Hatch Praises Supreme Court Nomination of Judge Neil Gorsuch
WASHINGTON, DC—Senator Orrin G. Hatch, the senior member and former Chairman of the Senate Judiciary Committee, issued the following statement on the President’s nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to serve as an Associate Justice of the Supreme Court of the United States:
[Message clipped] View entire message
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Hatch: Like Scalia, Gorsuch has shown steady devotion to Constitution
http://www.sltrib.com/opinion/4886727-155/hatch-like-scalia-gorsuch-has-shown
On Tuesday, President Donald Trump nominated Colorado federal judge Neil Gorsuch to fill the late Justice Antonin Scalia's seat on the Supreme Court. The president has made an inspired choice. Utahns should take heart that the man who will replace Scalia will be just as committed to the Constitution as his predecessor.
Time and again, Gorsuch has shown that he understands the proper role of a judge under our Constitution and believes that lawmaking authority resides with the people and their elected representatives, not unelected judges.
For years, liberals and conservatives have debated whether judges should seek to interpret laws in line with what the lawmakers who wrote and passed the laws originally intended or should instead substitute their own views. Scalia cautioned against activist judges who would legislate from the bench. Indeed, he spent much of his career educating the public about the dangers of the looser, liberal approach to judging. In a world where judges are free to substitute their policy preferences for those of the people's elected representatives, Scalia warned, judges become the ultimate arbiters of right and wrong.
The dangers of this free-wheeling approach to judging are too many to count. As many Utahns know, entrusting liberal judges to interpret our laws could threaten our very way of life. With no regard for the values and freedoms we hold dear, these judges could drastically weaken laws protecting the sanctity of life, Second Amendment rights and religious liberty. Our ability to exercise our most basic rights would no longer depend on the original meaning of the Constitution but on the subjective, politically charged opinions of a handful of unelected judges. We cannot afford to put our most fundamental freedoms at risk by giving liberal judges free rein to distort our Constitution.
That's why our nation needs principled jurists who adhere to the text and original meaning of the Constitution. Judges who exercise restraint and honor our founding principles will give full force to constitutional protections regardless of their own political views. They will carefully scrutinize laws that impinge on religious freedom no matter how narrow or old-fashioned the religious beliefs at issue may seem. These judges will also constrain government overreach in areas like health care, education, and land use, where officials too often seek to do more than the law actually allows. Equally important, judges who follow the Constitution will leave fundamental decisions about morality and the type of society we want to live in to the people and their elected representatives.
These are issues that should matter to all Utahns. We want to retain the power to order society as we see fit through the democratic process even as we rely on judges to hold government's feet to the fire, to ensure that officials carry out the law as Congress intended.
Scalia understood the proper role of the judge in our constitutional system, and Gorsuch does, too. In a speech given not long after Scalia's passing, Gorsuch said that "judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views."
Like Scalia's opinions, Gorsuch's opinions evidence a focus on text and original intent. In one case, he observed that the Constitution "isn't some inkblot on which litigants may project their hopes and dreams," but rather "a carefully drafted text judges are charged with applying according to its original public meaning." On issues ranging from religious liberty to federal overreach, Gorsuch has shown a steady devotion to the Constitution and to the principle that judges are to interpret, not rewrite, the law.
The composition of the Supreme Court is an issue of profound importance to Utahns, and indeed, to all Americans. The justices decide questions that affect all our lives — from limits on federal power to the definition of fundamental societal institutions. It's essential, therefore, that justices understand their important but limited role under the Constitution. Scalia powerfully advocated and consistently followed the founders' vision in his judging. I have full confidence that Gorsuch will do the same.
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Hatch Statement on Judiciary Committee Vote on Sessions Nomination
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior member and former Chairman of the Senate Judiciary Committee, issued the following statement after the Senate Judiciary Committee voted to advance the nomination of Senator Jeff Sessions, R-Alabama, to serve as the next Attorney General of the United States:
“Today the Judiciary Committee overcame Democrats' stalling tactics and approved the nomination of Senator Jeff Sessions to be U.S. Attorney General. A man of intergrity, he has the vision and experience to get the Justice Department back on track. The partisan games being played to delay confirmation of the President’s Cabinet not only break with tradition, but they expose the willingness of some to undermine the very institutions of government for temporary political gain. I urge Senators on both sides of the aisle to put our country and the Senate ahead of such narrow partisan interests.”
