Robert Meyer
The controversy over Scalia's seat
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By Robert Meyer
February 20, 2017

President Donald Trump has picked his SCOTUS nominee, Judge Neil Gorsuch. It's somewhat likely the Democrats in the Senate will filibuster the nomination, because as the insurance advertisement reminds us, that's what they do. Besides, they want payback for the Republicans refusal to vote on Merrick Garland's nomination last year. While I don't like the Democratic tactics, I'll never say they have no constitutional right to do it. In the end, filibustering the nomination won't do any good, but I'm sure Republican leadership would rather avoid all the acrimony they will encounter by modifying the existing protocol.

Last spring a reader rebuffed me for saying that Republicans should not vote on Garland's nomination. My reasoning was that if Trump won the presidential election, we would get a stronger candidate. The reader said that Trump couldn't win, and Clinton would appoint a younger, more liberal nominee. The Republican leadership would be kicking themselves now if they had succumbed to conventional wisdom.

Of course Democratic leadership will claim that Gorsuch is out of the "mainstream." This means that Gorsuch interprets the Constitution according the original intent of the Founders rather than importing creative meanings divined from cultural trends, foreign laws and personal convictions. Being out of the mainstream or being unqualified actually is a statement about ideology. An ideology that liberals oppose. We might ask what is considered "mainstream" in the first place. Among Trump voters, the SCOTUS nominee selection was listed as a substantive reason for voting as they did, rather than deferring to the personality of the candidate. Since Trump won the election, that distinction alone makes Gorsuch mainstream. The jurisprudence of original intent is a bane for the left-wing, which relies on the judiciary to enact elements of their agenda, which can't be accomplished by obtaining legislative majorities.

How different from James Madison who reasoned:

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."

Thomas Jefferson concurred as well:

"On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

Progressives improperly reason that this hermeneutic would justify slavery, since some Founders owned slaves. Such thinking nullifies and ignores the purpose of the amendment process in shaping constitutionality. Lawful amendments are just as much a valid part of the Constitution as the original text. But there is a wrong way to bring about change.

George Washington warned in his Farewell Address:

...If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Another issue is often that liberals conflate the jurisprudence of original intent with some sort of hyper literal constructionism. One poster said that the proper application of Second Amendment would pertain only to firearms that existed in the 18th century.

The real issue here is that people who oppose "Original intent" have a penchant for misrepresenting its flexible applications in contemporary circumstances. While the meanings of text and the spirit of the law are fixed standards, the law is organic and will accommodate expanding applications. For example, James Madison could never have contemplated technology like wiretaps, yet the language of the Fourth Amendment is adequate to determine how we should determine their legal application.

Liberals talk about putting the Constitution into "context of contemporary experience." But that has as many different meanings as there are individuals. It vests interpretation into the hands of particular individuals, as though there was no text at all and judges were ancient Grecian philosopher-kings, rather than interpretation being vested into the constitutional text. That would elevate the persona of the judge above the Constitution itself.

A few years ago, former Democratic Majority Leader Harry Reid enacted the "Nuclear option," a process by which Senate rules were changed to permit Obama's lower court judicial nominations to be confirmed without the customary 60 vote majority. They did this to pack the lower courts with Obama's style of judges, those who would rule capriciously as philosopher-kings to bring about the results they desire.

Republicans will likely extend that rule to SCOTUS nominations in order to confirm Gorsuch. There will be screeching like a chorus of scorched cats from the Democrats about the injustice of this maneuver.

But how ironic that a couple months ago, progressives argued that it was an injustice for Hillary Clinton to lose the presidential election despite winning the popular vote. Now they will argue that no SCOTUS nominee should be approved with a mere simple majority.

© Robert Meyer

 

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Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

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