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Judge Gorsuch’s nomination one year after the passing of Justice Scalia

by | Feb 13, 2017

By Dave Andrusko

Supreme Court nominee Judge Neil Gorsuch

Supreme Court nominee Judge Neil Gorsuch

Had I not ran across Richard Wolf’s analysis in USA Today, I would not have known that today is the one-year anniversary of the death of the great Supreme Court justice Antonin Scalia.

The purpose of Wolf’s column was to compare and contrast Justice Scalia with the federal appeals court judge pro-life President Donald Trump has nominated to take his place: Judge Neil Gorsuch.

For us, Scalia will always be remembered for his scintillating dissents. When pro-lifers read through so many Supreme Court decisions on abortion, decisions whose contempt for state legislatures was matched only by their indifference to the fate of unborn children, we could count on Justice Scalia to cut through the dithering and the deception and the duplicity.

Unlike many of his colleagues, he really did understand there are three branches of government and that the Supreme Court ought to pay appropriate deference to men and women elected by the people. Justice Scalia’s withering critiques of untethered judicial activism will be read by law students for generations to come.

Wolf begins with a 1989 Scalia speech that “made quite an impression on a first-year law student from Colorado named Neil Gorsuch.” (The following underlining is mine.)

Scalia spoke on “The Rule of Law as a Law of Rules,” a legal philosophy in which judges limit their discretion by adhering to the letter of the Constitution, laws and court precedents.

“Limit their discretion”–not the first thought that comes to mine watching judges in general, justice in particular, practice their craft. And, of course, the pre-eminent example of judicial policy-making dressed up in “penumbras” and “emanations” is Roe v. Wade.

Wolf makes clear that Judge Gorsuch is not a “clone” of Justice Scalia. (Who would want him to be?) They are, rather, “soul mates.”

Wolf doesn’t reference a speech Judge Gorsuch delivered just after Justice Scalia’s passing. In it he explained and defended the pivotal distinction between legislating and judging:

I want to … suggest that perhaps the great project of Justice Scalia’s 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 be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

Again, Justice Blackmun’s helter skelter approach in Roe (and its companion case, Doe v. Bolton) was the very antithesis . Blackmun was convinced he knew better, that he knew the future direction which (with his assistance) society would take.

Back to Wolf’s story which paints a very, very flattering profile of Judge Gorsuch. He also is very generous to Justice Scalia’s enormous legacy and ongoing influence, combining these sentiments in the following sentence: “Ed Whelan, a former Scalia law clerk and president of the conservative Ethics and Public Policy Center, says the fact that Gorsuch’s originalism and textualism are widely regarded as mainstream today is ‘a testament to Scalia’s legacy.’”

Final thought. Wolf quotes Michael McConnell, who served alongside Judge Gorsuch on the 10th Circuit Court of Appeals before becoming director of the Constitutional Law Center at Stanford Law School: “He is unfailingly charming and collegial and will try to build bridges.”

His superior intellect, Gorsuch’s brilliance in writing opinions, his “civility and courtesy” (as one friend told Wolf), and his deep devotion to interpreting the law, not making it–no wonder pro-abortion Democrats are flailing in their campaign to undermine his nomination.

Categories: Supreme Court