Senate Minority Leader Charles Schumer (D-N.Y.) and his Democratic colleagues are voicing concerns that Neil Gorsuch, President Trump’s nominee to the Supreme Court, is not in the “legal mainstream.” In their view, this renders him unfit for the highest court in the land.
Schumer and company are correct that Judge Gorsuch, who was confirmed in 2006 to the 10th Circuit Court of Appeals by a mere voice vote, is outside the prevailing legal orthodoxy.
{mosads}The modern bench and bar idealize the mythical Judge Hercules conjured by liberal jurisprudence scholar Ronald Dworkin in his influential book “Law’s Empire.” Judge Hercules, according to Dworkin, employs a creative interpretation of the law that eschews original intent.
Instead, he searches for core principles that must be balanced in a way to shed the best light on present practice. These principles are grounded in morality, as determined by Judge Hercules, and applied to the case at hand.
For Judge Gorsuch, unlike Judge Hercules, original intent is a proper tool to use in interpreting the law. In the early 1990s, when states were imposing term limits on their congressional delegations, Gorsuch defended those efforts.
His analysis started with the history of the U.S. Constitution and “the Framers’ intentions.” Based on the text and history, he concluded that the Constitution, which did not specifically forbid term limits, left the matter to the states.
He advised the courts to stay out of the term-limits debate and to instead allow the people of the states to decide the question through the ballot box.
Unfortunately, the Supreme Court did take up the issue and stripped the states of the power to impose a rotation in office when it decided U.S. Term Limits, Inc. v. Thornton (1995).
The preference for the ballot box over the courthouse — a concept condemned by Judge Hercules — is a theme running through Judge Gorsuch’s thought. While in private practice in the mid-2000s, he wrote critically about the left’s “overweening addiction to the courtroom as the place to debate social policy.”
By making public policy a “constitutional issue,” Judge Gorsuch observed, issues become an all-or-nothing battle, with no room for democratic compromise.
He also saw that constitutionalizing every question destroys the ability of smaller units of government to act as “real-world laboratories in which ideas can be assessed on the results they produce.”
Rather than admiring activist judges such as Earl Warren or William Brennan, Judge Gorsuch prefers judicial minimalists like Justice Byron White, for whom he clerked as a young lawyer.
He has been especially laudatory of Justice White’s “confidence in the people’s elected representatives, rather than the unelected judiciary, to solve society’s problems.”
Justice White, who was appointed by former President John F. Kennedy, opposed some of the court’s most aggressive policy decisions, such as Roe v. Wade (1973) and Miranda v. Arizona (1966). A jurist who prefers elections to judicial decisions would have no chance of being nominated by a Democratic president today.
When appearing before the Senate in 2006 to be confirmed to the 10th Circuit Court of Appeals, Judge Gorsuch rejected Hercules’s disdain for a jurisprudence that simply applies existing law to the facts of a case.
Judge Gorsuch told the Senate that aspirants to judicial office must “put aside their personal politics and preferences to decide the case and to follow the law and not try to make it.” Such an approach, for a Hercules disciple, takes all the fun and purpose out of wearing the black robe.
As a man outside the legal mainstream, Neil Gorsuch is a needed addition to a Supreme Court that is too often engrossed with its power and authority. Confirmation will be a fight, but this herculean battle will be well worth the effort.
William J. Watkins, Jr. is a research fellow at the Independent Institute and the author of “Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.”
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