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Trump’s Supreme Court pick wary of ‘politicians with robes’

  • ASSOCIATED PRESS

    President Donald Trump shakes hands with 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, his choice for Supreme Court associate justice in the East Room of the White House in Washington.

Judge Neil Gorsuch recalls being blinded by tears in the middle of a ski run after someone rang his cellphone with news of the unexpected death of Supreme Court Justice Antonin Scalia. The reaction illustrates not only the depth of Gorsuch’s admiration for his mentor but also how thoroughly he has modeled his conservative constitutionalist views after Scalia.

“I immediately lost what breath I had,” Gorsuch, who sits on the 10th U.S. Circuit Court of Appeals, said in a speech last April. “And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”

One year later, the 49-year-old Colorado native is President Donald Trump’s pick to replace Scalia as the Republican leader heeded calls by many conservatives to find someone as near to a Scalia philosophical clone as possible.

Like Scalia, Gorsuch believes judges must focus primarily on the text of the 230-year-old Constitution and resolve legal disputes by following the Founding Fathers’ intentions. Gorsuch has said that if judges factor in personal beliefs, societal changes or calculations about maximizing social welfare, they risk becoming “little more than politicians with robes.”

Gorsuch, who once went fly-fishing with Scalia, said Scalia helped remind Americans about the roles of judges and lawmakers. In a speech last year at Case Western Reserve University, Gorsuch said that message was that “legislators may appeal to their own moral convictions and to claims about social utility to reshape law. … But that judges should do none of these things in a democratic society.”

Scalia, who died last February, was a leading proponent of originalism, an approach that seeks to resolve constitutional disputes by focusing on the document’s text, its historical context and the framers’ intentions. Originalism often is viewed as a conservative philosophy, but adherents can often hold strong civil libertarian views. Scalia, for example, held that flag burning was protected speech.

Scalia frequently complained that the concept of originalism was misunderstood. He explained that an emphasis on text and historical context is flexible enough to be applied to modern phenomena like radio and the internet. And he said originalism left open avenues for change, including through constitutional amendments and legislation.

“You want to create new rights and/or destroy old ones?” Scalia asked in a 1996 speech. “A legislature and the electoral franchise are all that you need. The only reason you need a constitution is because there are some things which you don’t want a majority to be able to change.”

Originalism’s critics say judges should treat the Constitution as a living, breathing document that’s able to encompass society’s evolving values. An example of this approach is the 2015 Supreme Court ruling that says constitutional rights to due process and equal protection supports a right to same-sex marriage. In his dissent, Chief Justice John G. Roberts Jr. wrote that the Constitution “had nothing to do with” that ruling by the court majority.

In his 2016 speech, Gorsuch also quoted Scalia as saying that, to be a good 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.”

Despite his adherence to a conservative legal philosophy, Gorsuch has also warned against rigidity. When asked at his 2006 confirmation hearings for the appeals court about the kind of judge he considers unacceptable, Gorsuch answered: “Someone who is not willing to listen with an open mind to the arguments of counsel, to his colleagues, and to precedent.”

But Gorsuch’s tendency to harken back to the framers is reflected in his sharp criticism of the Chevron doctrine, which holds that judges should defer to federal departments and agencies to fill in the blanks of certain laws, including on immigration and the environment. The framers, Gorsuch wrote last year, intended for lawmakers to make the laws, executives to execute them and judges to decipher their meaning.

“A government of diffused powers, they knew, is a government less capable of invading the liberties of the people,” he wrote.

Gorsuch incorporated wariness of executive power in a dissent after the full 10th Circuit declined to rehear a three-judge panel’s ruling that a sex offender should comply with detailed rules about registering as a sex offender. Those rules were set not by Congress, but by the U.S. attorney general.

“If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce,” Gorsuch wrote in 2015.

If political leaders differ with judges over existing law, Gorsuch wrote, politicians always had a clear constitutional remedy: “It’s called legislation. … Admittedly, the legislative process can be an arduous one. But that’s no bug in the constitutional design: It is the very point of the design.”

Originalists such as Gorsuch also apply their philosophy to resolve disagreements over laws crafted by Congress or state legislatures, focusing on the text and intention of the lawmakers.

In a 2012 dissent in an appeal of a federal law that bans felons from possessing guns, Gorsuch wrote: “When the current statute’s language is clear, it must be enforced just as Congress wrote it. … Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes. But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.”

Gorsuch has argued that liberals are too quick to file lawsuits as a way to force change, even though there’s “no doubt that constitutional lawsuits have secured critical civil-rights victories,” including desegregation. He said that reliance can end up hardening divisions.

