by Joseph Klein
Senate Democrats signal a war ahead.
President Trump has nominated Judge Neil Gorsuch, 49, to fill the Supreme Court seat held by Justice Antonin Scalia until he passed away last February. In announcing the nomination, President Trump said, "Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support." President Trump added that Judge Gorsuch was “the man our country needs and needs badly to ensure the rule of law and the rule of justice.”
Judge Gorsuch was a Marshall Scholar at the University of Oxford, a Harvard Law School graduate, and a clerk for Supreme Court Justices Byron White and Anthony Kennedy. He served in a high-ranking position in the Justice Department before he was nominated by former President George W. Bush and confirmed by voice vote in the Senate for a seat on the United States Court of Appeals for the 10th Circuit in 2006.
Judge Gorsuch shares Justice Scalia's originalist legal philosophy. Like Justice Scalia did throughout his judicial career, Judge Gorsuch seeks to interpret the Constitution through strict construction of its text and an understanding of the Founding Fathers' original intent.
“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Judge Gorsuch remarked at Case Western Reserve University School of Law in Cleveland. He said that judges should refrain from imposing their own moral predilections in their decisions. Instead, they should use “text, structure and history” in their interpretations of the law. Legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Judge Gorsuch said. However, “judges should do none of these things in a democratic society.”
As Judge Gorsuch put it in one of his opinions, judges should “apply the law as it is, not as they wish it to be.”
It is this approach, as reflected in his opinions, which explains Judge Gorsuch’s ranking near the top of the so-called "Scalia Index," created by some legal academics, to analyze who would be likely to best follow in Justice Scalia’s footsteps.
Judge Gorsuch is well known for having written a concurring opinion in the case of Hobby Lobby Stores v. Sebelius, which recognized the validity of an employer’s claim that the contraception mandate in the Affordable Care Act substantially burdened the owners’ religious freedom in violation of the federal Religious Freedom Restoration Act:
“All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case… As the Greens describe it, it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible. And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.” (Emphasis in the original)
The Supreme Court’s subsequent ruling in the Hobby Lobby case comported with Judge Gorsuch’s conclusion. Judge Gorsuch also supported the position of the Little Sisters of the Poor Home for the Aged in their own challenge to the Affordable Care Act mandate for them to take certain actions that they thought would violate their religious beliefs.
In another case, Green v. Haskell County Board of County Commissioners, Judge Gorsuch wrote a dissenting opinion in which he argued that the First Amendment’s Establishment Clause should not be construed so broadly as to prohibit the display of donated monuments on government owned property just because they include the Ten Commandments. “Whatever else might be said, if an inclusive display where the decalogue makes an appearance was acceptable to the Supreme Court…similar displays should be acceptable to us.”
In an area of the law that could affect the amount of discretion administrative agencies in the federal bureaucracy have in interpreting and enforcing broadly worded statutes, Judge Gorsuch came down on the side of less judicial deference to agency decisions. Judge Gorsuch’s inclination to exert tighter judicial control to guard against runaway administrative agencies is in accord with the Trump administration’s overall goal of curbing the power of the vast federal bureaucracy. Ironically, however, in applying his approach in limiting administrative agency discretion, Judge Gorsuch’s decision in the case of Gutierrez-Brizuela v. Lynch came out in favor of an immigrant seeking relief from a changing interpretation of immigration law by the Board of Immigration Appeals. The Board had applied its new interpretation retroactively to deny the immigrant the formerly available option of seeking an adjustment of status rather than have to accept a ten-year waiting period outside the country.
In addition to the majority opinion that he wrote in the Gutierrez-Brizuela case, Judge Gorsuch expanded on his view of administrative agency discretion in a concurring opinion. He expressed concern about the tendency of “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In so doing, he suggested that a long-standing Supreme Court decision granting administrative agencies broad leeway in interpreting acts of Congress be re-examined.
Judge Gorsuch has written on the Second Amendment, stating in one opinion that "the Second Amendment protects an individual's right to own firearms and may not be infringed lightly." Noting the importance of the individual right to self-defense, he added that there is "a long tradition of widespread gun ownership by private individuals in this country."
Judge Gorsuch has not ruled on the scope of abortion rights or staked out a definitive position on the fate of Roe v. Wade. He did write in a book of his, entitled “The Future of Assisted Suicide and Euthanasia,” however, that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” That could well be taken as a pro-life perspective.
Barack Obama had tried, in the waning months of his presidency, to change the ideological balance of the Supreme Court when he submitted his election year nomination of Judge Merrick Garland to the Senate for approval. To his credit, Senate Majority Leader Mitch McConnell held firm and refused to indulge Obama's desperate ploy to replace Justice Antonin Scalia with his ideological opposite before the American people had the opportunity to weigh in with their vote for the next president.
Democrats threatening to filibuster President Trump’s nomination claim that Justice Scalia’s vacant seat was “stolen” from them. To the contrary, they had sought to deprive the American people of their say in a presidential election year as to whether the Supreme Court should remain right-of-center, as it had been prior to Justice Scalia’s death, or whether it should move in a leftward direction.
President Trump won the election, in part on the promise to nominate a replacement for Justice Scalia with the same originalist philosophy as Justice Scalia's. As Barack Obama said back in 2010, "elections have consequences."
Democratic Minority Leader Schumer is already expressing concerns that Judge Gorsuch “has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent justice on the Court.” That is complete nonsense, as even a cursory review of Judge Gorsuch's opinions clearly demonstrates. Senator Schumer did not have any problem supporting Judge Gorsuch for a seat on the 10th Circuit Court of Appeals in 2006. He should have none now.
Republicans did not filibuster Barack Obama's first two nominees for the Supreme Court, Elena Kagan and Sonia Sotomayor. If the Democrats attempt to filibuster President Trump's choice, Senator McConnell will need to extend the so-called nuclear option eliminating the filibuster for presidential nominations that former Senator Harry Reid had done for lower court judges and executive nominations when he was the Democratic Majority Leader. The Supreme Court is too important for the Democrats to be allowed to sabotage by obstructing a demonstratively meritorious nominee with their childish games.
Joseph Klein is a Harvard-trained lawyer and the author of Global Deception: The UN’s Stealth Assault on America’s Freedom and Lethal Engagement: Barack Hussein Obama, the United Nations & Radical Islam.
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