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Hatch to Meet with Supreme Court Nominee Neil Gorsuch Today
Washington, D.C.—This afternoon, Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, will meet with Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court.
Last night, Senator Hatch attended President Trump’s announcement at the White House and praised Judge Gorsuch on video. He also met with the President in the Oval Office last week for more than an hour to engage in a wide-ranging conversation on policy issues that included, among other things, a discussion of the President’s choices for the Supreme Court. You can find out more about Senator Hatch’s White House visit by watching this video.
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As Democrats Refuse to Participate in Confirmation Process in Finance Committee, Hatch Advances Key Cabinet Nominees
Washington, D.C.—Following Democrats’ unprecedented move to block two of President Trump’s Cabinet nominees, Chairman Orrin Hatch, R-Utah, today led the Senate Finance Committee to pass a motion to approve the nominations of Steven Mnuchin to serve as Treasury Secretary and Rep. Tom Price (R-Ga.) to serve as Department of Health and Human Services (HHS) Secretary.
On Democrats’ unprecedented actions
Yesterday, rather than accept anything less than their desired outcome, our Democrat colleagues chose to cower in the hallway and hold a press conference.
To make matters worse, our colleagues did all of this despite the fact that the Ranking Member and I had worked through the process together on these nominations and had agreed upon the timeline for votes. I had, of course, foolishly assumed my colleague was operating in good faith.
Worse still, the decision to boycott yesterday’s meeting was not conveyed to anyone on our side until literally seconds before we were scheduled to begin. And, the decision wasn’t even conveyed to us by the Ranking Member in person.
On the Senate Finance Committee’s History of Bipartisanship
We took some unprecedented actions today due to the unprecedented obstruction on the part of our colleagues. As I noted earlier, the Senate Finance Committee has traditionally been able to function in even the most divisive political environments. Personally, as longtime member of this committee, I have been proud of that distinction. And, in my time as both Ranking Member and Chairman of this committee, I have bent over backwards to preserve its unique status as one of the few places where Republicans and Democrats not only work together, but achieve results. That all changed yesterday. Republicans on this committee showed up to do our jobs. Yesterday, rather than accept anything less than their desired outcome, our Democrat colleagues chose to cower in the hallway and hold a press conference. Now, I get that my colleagues think these nominees are controversial. I get that they don’t want to see them confirmed. We’ve all been in that situation. It comes part and parcel with the job of being a Senator. And, this is hardly the first time a nominee deemed to be controversial has come before this committee.
On moving forward
“Needless to say, this discussion isn’t over. I intend to get the committee back to where it once was, and I will use every tool at my disposal, procedural or otherwise, to make sure this doesn’t become the new normal for the Senate Finance Committee.”
Chairman Hatch’s full statement, as prepared for delivery:
First, I’ll remark on the action that was just taken, because I’m fairly certain our colleagues will try to characterize it as some kind of nefarious breach of protocol.
So, before the Democrats call another press conference, here are the facts:
Throughout the process of vetting and considering these nominations, I made a good faith effort to address my colleagues concerns, including extended questioning periods, both during the hearings and in writing. Yet, at every step, the nomination process has been undermined by political gamesmanship. One of many examples includes leaking typically private disclosures from the nominees to the media in order to build public cases against them.
There have been charges made about the nominees’ ethics, finances, and integrity. Yet, in each case, the allegations proved to be misleading and dramatically overstated.
Case in point, with Dr. Price, we’ve heard repeatedly that he was offered and accepted sweetheart investment deal from an Australian BioMed company. But, the truth is that the company had a very small group of initial U.S. investors at that time, and everyone in that group – you can call it a “select group” if you want -- were all offered the same access to the stock purchases.
Dr. Price’s account of the investment hasn’t really been substantially refuted, let alone disproven. But, my colleagues claim that their misinterpretation of his testimony is grounds for an indefinite delay on his confirmation.
With Mr. Mnuchin, we’ve heard a lot about “robo-signing” in the past couple days. What we haven’t heard is a fixed definition as to what constitutes “robo-signing.” That’s because no fixed definition exists. It is a vague label casually thrown around to refer to a broad set of practices. There is no agreed upon standard – legal or otherwise – as to what constitutes “robo-signing.” Therefore, any question that simply throws out the term without specifically explaining what is meant by it is not only poorly written, it is inherently vague.
