Tag: Neil Gorsuch

Posted on

nothing like the originalism

[Today’s post is from a guest contributor. Meet articulate brother #1…]

 

Last week, the United States Senate confirmed Neil Gorsuch as the newest member of the Supreme Court. I am a fan of Gorsuch because he adheres to the judicial philosophy of originalism. What exactly does originalism mean?

Some people view judges as having the ultimate say in what our laws should be. That is not what the founders of our country intended. The judicial branch is just one of three coequal branches of government. As we all remember from elementary school, the legislative branch makes the laws, the executive branch administers the law, and the judicial branch interprets the law. Plain and simple, it is not the courts’ responsibility to make law, nor should they make law.

Originalists like Gorsuch (and me) believe that the proper way to interpret law is to ascertain its original meaning, or in other words, what those who wrote the law were thinking when it was passed. If the text of a law is silent on an issue, it is not up a judge to determine what it should say. That is up to the legislature.

Unfortunately, not all judges are originalists. Many are judicial activists who allow their personal opinions to influence their decisions. Instead of following the text of the law and allowing it to lead them to a conclusion, they choose the outcome they want and then twist words into their own desired meaning to get to that outcome.

In a democracy, it is vital that courts, especially the Supreme Court, refrain from making law. Because justices aren’t elected and have lifetime tenure, we can’t hold them accountable if they make laws we don’t like. If we don’t like laws that legislators make (or if they won’t pass laws that we want), we can get new legislators.

An egregious example of judicial activism was a 1965 case called Griswold vs. Connecticut. The state of Connecticut had a law on the books at the time that prohibited the use of contraceptives. Now I think most of us would agree that is a stupid law, but here’s the thing: if Ms. Griswold thought it was a stupid law, she should have lobbied her legislature to repeal it. That’s the way our system is supposed to work.

Instead, the Supreme Court found that although the Bill of Rights of the U.S. Constitution didn’t explicitly declare a right of marital privacy, there is a “penumbra” of undeclared rights as such and therefore overturned Connecticut’s law as unconstitutional.

Let me be clear… I am not taking issue with the result in this case as unjust. I think the people of Connecticut should be free to use contraceptives as they see fit. The problem is how the courts came to that result. By their very nature, the edges of penumbras are blurry and not well defined. If indeed the Constitution has an enforceable penumbra, what other rights are included? The right to smoke marijuana? The right to own an automatic weapon? The right to assist in a suicide? The right to free health care?

We would all disagree on what’s within the penumbra and what’s outside. If unelected judges determine what’s in or out, that’s not democracy; that’s despotism. Therefore the whole concept of a Constitutional penumbra should be rejected and only the text of existing law should guide judges.

Note that judicial activists can be either liberal or conservative, although there are many more instances of liberal judicial activism in the fifty years since Griswold, for example on abortion and gay marriage. It is inappropriate for judges to allow their personal feelings to influence the outcome of a case, regardless of their political leanings.

It used to be that judicial activists were less conspicuous with their law making. Now that the practice is commonplace and difficult to hide, judges have become overt about their intentions. Just last week, the 7th Circuit Court of Appeal (which is comprised of Wisconsin, Illinois, and Indiana) in Hively vs. Ivy Tech Community College, ruled that the 1964 Civil Rights Act which bars employment discrimination on the basis of sex bars employment discrimination on the basis of sexual orientation as well.

No one believes that the original intent of the 1964 Congress was to include sexual orientation as a protected class in civil rights law. It is striking that Judge Richard Posner acknowledges that fact but brazenly admits that he and his colleagues are making law. For an excellent write-up on Judge Posner’s opinion, see Josh Blackman’s blog at http://joshblackman.com/blog/2017/04/05/judge-posners-judicial-interpretive-updating.

Allow me to reiterate: I don’t think employers should fire someone just because they are gay. Yet, if we the people want a law to prohibit such discrimination, the proper channel to bring about that change is through the legislative branch, not the judicial. Otherwise, we will cease to live under the rule of law and will have embraced the rule of men.

