Ex-Bush AG: Keep politics out of the Supreme Court and confirm Gorsuch

The confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court of the United States has come to a close. From my perspective, there are multiple obvious, and possibly not so obvious, reasons why the Senate should move quickly to confirm him. 

First the obvious.

In accepting the president’s nomination to the court, Judge Gorsuch said, “a judge who likes every outcome he reaches is very likely a bad judge.” This illustrates why he will be a superior Supreme Court justice. He will respect the words of our Constitution and pay appropriate deference to the court’s precedents, as well as consistently interpret the laws passed by Congress according to what the law says, and not based on what he feels the law should say. During his testimony Judge Gorsuch repeatedly affirmed his commitment to the rule of law.

The American Bar Association’s standing committee on the federal judiciary unanimously rated Judge Gorsuch to be “well-qualified” to serve on the court, meaning he will discharge the duties under his oath of office with fidelity to the Constitution and respect for the separation of powers. His qualifications, however, go well beyond just his past public service and acumen as a jurist.

This brings me to what may not be so obvious to those who do not know him. Simply put: Judge Gorsuch is one of the most truly decent human beings I have ever met.

{mosads}It is his character, discipline and courage that make him so remarkable, and in turn exponentially apt for the court. As was evident in the hearing, Judge Gorsuch has a respectful, humble demeanor that would make him a wonderful colleague on any appellate court. That demeanor, however, should not be mistaken for timidity. Judge Gorsuch possesses a ferocious intellect and, if confirmed, he will be very effective when engaging with his fellow justices. Based on my own experience on the bench, I predict he will be well liked and respected by other justices, which in turn will make him a consequential leader on the court.

If Senate Democrats choose to oppose this nomination, it will have to be for reasons other than qualifications.

Senate Democrats have already expressed frustration that Judge Gorsuch has been nominated to the seat left vacant after Senate Republicans failed to provide a hearing to Obama nominee Chief Judge Merrick Garland. Yes, I agree that Judge Garland was well qualified, and I understand why some believe he was treated unfairly. Yes, Judge Garland was innocent and arguably the victim of politics. But Judge Gorsuch is likewise innocent, and he too is well qualified. Must he also be sacrificed on the alter of politics?

It is long past time for members of the Senate to do their job and confirm a ninth justice so that the court is operating at full strength on behalf of the American people.

Democratic senators have also raised concerns about Judge Gorsuch’s work while at the Justice Department, and in particular policies related to the war on terror. Neil Gorsuch deserves credit for his service as a government lawyer and his role in helping former President Bush keep America safe. However, while I and others relied on Neil for advice and counsel, he was not responsible for the policies of the Bush administration, nor was he the lone architect for its legal opinions and conclusions — those represented the cumulative judgment of more senior lawyers, including myself, in the administration. Justice Department lawyers are advocates for the U.S. government and obliged to put forth the best legal arguments in defense of government policy, consistent with the canons of professional ethics and good faith — as would any lawyer. A judge, on the other hand, is required to act as a neutral, hearing both sides of a case with impartiality. 

Finally, Senate Democrats have suggested Judge Gorsuch is outside the judicial mainstream. To the contrary, his remarkable record of being reversed so few times while on the Tenth Circuit confirms he is well within the mainstream. There is also the allegation that Judge Gorsuch favors corporations and the wealthy over the little guy. It is nonsensical to evaluate a judge’s ideology based on winners and losers in the cases before that judge. Rather, Judge Gorsuch should be evaluated based on the methods and principles employed to decide a controversy. When decided properly, equal justice under the law will be achieved in a case every time, irrespective of the winner or loser.

Only a person of extraordinary ability and integrity can properly sit and dispense justice and wisely interpret our laws. In refusing to bow to pressure from Senate Democrats that he explain how he would rule on certain matters, Judge Gorsuch showed restraint and acted in the finest tradition of previous judicial nominees.

I have interviewed and studied hundreds of individuals for appointment to the federal bench, including John Roberts and Samuel Alito. Judge Gorsuch will serve with the same level of distinction and independence as those justices and others. I know of no legitimate reason to oppose Judge Gorsuch’s nomination, and I urge the Senate to confirm this highly qualified, good man without delay.

Alberto R. Gonzales is the former U.S. attorney general and White House counsel in the George W. Bush administration. Presently he is the dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law. @argonzales

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