In his answer to a colleagues’ vague written question, Mr. Mnuchin stated that OneWest did not engage in the practice and referred to a government review of practices that provide an analog for the loose notion of “robo-signing.” According to the measures utilized in that review, OneWest did not engage in “robo-signing.”
In other words, Mr. Mnuchin provided an honest answer.
This the level of minutia we’re dealing with here. My colleagues are using their own parsed words and vague questions as justification for their refusal to even vote on these nominations.
As a result, we are currently in the midst of the longest transition period without a confirmed Treasury Secretary in our nation’s history. And, the process for vetting and reporting Dr. Price’s nomination has taken longer than that of the last two HHS Secretaries combined.
At every turn, my colleagues’ arguments change, but their answer is always the same: delay.
And, then yesterday, my colleagues took the unprecedented step of boycotting a Finance Committee vote on nominations.
Long story short, we took some unprecedented actions today due to the unprecedented obstruction on the part of our colleagues.
As I noted earlier, the Senate Finance Committee has traditionally been able to function in even the most divisive political environments. That all changed yesterday.
Personally, as longtime member of this committee, I have been proud of that distinction. And, in my time as both Ranking Member and Chairman of this committee, I have bent over backwards to preserve its unique status as one of the few places where Republicans and Democrats not only work together, but achieve results. And, I’d defy ANYONE to give an example of a time when I’ve done otherwise.
Now, I get that my colleagues think these nominees are controversial. I get that they don’t want to see them confirmed.
We’ve all been in that situation. It comes part and parcel with the job of being a Senator.
And, this is hardly the first time a nominee deemed to be controversial has come before this committee.
I’ll remind everyone that, nine years ago, this committee processed a Treasury Secretary nominee that was HIGHLY controversial. He had an outstanding tax bill of nearly $40,000, as much as many Americans make in a year. And, for some of our colleagues, his explanation for the unpaid taxes didn’t seem to add up. And, he was appointed by a President that our side did not support and with whom we had serious – and I mean SERIOUS – disagreements.
Yet, even then, Republicans on this committee showed up to do our jobs.
Yesterday, rather than accept anything less than their desired outcome, our Democrat colleagues chose to cower in the hallway and hold a press conference.
To make matters worse, our colleagues did all of this despite the fact that the Ranking Member and I had worked through the process together on these nominations and had agreed upon the timeline for votes. I had, of course, foolishly assumed my colleague was operating good faith.
Worse still, the decision to boycott yesterday’s meeting was not conveyed to anyone on our side until literally seconds before we were scheduled to begin. And, the decision wasn’t even conveyed to us by the Ranking Member in person.
While clearly I am frustrated by this turn of events, I am actually more confused than anything else.
The Senator who led this boycott is the same Ranking Member who worked with us on the committee to report – and eventually pass – a record number of bipartisan bills in the last Congress.
It is the same Ranking Member that defied many in his own party to draft, support, and help pass historic trade legislation in 2015.
It is the same Ranking Member with whom we have been able to navigate a number of dicey political issues, including, for example, our investigation into the IRS targeting schedule.
Today, the Ranking Member who did all of those things is nowhere to be found. For all intents and purposes, the Democrat seats on the Finance Committee are all now occupied by the Senate Minority Leader, and all of them appear ready to leap off whatever cliff he designates, even if it means breaching the good faith that has long been the hallmark of this committee.
Needless to say, this discussion isn’t over. I intend to get the committee back to where it once was, and I will use every tool at my disposal, procedural or otherwise, to make sure this doesn’t become the new normal for the Senate Finance Committee.
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VIDEO: Hatch Meets with Supreme Court Nominee Neil Gorsuch
Washington, D.C.—This afternoon, Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, met with Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court.
Last night, Senator Hatch attended President Trump’s announcement at the White House and praised Judge Gorsuch on video. He also met with the President in the Oval Office last week for more than an hour to engage in a wide-ranging conversation on policy issues that included, among other things, a discussion of the President’s choices for the Supreme Court. You can find out more about Senator Hatch’s White House visit by watching this video. Senator Hatch also wrote an op-ed about Judge Gorsuch’s qualifications in the Salt Lake Tribune.
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Hatch: In Neil Gorsuch’s America, Laws Are Made by the People’s Representatives, Not Unaccountable Judges
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior Republican in the United States Senate, spoke on the Senate floor this evening in support of the nomination of Neil Gorsuch, President Trump’s nominee to serve on the United States Supreme Court. Senator Hatch has served longer than any other current member of the Senate Judiciary Committee, and has participated in the confirmation of twelve Supreme Court justices, including all of the current members of the Court.
