“A judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
—Judge Neil Gorsuch
The battle has arrived. Are you ready for it?
This week the full Senate is expected to consider Neil Gorsuch’s nomination to the United States Supreme Court. Here comes the “brutal, partisan showdown” the New York Times (and everyone else) predicted when President Donald Trump nominated Judge Gorsuch back in January.
Never mind that even liberal commentators concede that Judge Gorsuch is qualified to serve—in fact, you routinely hear them use phrases like “extremely qualified,” “eminently qualified,” and “totally, completely qualified.” No, qualifications don’t matter anymore, apparently.
As the battle heats up, you will read and hear a lot about Senate rules, partisanship in Washington, filibusters, outside activist groups, the “nuclear option,” and more. All this is important, don’t get us wrong. Whether the Senate confirms this nominee, and if so how it does so, will have far-reaching implications.
But lost amid all the “SHOWDOWN IN WASHINGTON!” drama is the fundamental question of how a Supreme Court justice, or any judge, should approach his or her job. It turns out that Judge Gorsuch has offered thoughts on this subject well worth reading and reflecting on.
The Judge Needs to Think Critically, Not Fashionably
Many news reports have noted Judge Gorsuch’s talent for writing clear, entertaining opinions—an all-too-rare ability in a field marred by dry, opaque decisions. It’s probably no coincidence that Gorsuch honed his writing talents as an undergraduate at Columbia University, where he cofounded a student newspaper as part of the Collegiate Network, the Intercollegiate Studies Institute’s student journalism program. The Collegiate Network publication he helped start and then led in the pivotal early years was known as The Federalist Paper (later The Federalist, or simply The Fed).
Experience with the Collegiate Network has helped many young people become independent thinkers who can clearly communicate their ideas to a broad audience. Like Judge Gorsuch, many alumni have gone on to be prominent and respected voices, from New York Times columnist Ross Douthat to radio talk show host Laura Ingraham to Washington Post columnist Marc Thiessen.
If more judges honed their skills as student journalists, reading opinions wouldn’t require heavy doses of caffeine and frequent trips to a legal dictionary.
Judge Gorsuch shares many commonalities with the late Antonin Scalia, the justice whose seat he seeks to fill. One of them is an ISI pedigree: Justice Scalia said that as a young professor he “first began to take part in the ISI program of trying to stimulate the intellectual debate in the nation’s capital.” Judge Gorsuch is no stranger to the intellectual life; in fact, it’s his sharp thinking that makes him such a fair judge.
Gorsuch on the Role of Judges
So what does this sharp thinker and talented writer say about how judges should operate?
The quotation that leads off this article comes from Judge Gorsuch’s dissent in the case of A. M. v. Holmes (2016). The case involved a thirteen-year-old student who was arrested after he disrupted gym class with fake burps. The student’s family sued. Gorsuch’s fellow judges on the Tenth Circuit ruled that the police reasonably applied the law by marching the child off in handcuffs. In his dissent, Gorsuch wrote:
If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.
But after laying out all the reasons he disagreed with his fellow Tenth Circuit judges, Gorsuch proceeded to express his admiration for his colleagues. Why? Because they had upheld their duty as judges. Quoting the famous description of the law by Mr. Bumble in Charles Dickens’s Oliver Twist, Gorsuch concluded:
Often enough the law can be “a ass—a idiot”—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.
Interpreting statutory language is one thing. How about interpreting the Constitution?
As USA Today reported in a helpful summary, Gorsuch in his opinions “has consistently said that judges should interpret the Constitution based on its original meaning, and not use it as a vehicle for broad challenges to government decisions.”
For example, in a 2012 opinion, Judge Gorsuch wrote, “Caution is always warranted when venturing down the road of deciding a weighty question of first impression and recognizing a previously unrecognized constitutional right.” In a 2009 dissent, he expressed concerns about what he saw as clear judicial overreach: “It’s not every day we overturn a state jury verdict for first-degree murder when the defendant admits he received a fair trial and no one questions that his conviction is supported by overwhelming evidence. It’s not every day we exacerbate a split of authority over the recognition of a new constitutional right, and do so despite warning signs from the Supreme Court against our course.”
In a concurring opinion in a 2016 case, Gorsuch laid out his “originalist” perspective in clear terms:
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. If a party wishes to claim a constitutional right, it is incumbent on him to tell us where it lies, not to assume or stipulate with the other side that it must be in there someplace.
During his Senate confirmation hearings last month, Gorsuch dismissed concerns that originalism represented some sort of antediluvian mind-set. “No one is looking to return us to horse and buggy days,” he said. “We’re trying to interpret the law faithfully, taking principles that are enduring and a Constitution that was meant to last ages and apply it and interpret it to today’s problems.”
Now Over to You
Those who stand against Judge Gorsuch’s confirmation are unlikely to dwell on his obvious qualifications for the Supreme Court or to do a deep dive into his Tenth Circuit opinions (a useful roundup of which you can find at SCOTUSblog). But you can familiarize yourself with Gorsuch’s perspective. Do his views on the role of judges and on how to interpret the Constitution match up with yours? What should we look for in a judge? These questions are always worth careful consideration.
In the meantime, the partisan fight is on.