Respectfully…
Pete

Posted on

talking some gorsuch

You know (… and for the record, I know “you know” isn’t the wisest way to begin a blog post…), but you know, I don’t mind talking about politics. Granted, I don’t always like politics, but I don’t mind talking about it. I don’t mind talking about politics or even the icky, sticky, controversial issues, as long, of course, as it’s done respectfully.

What I do mind are (1) the inability to talk about political issues — when ignorance, intolerance, or some other attitude or emotion shuts down all other points of view — and (2) playing politics.

In that context, I’d like to “talk some Gorsuch” today. While I often chuckle with the proper noun sounding more like some foreign, foreign language to me, I instead speak of Neil Gorsuch, the 49 year old federal appellate judge and current candidate for the U.S. Supreme Court.

Before we can “talk some Gorsuch,” we need to address two additional, relevant aspects. First, we need to remember the procedure for affirming a Supreme Court justice. Second, we need to acknowledge the judicial ongoings of the past year.

First, as set forth by the Constitution, candidates for the high court are nominated by the President, with the “Advice and Consent of the Senate” necessary for appointment. Note that the Constitution does not set forth any actual qualifications for service; therefore, the President may nominate the person of his choice.

While not everyone nominated by the President has received a floor vote in the Senate, a nominee’s confirmation may be prolonged via the filibuster. Regardless, the Senate typically confirms the President’s nominee unless there exist serious, outstanding questions and concerns. Ideological differences or dislike for the nominating President are characteristically not enough to deny confirmation. (ie. Pres. Ronald Reagan’s nominee, Justice Anthony Kennedy, was confirmed in ’88 by a vote of 97-0; Pres. Bill Clinton’s nominee, Ruth Bader Ginsberg, was confirmed in ’93 by a vote of 96-3; and the last nominee to be rejected was in 1987.)

Second, remember what happened solely one year ago. Justice Antonin Scalia was considered as “the intellectual anchor for the originalist and textualist position in the Court’s conservative wing,” but he passed away unexpectedly in February of 2016. As is his purview, President Obama then nominated appellate judge Merrick Garland to succeed Scalia. Noting that ideological differences are not disqualifiers, Garland was fully qualified to be the next member of the Supreme Court. Senate Republican leadership denied him both hearings and a vote; they denied Garland’s mere consideration as a justice, proclaiming the next president should make the choice… a president, who would be inaugurated almost a year later.

In the Intramuralist’s semi-humble but honest opinion, the Senate Republican leadership played politics. There were no serious, outstanding concerns regarding Garland.

Now to “talking Gorsuch”…

Like Scalia, Neil Gorsuch is a proponent of textualism and originalism of the Constitution. His fairness and temperament have been raved about from all sides of the proverbial, partisan aisle. By all accounts, Gorsuch is also fully qualified to be the next member of the Supreme Court. The Senate Democratic leadership, however, has decided this week to oppose him.

In the Intramuralist’s again semi-humble but honest opinion, the Senate Democratic leadership is taking its turn, playing politics.

So now the Republican leadership in the Senate plans to change the rules in lowering the threshold for the number of votes necessary for confirmation. Before the immediate grimace at the obvious, partisan rule manipulation, note that the Democratic leadership changed the threshold rules three years ago when they were in the majority. Unfortunately, though, too many of us only jeer or cheer based on who is doing the rule changing. If it was wrong for one, it’s wrong for both, and thus, neither party can claim to be handling the confirmation process with total honesty, integrity, and even semi-humility.

Friends, I have no desire to be harsh; it’s simply that the Intramuralist so desires what is good and true and right. The challenge is when either the Republicans or Democrats play politics, they each engage in something less than that.

Let me be clear:  both parties too often engage in something less than what is good, true, and right.

Wanting something more… wanting something better… always, regardless of party…

Respectfully…
AR