In Neil Gorsuch’s America, the laws that bind us are made by the people’s elected representatives, not unelected, unaccountable judges.
In Neil Gorsuch’s America, the powers and limits of each branch of government are decided by the Constitution, no matter whether their enforcement produces a liberal or a conservative outcome.
In Neil Gorsuch’s America, the basic freedoms of the American people enumerated in the Bill of Rights are carefully protected, whether they are in fashion lately with the left, the right, both, or neither.
In Neil Gorsuch’s America, the views that matter are yours and mine, not those of a handful of lawyers in black robes in Washington.
Judge Gorsuch will do us proud as our next Supreme Court justice, and I will do everything in my power to ensure his confirmation. I applaud the President for his absolutely stellar choice.
On how Gorsuch is the best fit to replace Justice Scalia:
As the intellectual architect of this effort to restore the judiciary to its proper role under the Constitution, Justice Scalia was a singularly influential jurist. To say that he leaves big shoes to fill is an understatement. Any worthy successor to his legacy will not only be committed to continuing his life’s work, but also capable of delivering the sort of intellectual leadership that Justice Scalia provided for decades. Of all of the potential candidates for this vacancy, Neil Gorsuch stands out as the jurist best positioned to fill this role.
On Judge Gorsuch’s judicial philosophy
I think there can be no doubt that Judge Gorsuch has the credentials to make him a capable and effective member of the Supreme Court. Nevertheless, I have long held that a nominee’s résumé alone—no matter how sterling—should not be considered sufficient evidence to merit confirmation to the Supreme Court. Rather, we should also consider a nominee’s judicial philosophy. In this analysis, Judge Gorsuch has developed a record that should command ironclad confidence in his understanding of the proper role of a judge under the Constitution.
The full speech, as prepared for delivery, is below:
Mr. President, I rise today in support of the nomination of Judge Neil M. Gorsuch to serve as the next Associate Justice of the Supreme Court of the United States.
Judge Gorsuch has been nominated to fill the seat left vacant by the late Justice Antonin Scalia.
Justice Scalia was a dear friend of mine, and his death was a great loss—not just for me personally, but for the whole nation.
Justice Scalia joined the Supreme Court after years of unbridled activism by the Court, during which time justices imposed their own left-wing views—completely unmoored from the law as written—on the American people.
In response, he led a much-needed revolution based on the enduring principle that the role of a judge is to say what the law is, not what a judge wishes it were.
As the intellectual architect of the effort to restore the judiciary to its proper role under the Constitution, Justice Scalia was a singularly influential jurist.
To say that he leaves big shoes to fill is an understatement.
Any worthy successor to his legacy will not only be committed to continuing his life’s work, but also capable of delivering the sort of intellectual leadership that Justice Scalia provided for decades.
Of all of the potential candidates for this vacancy, Neil Gorsuch stands out as the jurist best positioned to fill this role.
His résumé can only be described as stellar: Columbia University, a Marshall Scholarship to study at Oxford, Harvard Law School, clerkships for Judge Sentelle on the D.C. Circuit and for Justices White and Kennedy on the Supreme Court, a distinguished career in private practice and at the Department of Justice, and more than a decade of service on the U.S. Court of Appeals for the Tenth Circuit.
Even among his many talented colleagues on the federal bench, his opinions consistently stand out for their clarity, thoughtfulness, and air-tight reasoning.
In the words of one of his colleagues appointed by President Carter, Judge Gorsuch “writes opinions in a unique style that has more verve and vitality than any other judge I study on a regular basis.”
He continued: “Judge Gorsuch listens well and decides justly. His dissents are instructive rather than vitriolic. In sum, I think he is an excellent judicial craftsman.”
This view of Judge Gorsuch’s capabilities is broadly shared across a wide swath of legal observers.
Consider some other descriptions of his qualifications from outlets that could hardly be considered conservative:
The New York Times reported on his “credentials and erudition”;
The Los Angeles Times called him a “highly regarded . . . jurist”;
And ABC News described how “[i]n legal circles, he’s considered a gifted writer.”
Mr. President, I think there can be no doubt that Judge Gorsuch has the credentials to make him a capable and effective member of the Supreme Court.
