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As many Americans find themselves watching the procedural hearings questioning President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, they may notice an oddity in the questioning and responses. It appears almost as if the two sides are speaking in different languages, or that Gorsuch is avoiding the question many times, by repeating lines similar to “it’s up to legislators to legislate. If they do not, that isn’t my fault.”
What Americans are really seeing, and what is responsible for the apparent break in languages between Gorsuch and the Senate Democrats, is a divide in philosophy on how the two parties view the role of the judicial branch. In fact, it spotlights the fact that the Democrats fundamentally do not understand the purpose of judges, and the decisions they make.
Role of the Judiciary: Brief Intro
The role of the judicial branch of the United States government was expressed in Article III of the US Constitution. We need only to pay attention the term “judicial power” from Section 1 of Article III.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
So since the role of judicial power is vested in “one Supreme Court,” that begs the question: what is “judicial power?”
“Judicial power” is the Authority, both constitutional and legal, given to the courts and its judges (1) to preside over and render judgment on court-worthy cases; (2) to enforce or void statutes and laws when scope or constitutionality are questioned (3) to interpret statutes and laws when disputes arise, as described by LawDictionary.com.
Since the only powers granted to the government, including the judicial branch, are to have been expressed inside the Constitution under Article I, Sec. 8, anything beyond that direction has been arbitrarily placed into judicial purview.
In fact, the concept of “judicial review,” or the ability of the judicial branch to be the final check on the validity of actions by legislative and executive branches, is an independent power from those granted under the Constitution.
Originalism vs. Living Constitution/Loose Constructionism
In his nomination of Judge Neil Gorsuch for the highest court in the land, President Trump mentioned that he wanted someone in the mold of the late Justice Antonin Scalia.
“As close to Scalia [as possible]. I thought Scalia was terrific.” Trump said in an interview with “Fox and Friends” in March 2016.
But what made Scalia so “terrific,” and qualified enough to set the characterization for the next Supreme Court Justice in the President’s eyes?
In short, it simply came down to how the late Scalia viewed his role as a jurist. He believed in a textualist, and what has been called an “originalist,” view of the United States’ main guiding document, the Constitution. Scalia famously explained his views this way:
“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
The Federalist Society, another large proponent of originalism in the judicial sphere, and an organization with which Judge Gorsuch talks about with much admiration, explains the philosophy as understanding that the Constitution’s text was fixed when each provision was framed and ratified.
Contrast this philosophy with the ideas behind a “living” Constitution, or loose constructionism, which argues that the Constitution has the properties of an animate being in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases — a more commonplace and easily abused thought process.
The loose constructionist theory, though much more commonplace in today’s government, has a real susceptibility to what is known as “judicial activism,” or the process of making court rulings partially or fully based on the judge’s political or personal considerations, rather than existing laws.
This judicial activism can then lead to an erosion of impartiality within the judiciary, as well as circumstances like a battle over Supreme Court nominations to “tip the balance of the court” based on political philosophy.
Gorsuch vs. Senate Democrats
Examining the hearings and interrogations of Judge Neil Gorsuch, specifically from the Senate Judiciary Committee Democrats (moreso because Republicans are more inline with originalism, even if they are judicial activists), the divide is clear: on one side is Gorsuch, the self-proclaimed practitioner of originalism; on the other are Democrats who believe that the Constitution is living and breathing, subject to the context of current day happenings. This helps to explain why, as the hearing plays on and more questions are asked, the two sides do not understand each other.
The Democrats, framing their questions around their beliefs of how judicial rulings should be made, out themselves as judicial activists, and consequently out the flaws of loose constructionism.
Take for example Sen. Dianne Feinstein (D-CA), who in her opening statement called originalism “troubling,” and said that she believes the Constitution is a “living document intended to evolve as our Country evolves.” In her questioning of Gorsuch, Feinstein focused on political opinion, rather than the law, exposing her worry of the “evolution” of the US Constitution away from her preferred “judicial activism.”
Feinstein began: “Do you agree with that statement, (referring to Justice Antonin Scalia’s opinion in District of Columbia v. Heller) that under the Second Amendment weapons most useful in military service, M16 rifles, and the like may be banned”
Gorsuch: “Senator, Heller [District of Columbia v. Heller] makes clear the standard that we judges are supposed to apply. The question is whether it is a gun in common use for self-defense, and that may be subject to reasonable regulation. That is the test as I understand it. There is lots of ongoing litigation about which weapons qualify under those standards. And I can’t prejudge that litigation.”
Feinstein: “No, I am just asking you do you agree with his [Scalia’s] statement, yes or no?”
Gorsuch: “Are the statements out of the Heller decision from the United States?”
Feinstein: “Justice Scalia’s statement…”
Gorsuch: “Well whatever is in Heller, is the law and I follow the law.”
Feinstein: “So you agree with it?”
Gorsuch: “Well it’s not a matter of agreeing or disagreeing, Senator, respectfully, it’s a matter of it being the law. And my job is to apply and enforce the law.”
Feinstein: “Alright, fair enough.”
This exchange is just one of many examples of the flawed contention from the Democrats toward Judge Gorsuch during his testimony. But what this shows about the Democrats is that they are inherently worried about Gorsuch’s opinions on political issues, because their ideas of judicial action allows for supposedly impartial judges to become a second wing of the legislative branch. This effectively makes judges unelected and longstanding bearers of the political paradigm (or in other words, politicians).
The line of questioning and worry about political ideas inherently uncovers the Democrats’ facade of wanting impartial judges to rule, and shows that loose constructionism is really a farce for judicial activism. Otherwise, the impartiality shown by Gorsuch would be welcomed with open arms as the best case scenario for true justice.
The Impartiality of Neil Gorsuch:
Conclusion: Democrats Don’t Understand the Role of Judges
Looking at the worry over a perceived 5-4 split of “conservatives” to “liberals” on the Supreme Court should Gorsuch be confirmed, it is obvious that the Senate Democrats fundamentally do not understand that the role of a jurist, or enumerated rights as proposed in Article I, Sec. 8 of the Constitution.
A jurist should be someone who patient, has an open-mind, and uses firmness in their tact. Someone who can show understanding, not just of legal precedent, but of those affected by rulings as well. Most of all, they should be completely impartial to the application of law, affected by neither politick, nor pressure.
Based on the 2 days of hearings thus far, and the tactics used against him, it is hard to argue that Judge Neil Gorsuch is not the man for the job. After all, Gorsuch was the one who said “A judge who likes every outcome he reaches is very likely a bad judge…stretching for results he prefers rather than those the law demands.”
The late Justice Scalia had it right when he said, “A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”
I look forward to the accountability, and correct application that will be brought to the bench should Gorsuch be confirmed. And I suspect that the American people will see him hold Democrats, and Republicans to the one document from which his jurisprudence is derived, the Constitution of the United States of America.