting euthanasia and abortion, and the originalist interpretation of the Constitution is but a smokescreen behind which crypto-conservative justices conceal their deepest biases. A liberal justice, it appears, would conceive the value of life as negotiable, and would consider the interpretation of the Constitution to be a matter of personal preference, not to say caprice.
What is most striking about the arguments over the nomination of Gorsuch, is that few of the objections brought against him would have been considered valid by any of the Founders of our country. Indeed, the Founders would have considered both the positions ascribed to him above to be so obviously correct as to defy any and all dispute to the contrary; and anyone who sought to assail them through force of arguments would surely have been regarded as a perverse and unaccountable figure.
This is an issue of moment, and it is most revealing of our contemporary politics. Consider the following statement by Gorsuch:
American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.
I have seen several articles which skirt around the substance of this claim. It is clearly regarded by some liberals as a mark against Gorsuch’s favor, but no one, so far as I have been able to discern, is willing outright to defend the position which Gorsuch here condemns. Yet it is no small matter: the judiciary has been given by long-standing precedent the exceptional power in our Republican government, of determining the final interpretation of the highest law of the land. If that same judiciary takes to constructing the Constitution unabashedly in light of personal political agendas, then judges become in essence legislators, which is so boundlessly contrary the spirit of the balance of powers as to boggle the mind. Gorsuch here indicates the danger and the falsity of that stance: but his opposition to it is tacitly taken to indicate the error in his own judicial deportment.
The defining line between war and politics is law; law is that element which is present in politics, but absent to warfare. When the very meaning of the Constitution is held to be at the thrall of popular will, or open to the interpretation of activist judges, then the defining line between politics and warfare begins most dangerously to cede, and it is only a matter of time before the ultimate consequences of that breech debouch forth to cascade upon our heads.
The current condition of the Supreme Court demonstrates with painful clarity the degree to which our nation has drifted from that anchor of legality whereupon our Founders once firmly bound us. Indeed, there can be no question that the Supreme Court has been politicized in late years, and I maintain that this politicization of the Court is one of the surest and most ominous symptoms of that transformation of our Republic into a democracy, which I discuss at length in my essay on the Democratic Era.
Anyone who doubts which side of American politics has this historical transgression more on its conscience, has but to glance at any of these judiciary ideological scales floating these days about the internet, to see toward which side a traditionalist and centrist like Gorsuch has been forced, by the expansion of the going ideology of the day.