If one is of a certain political bent, President Trump either just whispered a spell over a bubbling cauldron and, out of the miasmic fumes, jumped Neil Gorsuch, a federal judge on the 10th U.S. Circuit Court of Appeals who will serve as Trump’s pick to fill Antonin Scalia’s vacancy on the Supreme Court. If one is of another political bent, Trump raised the avatar of lady justice herself, blind, scales in hand, and placed her onto the Supreme Court. Of course, neither one of these are true, nor should they be.
If confirmed, Gorsuch will not get every decision right, but I believe he is the right choice to be added to the long and illustrious list of justices to have presided on the bench. Having been a staunch skeptic of President Trump for his entire primary and general election campaign, I am choosing to support Gorsuch in the interest of intellectual honesty. I support Gorsuch because of his method of jurisprudence and because I believe it is the only coherent form of constitutional interpretation.
For most political issues, it is possible and desirable for me to visualize the thought process of both sides of an issue before coming to a conclusion based on where I think the evidence leads, or forming an argument based on the same. This is not so with the Supreme Court and the Constitution. I believe, as Gorsuch seems to believe, in the interpretational doctrines of textualism (reading the law plainly as it is stated) and originalism (the law means what it means at the time it was written when possible). The Democratic Party would have the American people believe that this viewpoint is, as Nancy Pelosi put it, “outside the mainstream.” I, however, feel it is the only view that could possibly be considered satisfactory.
Why? To illustrate with an example: the Supreme Court decided 5-4 in Glossip v. Gross that a lethal injection did not constitute “cruel and unusual punishment” as prohibited in the Eighth Amendment. The justices in the majority, especially Justice Alito (who wrote the opinion) and Justice Scalia (who penned a scathing concurrence), noted that the death penalty, delivered in as pain-free a method as possible, was consistent with the jurisprudential history and understanding of the Constitution. In other words, cruel and unusual punishment does not include the death penalty because the United States has been executing criminals since the nation’s inception.
In his dissent, Justice Breyer appealed not to the Constitution, but to his opinion. In his opinion, the death penalty was cruel, unreliable, too harsh, etc. Yet, this is not the purpose of the court. The purpose of the court is to apply the law as it is written, not as they wish it to be.
As it is plain to see, this has nothing to do with conservative or liberal, democrat or republican; it has to do with the law. Those who feel differently, the “living constitutionalists,” would have us rightly believe that the times have changed since the document was written in the 18th century, but it is not for the court to write or rewrite the law. The legislature makes the laws and it is for them to write and repeal law. I say the legislature but, since we live in a representative democracy, really it is us who decide. The living constitutionalists would abrogate the power of the people to vote to decide what laws they would like to have.
In an age when I think all of us are sick of mindless partisanship, the living constitutionalist would have the court act in an explicitly partisan fashion. Instead of arguing about what the law says and what it means, they would rather opinion and consequence win the day. Instead, the argument in the courtroom would center on whether the death penalty, to continue the previous example, is a good idea or a bad idea instead of lawful or unlawful under the present statute. This is unequivocally not the job of the judiciary; it is the job of the legislature.
Neil Gorsuch is not in the mold of the activist judge that I find so distasteful. He seems to be in a mold I find much more palatable than almost any other alternative. He will not be perfect, I will criticize him when need be, but I think he will be a fine jurist. I am pleasantly surprised that Trump chose him, although I doubt the president personally had very much to do with the vetting and final decision. I am far from even convinced the president has more than a tenuous grasp on what the Supreme Court actually does since he claimed his choice for the Supreme Court would be one who would investigate Hillary Clinton’s email server, an authority that a justice of the Supreme Court surely does not have. Regardless, the right choice was made and a broken clock can be right twice a day.
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