Nevertheless, I have long held that a nominee’s résumé alone—no matter how sterling—should not be considered sufficient evidence to merit confirmation to the Supreme Court.
Rather, we should also consider a nominee’s judicial philosophy.
In this analysis, Judge Gorsuch has developed a record that should command ironclad confidence in his understanding of the proper role of a judge under the Constitution.
Judge Gorsuch’s opinions and writings show a clear fidelity to a judge’s proper role.
While his body of work is replete with examples of this fidelity, I want to point to one example in particular: a lecture he delivered last year in the wake of Justice Scalia’s death that is one of the most thoughtful and persuasive cases for the proper role of a judge that I have ever read.
In it, he affirmed his allegiance to the traditional account of the judicial role championed by Justice Scalia, which he described as such:
[T]he 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. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Mr. President, this is exactly the kind of judicial philosophy we need our judges to espouse, and Neil Gorsuch is exactly the man to embody it on the Supreme Court.
If there is one line in that lecture to which I could draw attention, it is the quotation of Justice Scalia’s formulation of the very basic notion that a good judge will oftentimes reach outcomes that he does not personally agree with as a matter of policy.
Such a notion should be uncontroversial.
Indeed, many of Justice Scalia’s greatest opinions came in cases in which I suspect he would have voted differently as a legislator than as a judge.
Yet such a concept might seem wholly foreign to a casual observer of media coverage of the Supreme Court, in which cases are invariably viewed through a political lens.
Decisions and justices are regularly described as liberal or conservative, with little attention paid to rationale and methodology, the matters properly at the core of a judge’s work.
This phenomenon reflects a regrettable dynamic observed by Justice Scalia himself.
As the late Justice observed, when judges substitute their personal policy preferences for the fixed and discernible meaning of the law, the selection of judges—in particular, the selection of Supreme Court justices—becomes what he called a mini-plebiscite on the meaning of the Constitution and laws of this country.
Put another way, if judges are empowered to rewrite the law as they please, the judicial appointment process becomes a matter of selecting life-tenured legislators practically immune from any accountability.
If we buy into such a system of judicial review, a system deeply at odds with the Constitution’s conception of the judiciary, then one can easily see why judicial selection becomes a matter of producing particular policy outcomes.
Thus, it is easy to see why many on the left that believe in such a system demand litmus tests on hot-button policy issues.
To them, a judge is not fit to serve unless they rule in a way that produces a particular policy.
Simply put, this is a terrible way to approach judicial selection. It undermines the Constitution and all of the crucial principles it enshrines, from the rule of law to the notion that our government’s legitimacy depends on the consent of the governed.
Mr. President, a good judge is not one that we can depend on to produce particular policy outcomes; a good judge is one we can depend on to produce the outcomes commanded by the law and the Constitution.
Neil Gorsuch has firmly established himself as that kind of judge.
In Neil Gorsuch’s America, the laws that bind us are made by the people’s elected representatives, not unelected, unaccountable judges.
In Neil Gorsuch’s America, the powers and limits of each branch of government are decided by the Constitution, no matter whether their enforcement produces a liberal or a conservative outcome.
In Neil Gorsuch’s America, the basic freedoms of the American people enumerated in the Bill of Rights are carefully protected, whether they are in fashion lately with the left, the right, both, or neither.
In Neil Gorsuch’s America, the views that matter are yours and mine, not those of a handful of lawyers in black robes in Washington.
For these reasons, I applaud the President for his absolutely stellar choice.
Judge Gorsuch will do us proud as our next Supreme Court justice, and I will do everything in my power to ensure his confirmation.
Thank you, Mr. President.
I yield the floor.
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On For the Record, Hatch Touts Neil Gorsuch’s Qualifications
Washington, D.C.—Tonight Senator Orrin Hatch, R-Utah, joined Greta on For the Record on MSNBC to discuss Neil Gorsuch, President Trump’s nominee to serve on the United States Supreme Court.
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In meeting with President Trump at White House, Hatch plots path forward on trade
Washington, D.C.—Senator Orrin Hatch, R-Utah, the Chairman of the Senate Finance Committee, met with President Trump at the White House today to discuss U.S. trade policy.
Opening the meeting, President Trump said, “We’ve put together an all-star team here of people working on trade. We are working very, very hard and will be very soon. We'll go ahead. You know we have the 90-day period we have to think about. We want to get that whole thing kick-started and going.”
