Thursday, March 23, 2017
Neil Gorsuch EARNS His Supreme Court Seat
A memorable moment of calm enveloped Donald Trump's chaotic, confrontational presidency on Jan. 31 when he introduced Judge Neil Gorsuch as his Supreme Court nominee. Gorsuch appeared so learned and earnest compared to the peripatetic Trump that you had to wonder if someone had mixed up the dance cards.
But no, Trump wanted a conservative judge, and that's what he selected, in the best sense of the phrase. In this week's Senate confirmation hearings, Gorsuch has shown himself to be committed to the principle that judges should rule on the law as written, and apply it equally to all.
Ah, but the real world is messier than a legal scholar's mind. That tension suffused the Senate hearings. Important court cases arise when the law or situation isn't clear-cut. So how, for example, would Gorsuch rule on a crucial issue such as preserving abortion rights?
Like all nominees for the court these days, he wouldn't talk in specifics about cases he might rule on in the future. Republicans are fine with that; they're doing everything possible to guide him to confirmation. But Democrats mistrust Gorsuch, who was named to an appeals court seat by President George W. Bush. They're also angry because they believe this Supreme Court vacancy, created a year ago by the death of Justice Antonin Scalia, should have been filled by Judge Merrick Garland, President Barack Obama's choice. Instead, Senate Republicans stonewalled Garland's nomination.
Democrats' questioning Tuesday and Wednesday was aggressive. But their attempts to trip up Gorsuch, revealing deficiencies that might disqualify him, elicited the opposite: unassailable assurances by Gorsuch that he would decide each case on the merits, based on the law as written, applied to the world as it is today. Democrats struggled to find offense with that judicial philosophy. After each attack, they were forced to move on.
In one back-and-forth Wednesday, Sen. Dianne Feinstein picked at Gorsuch's identity as an originalist, meaning one who reveres the Constitution as written. Her worry is that he is such a literalist conservative in the mold of Scalia that he won't protect citizens from harm unless he can find the exact phrase in the law giving him permission. Her worries span protections for women and minority groups and "the little guy," as she put it. At the top of her list, of course, is preserving Roe v. Wade.
Gorsuch's answer was persuasive: "A good judge starts with precedent and doesn't reinvent the wheel," he said. "So to the extent that there are decisions on those topics — and there are — a good judge respects precedent."
As for being an originalist, while Gorsuch respects the founders, he doesn't want to live in their times. His role, he said, is to "understand what the words on the page mean" and apply them to today. "No one is looking to return us to horse and buggy days," he told Feinstein.
Another Democratic attack came Tuesday from Illinois Sen. Dick Durbin, over Gorsuch's dissent in what's been called "the case of the frozen trucker." Gorsuch said a truck driver dealing with mechanical failure on a 14-degrees-below-zero night could be fired for driving away from his load, even though staying meant endangering his life. The law would protect a driver who refused to operate an unsafe vehicle, but Gorsuch ruled that this driver did operate his rig. He drove off. At the hearings Democrats harassed Gorsuch for being unfeeling, but the judge said his empathy for the driver was beside the point.
Gorsuch then schooled Durbin: My job is to apply the law as written. The law said he would be protected if he refused to operate. By any plain understanding, he operated the vehicle. And if Congress wishes to revise the law — I wrote this: I said it was an unkind decision, it might have been a wrong decision, a bad decision, but my job isn't to write the law, Senator, it's to apply the law. And if Congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, I will be the first in line to enforce it.
This was one case in 2,700 for Gorsuch. He said 97 percent of his decisions were decided unanimously, and he was in the majority 99 percent of the time. Durbin picked an anomaly with the intent of wounding the nominee's candidacy, but in doing so he unintentionally proved Gorsuch's value to the Supreme Court. Here is a judge who knows the law and knows the role of the judiciary: He isn't on the bench to make law, he's there to interpret it faithfully, because the separation of powers among the branches of government serves our democracy. Sometimes the result benefits liberal positions, sometimes conservative. Sometimes, unfortunately, individuals caught up in a legal tangle pay a price. My job isn't to write the law, Senator, it's to apply the law.
That's all we can ask of any justice. Some of Gorsuch's critics think judges should be creative and expansive depending on the political climate — to treat laws differently on a cold night than a warm one. Those critics suggest that they fear Gorsuch won't follow the law, but the opposite is more true: They fear he will. Gorsuch should be confirmed.