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February 03, 2017

Worried About an Imperial Presidency? Support Gorsuch

If you’re worried, as I am, that President Trump will both threaten civil liberties and expand the power of the Presidency even further than Obama took it, you should support the nomination of Neil Gorsuch to the Supreme Court. His record indicates that he will defend the constitution and our rights under it.

Neal Katyal was an acting solicitor general in the Obama administration. He knows Gorsuch both personally and professionally. Here’s some of what he wrote in a New York Times op ed:

“I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court…

“I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him [emphasis mine]. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.”

Yes, Gorsuch is a conservative in the same way the late Antonin Scalia was; he is a strict constructionist. He does not think it is the job of the courts to rewrite the Constitution to accomplish goals which Congress or the States have not accomplished, no matter how worthy those goals. He does not support executive branch attempts to legislate by misinterpreting statute (see above).

Most importantly, as a strict constructionist, he does not think that court rulings should reflect the personal views of the judges. This makes his personal views on social issues largely irrelevant. For example, he has written that he is against assisted suicide. I do think it should be allowed. If a case on assisted suicide comes to the Supreme Court, I think Gorsuch would vote that states have a right to permit or deny the practice even though he thinks (personally) it should be banned.

The elephant in the room is Roe vs. Wade, the Supreme Court decision that states cannot ban abortion although they can regulate it like any other medical procedure. This decision ended an era of hypocrisy when I was a young adult in which rich guys’ pregnant girlfriends could get abortions (often in Canada) and poor couples had shotgun weddings. Also women had very dangerous illegal abortions. I think this decision got the right result in the wrong way – judicial legislation. The danger in that is now clear: if unelected judges can make law, they can also unmake it.

If Gorsuch is confirmed, the court will have the same liberal-conservative balance it had before Scalia’s death. Justice Kennedy is often the crucial swing vote, although, on any particular issue, the Chief Justice may vote on the “liberal” side – as he did in a key decision on Obama Care. Roe vs. Wade is probably not endangered by confirming Gorsuch. However, if Trump appoints a replacement for a liberal Supreme, it may be. The worst case, I think, is that the court rules that states “may” ban abortion. The good news is that we can all weigh in at the state level.

Some of Gorsuch’s decisions have benefited businesses; others have not. As far as I can tell, he has followed where the law and constitution lead. It is not the role of the courts to achieve any outcome except adherence to applicable law and the constitution. If the law is wrong but constitutional, then the law must be changed legislatively.

Please forget the fact that Republicans did not allow hearings to be held on Obama’s Supreme Court nominee. 1) we’re not going to go four years with filling Supreme Court vacancies; 2) this is very much an inside the beltway issue with senators shamelessly changing sides depending on circumstance.

Here’s what Senator Schumer said back in 2007 at the end of the Bush Presidency: “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.”  Way back at the end of the elder Bush’s term, Joe Biden was chair of Senate Judiciary. He said that the President “should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.” There turned out not be a vacancy, but, had there been one, Biden said his committee should consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.” (these quotes are from a Wall Street Journal story).

The practice of appointing Supreme Court Justices for life is a good one; it makes them independent.  Many presidents have been “disappointed” by the rulings of their appointees. If Trump tries to trample constitutional rights, I think he’ll find Neil Gorsuch an obstacle. We need a constitutional firewall against growing executive power in general and this President in particular.

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