Posted on 02/01/2017 11:56:09 AM PST by SeekAndFind
On the Saturday afternoon last February when he received word of Justice Scalias death, Neil M. Gorsuch immediately lost [his] breath and couldnt see . . . for the tears.
In his grief over the death of a justice he deeply admired and emulated, Judge Gorsuch could hardly have imagined the series of events that would lead to his being selected today to fill the Scalia vacancy. And while he has rightly recognized that no one could ever replace Justice Scalia, there are strong reasons to expect Justice Gorsuch to be an eminently worthy successor to the great justice.
Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.
Gorsuchs judicial outlook is reflected in his beautiful speech (text and video) celebrating and embracing Justice Scalias traditional understanding of the judicial role and his originalist methodology:
Perhaps the great project of Justice Scalias career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to benot to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In that speech, Gorsuch acknowledges that Justice Scalias project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner. He explains why he rejects those critics and instead sides with Justice Scalia in believing that an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function. The Constitution itself carefully separates the legislative and judicial powers. Whereas the legislative power is the power to prescribe new rules of general applicability for the future, the judicial power is a means for resolving disputes about what existing law is and how it applies to discrete cases and controversies. This separation of powers is among the most important liberty-protecting devices of the constitutional design. Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes. Indeed, the very idea of self-government would seem to wither to the point of pointlessness.
As Gorsuch put it (in Cordova v. City of Albuquerque), the Constitution isnt some inkblot on which litigants may project their hopes and dreams . . . , but a carefully drafted text judges are charged with applying according to its original public meaning (emphasis added). In his one foray as a National Review Online contributor, in 2005 (before he took the bench), Gorsuch lamented that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.
Gorsuchs Judicial Record, in Brief
At 49 years of age, Gorsuch has already served for more than a decade on the U.S. Court of Appeals for the Tenth Circuit, which reviews decisions of the federal district courts in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. His judicial record (which I am detailing more extensively in a series of posts on NROs Bench Memos blog) is remarkably impressive.
On issues of religious liberty, Gorsuch has an especially strong record. In 2013, he determined that Hobby Lobby was entitled under the federal Religious Freedom Restoration Act to relief from the HHS Obamacare mandate that would have required it to provide its employees insurance coverage for abortifacient drugs and devices. (By a 54 vote, the Supreme Court ruled in favor of Hobby Lobby in 2014.) In 2015, he objected vigorously to a Tenth Circuit ruling that held that the massive fines that the Obama administration threatened to impose on the Little Sisters of the Poor for refusing to facilitate insurance coverage for contraceptives and abortifacients did not seriously implicate their religious liberty. (In 2016, the Supreme Court sent the case back to the Tenth Circuit to enable the government to work out a more sensible approach.)
Gorsuch has also fought against a hyper-expansive reading of the establishment clause that would exclude religion from the public square. In 2009 (in Green v. Haskell County Board of Commissioners), he disputed a panel decision that ruled that a countys Ten Commandments display was unconstitutional. He memorably complained that the panels hypothetical reasonable observer whose imagined perceptions dictate what does and does not violate the establishment clause was not someone who got things right but was instead an admittedly unreasonable observer who just gets things wrong because, the panel tells us, our observer is from a small town, where such errors cannot be helped. In another case (American Atheists, Inc. v. Davenport), he disagreed with a panel ruling that Utah violated the establishment clause when it allowed the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths. The Tenth Circuits reasonable observer, in his view, continues to be biased, replete with foibles, and prone to mistake (as well as a bit of a hot-rodder).
Gorsuch has earned special acclaim for his insights on administrative law and separation of powers. In an opinion last August (Gutierrez-Brizuela v. Lynch), he argued that the Supreme Courts precedents on deference to reasonable agency interpretations of law permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers design. He called for the Supreme Court to reconsider whether the so-called Chevron doctrine of deference is sound. In another recent opinion (United States v. Nichols), he said that Congress had gone too far in delegating power to an agency to decide what conduct is criminal: For Congress to effectively pass off to the prosecutor the job of defining the very crime he is responsible for enforcing is by any plausible measure . . . a delegation run riot, a result inimical to the peoples liberty and our constitutional design.
Gorsuch has had only one case involving the matter of abortion (Planned Parenthood of Utah v. Herbert). Last October, he dissented strenuously when the Tenth Circuit refused to reconsider a panel ruling in favor of Planned Parenthoods Utah affiliate. The panel had granted Planned Parenthood a preliminary injunction against the Utah governors directive to state agencies to stop acting as intermediaries for federal funds flowing to Planned Parenthood. Gorsuch faulted the panel for failing to accord the appropriate degree of deference to the district courts factual findings and for making its own bizarre inferences about the governors reasons for acting.
In a case involving a firearms conviction (United States v. Games-Perez), Gorsuch protested that people sit in prison because our circuits case law allows the government to put them there without proving a statutorily specified element of the charged crime. In support of his interpretation of the statute, Gorsuch invoked, quoting Justice Thomas, the long tradition of widespread lawful gun ownership by private individuals in this country and the Supreme Courts recognition that the Second Amendment protects an individuals right to own firearms and may not be infringed lightly.
On criminal law and procedure, Gorsuch has a strong and balanced record. He has protected the privacy rights of Americans while respecting the proper powers of the police. Reversing a lower court, he concluded that when law-enforcement officers open and examine private e-mails, they are engaging in a search governed by the Fourth Amendment. He has argued, in dissent, that a homeowner who posted No Trespassing signs all over her property didnt consent to police entering her property and knocking on her front door. But he has also explained that the Fourth Amendment must be applied in a manner that takes a realistic view of human capacities and limitations.