“In the legislative arena, especially when the country is closely divided, compromises tend to be the rule of the day,” he wrote in the National Review in 2005. “But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose.”

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  • gorsuch is able and ready to serve as supreme court justice.

    democrats are going to bork the committee hearing and floor vote.

    and, by the way, why does hilary need constant monitoring of two of her attending physicians, bardack, who claimed hilary was healthy and okunola clinton’s diazepam-ready neurologist? both accompanied her to the inauguration, sitting with her through the ceremony?

        • You won’t see any response, as anyone with any degree of sense realizes that having Gorsuch join the court is nothing but a plus for this nation.

        • Anyone who Pence advocates for the Supreme Court has got to be a far right Christian zealot, who wants to make the Christian Church a state religion. It would be a return to the Middle Ages, where the Catholic Church was the state, and you had the Inquisition, torture, and witch burnings of anyone who disobeyed the Holy Catholic Church

        • Gorsuch founded the “Fascism Forever Club” in high school and was its president. That says volumes.

        • You’re as bad as klastri. Make up some more stories instead of accepting a stunning defeat. HiLIARy took dirty lickens.”I believe Neil Gorsuch will soon take his seat as an associate justice of the Supreme Court of the United States,” Pence said to applause, calling him “one of the most mainstream, respected and exceptionally qualified Supreme Court nominees in American history.”

    • IRT St1d, agree with your post that Judge Gorsuch is qualified, able, and ready to serve as an Associate Justice on the U.S. Supreme Court. I also believe that he will impress during the hearing and gain the Senate votes for confirmation.

      • Judge Gorsuch was educated in a Jesuit school, the militants wing of the Catholic Church. He belonged to a political club that attacked liberal educators and professors. He also said, “Fascism now, fascism forever.” So much for being an unbiased judge.

      • Gorsuch is a Catholic Jesuit, and do you know how they dealt with Protestants during the Protestant Reformation, they murdered 800,000 Calvinist, Lutherans, and anti- Catholic people during the 30 Years War of Religions in the early 1700s. The Protestants and Catholics believed they had GOD on their side, and proceeded to murder and destroy each other and Europe in the process. And GOD finished the religious genocide by sending the Black Plague to finish them off in the millions

    • Democrats must not give in or risk getting railroaded by the GOP and Trump’s dangerous mission to destroy the government from the top down. With so much at stake for this country, expect the Democrats to fight tooth and nail to prevent this nomination from succeeding, even more so than what the GOP did to deny Merrick Garland even a hearing by congress.

  • This past election had a very big issue in it, besides Trumps’ behaviors. It was the Supreme Court. A court that is supposed to be above politics. The current person nominated (Scalia resurection) might be on the court for 30 years.

  • If there are any “politicians with robes” on the Supreme Court, they’re the Justices who overturned the democratic process and chose George W. Bush to be President and then, ignoring 100 years of precedent, in Citizens United issued a decision that had little to do with the issue that was being litigated.

    • Shame on you bsdetection: Propagating a couple of demonstrably false left wing talking points.

      The supreme court did not choose George Bush. The supreme court correctly put an end to the endless recounts in Florida giving Bush those electoral votes and the election. And the Citizens United decision allowed corporations the same freedoms that labor unions already enjoyed.

      Back to the drawing board, eh?

      • CEI, IT’S not about left wing, right wing, it’S about fighting and defending truth, freedom, equality and justice for all. You are really confused and need to get on the level of reason and sanity

        • CEI and Vector> C’mon now. CEI got you on this one. I agree with CEI and chose to disagree with VECTOR. The Honorable Supreme Court Justice Gorsuch will do just fine. Believe it.

  • Democrats under Senate whip Reid changed the confirmation process during Obama’s first term, now the liberal democrats are cackling up a tree. They sure shot their own feet. Ultimately the Republicans will prevail.

    • “Robert C. Byrd, a Democrat, was a recruiter for the Klan while in his 20s and 30s, rising to the title of Kleagle and Exalted Cyclops of his local chapter. After leaving the group, Byrd spoke in favor of the Klan during his early political career. Though he claimed to have left the organization in 1943, Byrd wrote a letter in 1946 to the group’s Imperial Wizard stating “The Klan is needed today as never before, and I am anxious to see its rebirth here in West Virginia.”

      if byrd can be forgiven for his activism in the kkk for decades and praised by democrats including the clintons, surely gorsuch can be forgiven for a one time high school prank.

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