The Neil Gorsuch Nomination

In general, The Constitution may be interpreted in one of two equally valid ways. “Originalists” believe the document should be interpreted narrowly and focus on the strict meaning as intended by the Framers. This approach is not necessarily tied to traditional “liberal” or “conservative” camps, but refers more to an interpretive approach. The second approach is viewing the Constitution as a “living document” that must be shaped over time because of evolving social and economic forces. Article V of the Constitution provides for an amendment process, but those who espouse this second approach find that formal process too slow and unwieldy to deal with a rapidly changing society, and they offer the scarcity of amendments (27 since 1791) as evidence.

Both approaches are valid and easily defended. Both also have faults. A problem with originalism is that the Framers wrote the Constitution 230 years ago and could not possibly have envisioned me composing this document on a word processor or you reading it online. Nor could they have envisioned America’s developing social structure, the consequences of industrialization, a need for a rapid response in military crises, or using dogs and helicopters to find illegal drugs. In other words, expecting legislators and judges to apply a 230 year old document to modern issues is problematic.

Considering the Constitution a living document is also perilous. At what point is the Constitution stretched too far? How closely should governmental decisions be tied to the original text? What is to stop judges from being legislators themselves and interpreting the Constitution so broadly that it becomes a meaningless piece of paper?

For a number of reasons I won’t explain here (maybe in a later post) because the explanations would consume quite a bit of space,  I’ll just say I tend to accept the second approach. In Gompers v United States (1914), Justice Oliver Wendell Holmes succinctly summarized this approach by stating “Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth”. Like Holmes, I believe judicial decisions are not formulaic and must sometimes shape the Constitution to contemporary circumstances.

Judge Neil Gorsuch, President Trump’s first Supreme Court nominee, is an originalist in the mold of Antonin Scalia. I disagree with his approach to interpretation and, consequently, with a fairly large number of his decisions. However, he should absolutely be confirmed by the Senate unless some currently unknown moral or ethical shortcomings are discovered. His resume is impeccable and his experience is noteworthy. He graduated from Harvard, Columbia, and Oxford. He clerked with two Supreme Court justices. He served in private practice with a highly reputable law firm. He was confirmed to the U.S. Court of Appeals by unanimous Senate voice vote in 2006. After his confirmation I will almost certainly complain about his votes on the Court and criticize opinions he writes, but he is highly qualified for the position.

I know there are those who argue that the Senate should have considered President Obama’s nominee, Garland Merrick, during its 2016 session, and I agree. However, I disagree with holding up the appointment of a qualified jurist simply because of retribution or petty partisan politics.

In some future post I’ll probably offer arguments regarding the proper role of American courts and Constitutional interpretation, but my purpose here is to argue for Neil Gorsuch’s confirmation.