Gorsuch has complained that the overcriminalization of so many facets of daily life [means] that prosecutors can almost choose their targets with impunity. He has insisted that laws and regulations provide clear notice of what is prohibited, and he has prevented police officers from being held personally liable for conduct that wasnt clearly unlawful.
Rocky Mountain Roots
Neil Gorsuch combines an appealing Rocky Mountain profile with a stellar personal history. He has deep roots in his hometown of Denver and absorbed his work ethic from his family. One of his grandfathers worked his way through law school with a job as a streetcar conductor in Denver. The other grew up in an Irish tenement in Denver and, at the age of eight, began working to support his family as a porter at a train station. Both of his parents were lawyers in Denver. His mother, Anne Gorsuch Burford, was one of the first women to work as a prosecutor in Denver, was twice elected to the Colorado legislature, and was President Reagans first head of the EPA.
In his youth, Gorsuch worked a variety of everyday jobs: shoveling snow, moving furniture, working the front desk at a Howard Johnsons hotel. He also developed a lifelong love of the outdoors.
Gorsuch has a distinguished academic pedigree, with an undergraduate degree from Columbia, a J.D. from Harvard law school (in the same 1991 class as Barack Obama), and a doctorate (as a Marshall Scholar) from Oxford. In his courageous book The Future of Assisted Suicide and Euthanasia, he propounds the principles that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.
After law school, Gorsuch was hired as a law clerk by D.C. Circuit judge David Sentelle and then by Supreme Court justice, and Colorado legend, Byron R. White. Because Justice White retired shortly before Gorsuchs clerkship began, Gorsuch, in addition to assisting White, doubled as a clerk for Justice Anthony M. Kennedy.
After his clerkships, Gorsuch joined a D.C. law firm, where he quickly became a partner and litigated for a decade. In 2005, he left private practice to serve as deputy associate attorney general in the U.S. Department of Justice.
With the support of both Colorado senators including Democrat Ken Salazar President Bush nominated Gorsuch to a Tenth Circuit judgeship in 2006. The American Bar Association judicial-selection panel unanimously gave Gorsuch its highest rating of well-qualified. The Senate confirmed him unanimously, by voice vote, barely two months after his nomination.
Judge Gorsuchs path to confirmation this time to become Justice Gorsuch and a fit successor to Justice Scalia should again be smooth and swift.
Ed Whelan, president of the Ethics and Public Policy Center, is a former law clerk to Justice Scalia. He is a regular contributor to National Review Onlines Bench Memos, where he will be blogging extensively about the Gorsuch nomination.
RE: Rubio and Kasich would have been disasters.
Amnesty would have been their first agenda item.
_______________________
I did not say “President”, I said “Candidate”.
They could both have beaten Hillary I think. Whether they’d make good Presidents is another matter.
But let’s stop this discussion. This thread is about Neil Gorsuch and I’d like to keep it that way.
Over the past decade, the Supreme Court has struck down an unprecedented number of federal statutes, most notably several designed to protect the civil rights of Americans, as beyond Congress’s power under Section 5 of the Fourteenth Amendment, for example, Flores V. City of Boerne, 117 S. Ct. 2157 (1997), Kimel v Florida Board of Regents, 120 S. Ct. 631 (2000), and Board of Trustees v. Garrett, 19 S. Ct. 2240 (1999). The Supreme Court has also recently struck down statutes as being outside the authority granted to Congress by the Commerce Clause, such as in the case of U.S. v. Lopez, 115 S. Ct. 1624 ((1995) or U.S. v. Morrison, 120 S. Ct. 1740 (2000). I am hopeful that the Court’s recent decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005) signals a turn away from the diminishing of the authority of Congress to legislate to protect the American people.
In light of your advocacy for judicial restraint and deference to Congress, what is your understanding of the scope of congressional power under Article I of the Constitution, in particular, the Commerce Clause, and under Section 5 of the Fourteenth Amendment?
Response: As the question indicates, on the of the Court’s most recent pronouncements with respect to the Commerce Clause came last year in Gonzales v. Raich. There the Court made clear that “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established.” The precedents of the Supreme Court addressing the Fourteenth Amendment have likewise repeatedly demonstrated that Congress’s authority to enact legislation pursuant to Section 5 is very broad. If confirmed, I would enforce these Supreme Court rulings fully in cases that may come before me, applying the same judicial restraint and deference to congressional judgement in these arenas as I would in any other.
2006 confirmation hearing, page 42-43
http://online.wsj.com/public/resources/documents/2016_0131_gorsuch_confirmation.pdf
The Supreme Court has repeatedly said Cruz is naturalized.
RE: The Supreme Court has repeatedly said Cruz is naturalized.
Supreme Court of the US? Which decision was that?
Rogers v. Bellei, 401 U.S. 815 (1971)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
"The church even encourages members to join its anti-gun lobbying campaign, last year it had the 49 Bells Project to bring attention to gun violence."
This is not good news!.
Regards,
GtG
Let’s stay on the topic of Gorsuch.
It could be a matter of proximity to or ease of travel from his home. That should be looked into.
RE: Lets stay on the topic of Gorsuch.
Yes, I agree.
RE: This is not good news!.
On the other hand, I know of many fine Christians who have attended liberal churches OUT OF TRADITION and HABIT. Perhaps they grew up in that church and have know those who attended the church for a long time.
Also, some feel that by their presence, they can slowly but surely turn the leftward leaning church BACK by their testimony and presence.
Here’s the question — Do we determine how he will decide based on the church he attends, or do we determine how he will decide BASED ON HIS PAST DECISIONS?
Just because his pastor is liberal, do we then conclude that he agrees with his pastor?
Between what his pastor does and what he himself does, I’ll take the latter as a better indicator.
Is Commerce Clause abuse an issue?
The National Review is globalist trying to find their way back home to America-Americans.
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