This column by ACRU Senior Fellow and Policy Board member J. Kenneth Blackwell was published February 10, 2017 by American Thinker.
If you listen to the Democrats, they claim that President Donald Trump is out to wreck the U.S. government. But when leaders of the party begun by Thomas Jefferson talk about Supreme Court nominee Neil Gorsuch, they worry that he will affirm the principles held by Jefferson and the other Founding Fathers.
This illustrates why President Trump’s nomination of 49-year-old Neil Gorsuch is a judicial home run. Gorsuch is a fine successor to Antonin Scalia, who unexpectedly died a year ago. Gorsuch, like Scalia, believes that the Constitution actually means something, rather than being a meaningless collection of words to be tortured until they confess to the desired result.
Senate Democratic leader Chuck Schumer announced his opposition to Gorsuch, who was unanimously approved for the Circuit Court of Appeals a decade ago, without even assessing the judge’s record. How the latter ruled simply didn’t matter. Anyone other than a liberal activist bent on amending the Constitution via judicial decision was unacceptable.
Of course, the Democrats prefer not to admit that they want judges who act like legislators. So some Democrats instead are complaining that the Republicans “stole” the Court seat. How? By refusing to approve President Barack Obama’s nominee last year.
Senate Majority Leader Mitch McConnell made the obvious point that there was an election upcoming. It made no sense to stage a nomination fight in the middle of a highly partisan political campaign. Rather, the American people should vote on whom they wanted making judicial appointments.
If the Democrats believed that voters stood by them, they would have made the nomination an election issue. However, President Obama gave up early and in effect dropped the appointment. His Senate allies barely mentioned the issue.
And they were smart to do so. The court seat was not theirs. It was not the Republicans’, either. It was the people’s seat, and Americans knew that.
And they decided that Donald Trump would fill the Court vacancy.
There really was no choice. During the campaign, Hillary Clinton stayed mum on her judicial plans. After all, she didn’t want to admit that she’d follow in the footsteps of past liberals and choose judges determined to impose their leftist views on the rest of us.
In contrast, candidate Trump provided voters with a list of potential nominees, all serious jurists who respect the Constitution as written, rather than frustrated legislators seeking to use the document for social engineering. Neil Gorsuch is such a candidate, which scares Democrats.
But he’s a lot more. In the mold of Scalia, Gorsuch is a fine writer, someone well able to articulate “originalist” principles in interpreting the Constitution. He can explain to Americans why the misnamed “living Constitution” actually is a dead document, allowing judges to turn preferences into law.
Moreover, Gorsuch has a winning personal style more likely to persuade fellow Court members. The irascible Scalia became a conservative icon with his “take no prisoners” opinions. Justice Gorsuch will be less entertaining but more winsome. That might mean more 5-4 rulings on the conservative side.
There’s something more. Democrats mercilessly badgered Chief Justice John Roberts and other conservative members before the Obamacare ruling, demanding that the justices respect the will of the president and Congress. Now Democrats are insisting that the next high court member show his independence from the Republican-dominated political branches.
Gorsuch has done so. His rulings demonstrate special appreciation for freedom of religion and the press. He has treated the structure of government as another feature designed to protect our liberties. He has shown that he doesn’t trust the overarching regulatory state. And he wants people to have fair warning before going to jail, interpreting criminal laws narrowly.
His forays into the policy realm also show an appreciation for federalism. A quarter-century ago, he co-authored a study backing the constitutionality of state voters imposing term limits on their congressmen. The Supreme Court disagreed by a 5-4 vote. We would have had a very different government today had his views prevailed.
Finally, there’s an intangible point. Justice Anthony Kennedy is 80 and reportedly considering retirement. Gorsuch was one of his clerks. By choosing someone so well qualified who worked for Kennedy, the president is signaling to Kennedy that the president can be trusted to choose a successor. That would allow President Trump to edge the Court to the right, with potentially lasting impact.
People who complain about the president’s tweets miss the substantive transformation of Washington he has begun. The Gorsuch nomination is another vital promise kept.