Jay Ambrose: Gorsuch wins the day
For a lesson in law and the Constitution and what judges are supposed to do, it would be hard to beat watching the recent TV appearances of the erudite, gentlemanly, down- to- earth Neil Gorsuch. He was on air not to give a collegiate lecture, although has done that, but due to Senate hearings on his qualifications as a Supreme Court justice.
Of course, as someone nominated not by just any Republican president but by one whose name is Donald J. Trump, Gorsuch was subjected to interrogatory vehemence. Additionally, we have had a cluster of self- revelatory Democrats and liberal pundits disclose their anticonstitutional, democracy- trashing belief that it is not the Gorsuchendorsed correct reading of the law that we should want in the court but outcomes going after fat cat interests no matter what.
Gorsuch turned out to be every bit as bright, articulate and incisive as one would expect from someone who was a brilliant law school student at both Harvard and Oxford, a youthful law clerk for a Supreme Court judge, a highly successful lawyer who a became Justice Department official and then a widely praised federal appellate judge. His hundreds of decisions have won him accolades from prestigious groups of bipartisan persuasion, scholars appreciative of his intellectual rigor and even from some liberals immune to ideological inanity.
In making it clear what a judge should do in making a decision, Gorsuch also made it clear what a judge should not do. A judge should not try to write new laws, thus usurping legislative prerogatives. A judge should not decide a case on the basis of anything political, whether it’s ideology or someone’s advantage or disadvantage. A judge should not decide a case in accordance with whether anyone involved is rich or poor, powerful or not powerful or any other feature of personality, circumstance or status. A judge should not even make reference to what he or she would most like to see when all is done.
Instead, he said in straightforward, plain English, a judge should look to the facts, take in the logic and legal points of arguments, and finally trust in the law, its text, what it actually says, and what the public understanding of it was when it was first written. Here is what counts: not some wistful, off- target idea of a possibly suggested principle or a recalculation dependent on modernist thought processes, but the meaning of words on paper.
Gorsuch was not claiming perfection in the exercise of trying to grasp the true meaning of text. His point was that this is the exercise in which judges should engage. Nor did he discount precedent, which he said should carry the day unless it flunks some basic tests. He argued that the Constitution remained valid in today’s world even if we have to understand that technology has refashioned some realities that remain realities. He agreed that judicial decisions should ordinarily confine themselves to the case at hand, no small matter at a time when the court too often ends up dictating major moral matters as the loudest, most powerful part of our government.
The Democrats came after Gorsuch on varied issues, trying to make him look incompetent and worse while making themselves look like petty know- nothings. They have some reason to be upset at Republicans for blocking consideration over the past year of a nomination made by President Barack Obama, but vindictiveness is still not acceptable behavior in the high positions they hold.
The truth is that their preferred version of the court has already done this republic major damage and that what we see in Gorsuch is rescue. What’s at stake is nothing small. It is whether we have rule of law or rule by an appointed, unanswerable few throwing law out the window.