Cast­ing Gor­such as a boogey­man

The Washington Post Sunday - - SUNDAY OPINION - KATH­LEEN PARKER kath­leen­parker@wash­

To re­view the left’s re­ac­tion to Supreme Court nom­i­nee Neil Gor­such is to in­fer he’s the spawn of Drac­ula — a cruel and blood­less beast who shrinks from the light and plays havoc with his­tory.

Among the many dis­tor­tions: Gor­such is against clean wa­ter, con­sumers, women’s health, dy­ing peo­ple and work­ers. The lib­eral Al­liance for Jus­tice de­clares him worse in some ways than Jus­tice An­tonin Scalia, whose seat Gor­such would as­sume if con­firmed. Peo­ple for the Amer­i­can Way claims he’s an ide­o­logue “far out­side of the ju­di­cial main­stream who has a record of warp­ing the law to serve the pow­er­ful over the in­ter­ests and con­sti­tu­tional rights of or­di­nary Amer­i­cans.”

Or, one could ar­gue that he is coura­geous in pro­tect­ing the peo­ple and the Con­sti­tu­tion by ad­her­ing to the text and orig­i­nal in­tent with­out con­cern for his pop­u­lar­ity.

As back­ground, Gor­such has served since 2006 on the Den­ver­based U.S. Court of Ap­peals for the 10th Cir­cuit, where his rep­u­ta­tion as a bril­liant ju­rist and writer gained na­tional at­ten­tion. A grad­u­ate of Har­vard Law School, he also earned a doc­tor­ate from Ox­ford Univer­sity in le­gal phi­los­o­phy. His dis­ser­ta­tion was on eu­thana­sia, which has raised flags among those fight­ing for death-with-dig­nity laws. If Gor­such op­poses as­sisted sui­cide for the ter­mi­nally ill, goes the think­ing, then he must also op­pose a woman’s right to ter­mi­nate a preg­nancy.

Gor­such has said that hu­man life has in­trin­sic value and that no other hu­man has a right to de­stroy an­other’s, which seems on its face to be man­i­fest. He has never writ­ten or ruled specif­i­cally on abor­tion, so this re­mains a hazy cor­rel­a­tive. He is, in­deed, an orig­i­nal­ist, as was Scalia, and his rul­ings might not dif­fer much from his con­ser­va­tive pre­de­ces­sor’s.

Fun­da­men­tal to his ap­proach is the un­der­stand­ing that leg­is­la­tures, and not courts, should cre­ate laws. This po­si­tion also ex­tends to ad­min­is­tra­tors and bu­reau­crats. Lib­er­als have some­times pre­ferred to fash­ion law through the courts, rather than nav­i­gate the leg­isla­tive process, which is bur­den­some, stub­born and slow. It’s so much eas­ier to cre­ate law in the courts and let peo­ple adapt.

This view would seem al­most Trumpian but for his se­lec­tion of Gor­such, who is of the op­po­site in­cli­na­tion. Af­ter two dizzy­ing weeks of con­found­ing (Mex­ico), out­ra­geous (travel ban) and ab­surd (Aus­tralia) first acts, Trump brought a wel­come pause in nam­ing Gor­such. Yes, it was show­man­ship — prime time and all that — but, se­ri­ously, who cares? It was far and away the most pres­i­den­tial per­for­mance we’ve thus far wit­nessed, not­with­stand­ing Trump’s nearly sep­a­rat­ing Gor­such’s arm from its socket dur­ing a hand­shake.

Should Gor­such be ap­proved, the court’s com­po­si­tion ob­vi­ously doesn’t re­ally change. The bal­ance would re­main the same, with Jus­tice An­thony M. Kennedy, for whom Gor­such clerked, as the swing vote. It’s the next seat for which Democrats should save their fire, lest they be viewed as in­tractable as the Repub­li­cans were the past eight years. No one wins this war.

Democrats are en­ti­tled to their in­dig­na­tion over Repub­li­cans’ re­fusal to con­sider Mer­rick Gar­land, Pres­i­dent Barack Obama’s choice for Scalia’s seat. But their en­er­gies will be spent for naught — and they could do far worse. Be­sides, there’s no real know­ing how a jus­tice will rule. Philo­soph­i­cal tem­per­a­ment is a fac­tor, but it’s not the only one. In­di­vid­ual cases present facts and cir­cum­stances that can lead to un­ex­pected con­clu­sions. One needn’t look far for ex­am­ples.

Chief Jus­tice John G. Roberts Jr. shocked con­ser­va­tives when he ruled fa­vor­ably on the Af­ford­able Care Act, but his de­ci­sion was dou­ble-edged. By de­cid­ing that the penalty in Oba­macare, in­tended for peo­ple who re­fused to buy in­sur­ance, was re­ally a tax, Roberts also ex­posed the dis­hon­esty in the Obama ad­min­is­tra­tion’s pre­sen­ta­tion of the health-care plan. Through­out the leg­isla­tive process, the ad­min­is­tra­tion in­sisted that it was not a tax.

Though cold com­fort to con­ser­va­tives, the rul­ing bol­stered ar­gu­ments that Oba­macare was based on false pre­tenses and the as­sump­tion, as one of the law’s ar­chi­tects later boasted, that peo­ple would be too stupid to know the dif­fer­ence.

The upcoming de­bate should be scin­til­lat­ing the­ater as it strikes at the heart of a judge’s role. Gor­such has made him­self clear on this. In a 2016 con­cur­rence, he wrote: “Ours is the job of in­ter­pret­ing the Con­sti­tu­tion. And that doc­u­ment isn’t some inkblot on which lit­i­gants may project their hopes and dreams for a new and per­fected tort law, but a care­fully drafted text judges are charged with ap­ply­ing ac­cord­ing to its orig­i­nal pub­lic mean­ing.”

I wouldn’t wish on any­one the task of prov­ing that wrong.

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