Photo: Bloomberg/Getty — Photos and Video Available from White House Press Pool
Following the meeting, Hatch said, “I appreciate President Trump’s focus on advancing a strong trade agenda on behalf of the American people, including ideas to modernize NAFTA. NAFTA has served as a strong anchor for our markets in the northern hemisphere and helped to expand trade opportunities for American products, goods, and services. Given that the trade pact is now more than two decades old, a re-examination of the agreement to ensure it remains the best possible deal for American workers and entrepreneurs in the 21st century global economy makes sense. Ultimately, major shifts in policy are decisions that should be made with the consultation of Congress which, under the U.S. Constitution, has authority over tariffs. To that end, I appreciated the opportunity to talk with President Trump and discuss the path forward on our trade agenda.”
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Why Neil Gorsuch is the Right Choice
By Senator Orrin Hatch
Tuesday night, President Trump nominated Judge Neil Gorsuch to fill the Supreme Court seat left vacant by the late Justice Antonin Scalia’s untimely passing. As the intellectual architect of the effort to restore the judiciary to its proper role under the Constitution, Justice Scalia was a singularly influential jurist. To say that he leaves big shoes to fill is an understatement. Any worthy successor to Justice Scalia’s legacy must not only be committed to continuing his life’s work, but also capable of delivering the sort of intellectual leadership that Justice Scalia provided for decades.
Of all of the potential candidates for this vacancy, Neil Gorsuch stands out as the one best positioned to fill this role. His résumé can only be described as stellar: Columbia University, Oxford, Harvard Law School, clerkships on the D.C. Circuit and Supreme Court, a distinguished career in private practice and in the Department of Justice, and more than a decade of service on the U.S. Court of Appeals for the Tenth Circuit.
Even among his many talented colleagues on the federal bench, Judge Gorsuch’s opinions consistently stand out for their clarity, thoughtfulness, and reasoning. In the words a colleague appointed by President Carter, Judge Gorsuch “writes opinions in a unique style that has more verve and vitality than any other judge I study on a regular basis.” That colleague continues: “Judge Gorsuch listens well and decides justly. His dissents are instructive rather than vitriolic. In sum, I think he is an excellent judicial craftsman.”
There can be no doubt that Judge Gorsuch has the credentials to be an effective member of the Supreme Court. Nevertheless, I have long held that no nominee’s résumé alone—no matter how sterling—should be considered sufficient to merit confirmation to the Supreme Court. Rather, we must also consider a nominee’s judicial philosophy.
On this count, Judge Gorsuch’s opinions and writings reflect an understanding of the proper role of a judge under the Constitution. For example, in a lecture he delivered last year shortly after Justice Scalia’s passing, Judge Gorsuch affirmed his allegiance to the view that judges should “strive . . . to apply the law as it is, . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
In that same lecture, Judge Gorsuch also quoted Justice Scalia’s statement that a good judge will often reach outcomes he does not personally agree with as a matter of policy. Such a notion should be uncontroversial. Indeed, many of Justice Scalia’s greatest opinions came in cases in which I suspect he would have voted differently as a legislator.
Unfortunately, the idea that judges should decide cases based on law, not policy, might seem foreign to a casual observer of Supreme Court media coverage, in which cases are invariably discussed in terms of their politics. Decisions and justices are regularly described as liberal or conservative, with little attention paid to rationale and methodology, the matters properly at the core of a judge’s work.
This phenomenon reflects a regrettable dynamic Justice Scalia himself lamented. As the late Justice observed, when judges substitute their own policy preferences for the fixed and discernible meaning of the law, the selection of judges—and in particular, the selection of Supreme Court justices—becomes a “mini-plebiscite” on the meaning of the Constitution. Put another way, if judges are empowered to rewrite the law as they please, the judicial appointment process becomes a matter of selecting life-tenured legislators largely immune from accountability.
If we buy into such a system, a system deeply at odds with the the Founders’ view of the judiciary, then we can easily see why judicial selection becomes a matter of litmus tests on hot-button policy issues.
This is a fundamentally misguided way to approach judicial selection. Such an approach undermines the Constitution and all of the crucial principles it enshrines, from the rule of law to the notion that government’s legitimacy depends on the consent of the governed.
A good judge is not one we can depend on to produce particular policy outcomes. Rather, a good judge is one we can depend on to produce the outcomes the law and the Constitution prescribe. Neil Gorsuch is exactly that sort of judge, and deserves a smooth and speedy confirmation.
