In Feinstein vs. Gorsuch, ‘originalism’ wins
Neil Gorsuch is no Robert Bork – to the great chagrin of the Senate Democrats who are trying to block his confirmation to the U.S. Supreme Court.
Thirty years ago, Senate Democrats derailed Bork’s nomination, claiming the judge’s judicial philosophy of “judicial restraint” was well beyond the mainstream. Today, Democrats are looking for any reason at all to oppose the 10th U.S. Circuit Court judge’s nomination to fill the late Antonin Scalia’s seat.
True, many of our progressives are still bellyaching over Merrick Garland, the D.C. Circuit judge who had the misfortune of being named to the high court in the final year of a lame-duck presidency. That’s politics, friends. The Constitution says the Senate may “advise and consent,” not simply “nod and approve.”
Apart from the sour grapes over Garland, the case against confirming Gorsuch seems to boil down to a sharp difference of opinion about what the Supreme Court is supposed to do.
The best that Democrats on the Senate Judiciary Committee could do is accuse Gorsuch of being a constitutional “originalist.”
Well, yes. Yes, he is. So what?
California’s own senior senator, Dianne Feinstein, illustrated brilliantly this week why the “charge” of originalism is hardly a condemnation, and certainly not a reason to keep Gorsuch off the court.
“I firmly believe that our American Constitution is a living document, intended to evolve as our country evolves,” Feinstein said. “So I am concerned when I hear that Judge Gorsuch is an originalist and strict constructionist.”
Strict constructionist is a pejorative that Democrats often use to invoke the memory of segregation and other social evils. But let’s take a closer look at the charge that Gorsuch is an “originalist.”
Conservatives tend to believe the Constitution should be interpreted as written. They care a great deal about what the text says. They also care about what the document’s framers meant when they wrote things like “the right of the people to keep and bear arms shall not be infringed.”
Judges must sometimes rein in the excesses of the legislative and executive branches when they overstep their constitutional bounds. But who – or what – sets those bounds?
For a liberal senator like Feinstein, the answer depends on time, place and circumstance. But for a conservative, the answer would be informed by something more. It might be history or tradition. For thoughtful jurists like Clarence Thomas and Samuel Alito, it would be the natural law philosophy that informed the Declaration of Independence – the idea that all men are created equal and endowed by their Creator with rights that legitimate government will protect and may never take away.
Feinstein betrayed her utter ignorance of this view when she asked Gorsuch whether his originalist ideas would conflict with the equal protection under the law.
“It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law,” Gorsuch answered. In fact, the framers’ intentions in most cases weren’t secret at all.
“And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.”
Feinstein has criticized Gorsuch for his evasiveness, but the judge’s full answer is a model of clarity.
Feinstein also probed Gorsuch on how his approach to judging would help “the little guy.”
“I’m just looking for something that would indicate that you would give a worker a fair shot,” Feinstein remarked, “maybe something in your background that I don’t know about.”
Gorsuch responded with a dozen cases off the top of his head. But the truth is, judges shouldn’t look out for the “little guys” or the “big guys.” Their concern first and foremost should be justice under the law. Originalism ensures that judges will be guided by fairness, rather than the whims and caprices of day-to-day politics.
Ben Boychuk is managing editor of American Greatness (www.amgreatness.com). He can be contacted at ben@amgreatness.com or on Twitter @benboychuk.
This story was originally published March 23, 2017 at 1:10 PM with the headline "In Feinstein vs. Gorsuch, ‘originalism’ wins."