Neil Gorsuch's Common Sense
Corey Uhden, Politics Contributor
Count me among the conservatives that didn’t support the Senate Republicans’ refusal to consider the nomination of Merrick Garland to the Supreme Court. They should have held multiple hearings to explore Garland’s history of deference to the presidency, support for federal supremacy, and reticence to check the ambitions of legislators in the states and Congress. They should have brought Judge Merrick Garland to a final vote and rejected him in front all of the world as a qualified judge, but inappropriate for the Supreme Court. They should have made a great big political spectacle out of explaining the proper role of a Supreme Court Justice and exposed the Democrats’ obsequious obsession with judicial activism. With the fight to confirm Judge Neil Gorsuch to the Court, it is time for a great debate on the role of the Supreme Court, the rigors of the U.S. Constitution, and the common sense behind the rule of law.
Conservatism is the politics of strict construction - written law is clear, not ambiguous, and not subject to novel interpretations or evolution. The counter-argument - some laws are incomplete or inadequate, often carried out with bias or even animus - is a case for new laws, not new modes of interpretation or rewriting existing law through the court system. As Judge Gorsuch puts it: “in our legal order, it is for Congress and not the courts to write new laws.”
Progressives’ obsession with investing power in the administrative state marks an unfortunate departure from the rule of law to rule by bureaucrats. As Obama left office, his administration had instituted an estimated $1 trillion in new regulations. In Judge Gorsuch’s estimation, the judicial branch’s reticence to check such bureaucratic lawmaking amounts to an “abdication of the judicial duty.” He observes, “under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more.”
People on both sides of the aisle surely agree that the most important role of the judicial branch is to check the ambitions of the other two branches of government. Now that the legislative and executive branch are controlled by Republicans, progressives should be more assertive than ever that only blind justice offers a chance to curtail President Trump and the Republicans. To be sure, President Trump’s attacks on judges that have ruled against him raise concerns about the his commitment to the independence of the judiciary, but as lawmakers pore through Judge Gorsuch’s opinions, such as United States v. Carloss, they will find a true skeptic of governmental power and a true believer in minority rights. Indeed, throughout his marathon confirmation hearings, a polite, earnest Gorsuch attested to his profession in terms of fair, neutral arbitration and access to the full measure of equal justice for all.
If Neil Gorsuch is confirmed, he will take a different oath of office than the president or members of Congress. Instead, a Supreme Court Justice affirms, “I solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent under the Constitution and laws of the United States.” By every account, there is no one that has proven themselves more worthy of this obligation. Judge Neil Gorsuch’s opinions and statements suggest he fully comprehends and reveres the role of a Judge as an independent, impartial arbiter.
With Gorsuch, conservatives can place fidelity to the Constitution and the law as the primary focus of a Supreme Court Justice. The truth is we have no idea how a Justice Neil Gorsuch might rule on the issues of abortion or same-sex marriage. What we do know is that Gorsuch believes judges should “strive (if humanly and so imperfectly) to apply the law as it is...not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
Democrats that have come to reject originalism might as well reject the Constitution itself. The concept of a “living” or “evolving” Constitution is merely convenient for progressives that view social progress as an ends justified by any means. It is their method to insist on a litmus test for Supreme Court nominees to insure them of the preservation of their policy victories. They are facing political pressure to reject Gorsuch’s confirmation, but it’s pressure against common sense. Republicans owe it to the American people to fight on the common sense of originalism in order to revitalize the Constitution and the principles it embodies.
You can follow the author on Twitter @CACoreyU
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