THE GORSUCH NOMINATION AND ITS POLITICAL CONSEQUENCES

gorsuch

^ President Trump had a right to smile as his Supreme Court nominee addresses those who were on hand to see it. Now what ?

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Yesterday President Trump performed one of his most important Constitutional duties. Nominating someone to the Supreme Court has become almost as significant as electing a President because the more laws an increasingly complex nation enacts, the more say the high Court has in directing it all. Thus the significance, both in fact and politically, because what policies the laws enact are at least as important as the enactment itself.

The nomination was expertly handled. We saw none of the incompetence that characterizes most of Mr. Trump’s operation, none of the ignorance, cruelty, and bullying by which he plays his games of us versus them. Whoever advised Mr. Trump in this work knew what they were doing and got him to do it their way.

The professionalism of the operation, and its clever secrecy, match the excellence of the person nominated. Though I am not an originalist as to Constitutional interpretation — just the opposite — the originalist argument is a serious one and deserves its most serious champion in the debates that go on when the (hopefully) nine justices meet to decide how to rule and on what grounds. I am not afraid of having a brilliant originalist participate in those deliberations, nor should you be. If those of us who favor expansionist application of the Constitution cannot carry the deliberative day, shame on us. From I read about Neil Gorsuch, he is “best in show” for originalism (a position I shall explain to you next); I am glad to see that side’s best part of what must be “best in show” for all serious Constitutional points of view.

By “originalism” is meant the principle that the language of the Constitution and its Amendments must be read as those who first agreed to them read them. Those who apply this principle assert that the agreement — which is what the Constitution is, a pact agreed to — made was to those meanings, and not to future meanings perhaps different, as words do change meaning over time because words are used currently by those who live in the years they use them, not by those who may now be dead. The decision top have a written Constitution — not all nations have one, indeed our mother nation, England, has an unwritten one — committed those who so decided to the meanings of the words they agreed to. 229 years have passed since that agreement, and in that time words agreed to in 1787 have in most cases changed meaning quite a lot, and not always the same for everyone: and that is the problem that originalism seeks to avoid : that there is today no common agreement as to the meaning of words that in 1787 were agreed to; and for an originalist, that agreement is the essential act. It is so in contracts generally : there must be (1) a meeting of the minds, or there is no contract and (2) a deal is a deal is a deal; changing even a comma of an agreement changes the deal. About this, originalists are right; a pact like the Constitution is very much a contract between all the parties to it.

My view differs. For me, the Constitution is not a mere contract, for the purchase of goods or a promise of marriage; it is a guide for the operation of an ongoing communal enterprise that must figure out how to navigate un-forseen challenges, inventions, customs. The words for such un-forseen things may not have even existed in 1787 ! Further, the ent9ire history of the Constitution, as its Amendments demonstrate, is one of expansion, of inclusion of societal agreements no one in 1787 could possibly have imagined, said agreements being made according to general principles expressed in the Constitution’s Preamble : “to provide for the General Welfare” being the most dynamic. The Constitution belongs to those who must live with it. How else can it maintain common legitimacy ? Thus it evolves and adapts and earns the right to be agreed to over and over in the present. Of this view, Justices Brennan and Kennedy — and John Paul Stevens too — have been the most eloquent and influential voices. I would love to see another Justice like them. The Court needs their views in debate as well as it needs the originalists.

But this argument is for the Senate to evoke as it advises toward consent. The Gorsuch nomination will be debated, there will be hearings, a confirmation vote will be taken. My guess is that he will be consented to by a comfortable margin.

There must be no blocking of this nomination. The Republicans acted irresponsibly in not according the Merrick garland nomination a hearing. Their Senators did not do their Constitutional job. This cannot now be the Democrats’ response. At least one of our two major political parties must respect the Constitution’s directives. Right now the Democrats own the moral high ground, leading toward the 2018 mid-Term vote. It would a huge error for them to succumb to extremism; non-ideological, middle-ground voters will reject it. I think most Democratic leaders agree. I am fairly sure that that despite the present social media and street-theater outcry from Democratic extremists, almost all of the party’s Senators will engage, not block.

The other wrong politics of this, or any, Supreme Court nomination is to expect of a nominee any sort of commitment to any agenda. It used to be axiomatic that Senators did not ask nominees their views about matters of legislation that they might have to decide upon as if confirmed. Today it has become harder and harder for nominees to avoid being pinned down to this or that agenda, which is why nominations to the Court have tended more and more to legal neutering. To put my view bluntly : no one is entitled to a Supreme Court Justice’s political platform. Passing laws is the work of legislatures, not of judges. Is the law in question Constitutionally permissible or isn’t it ? That is the sole Constitutional test a Justice can legitimately apply.

I know that almost all of the above goes without saying, is in fact a chestnut. But the narrowness of our present politics, devoid of civic generosity or readiness to agreement, requires that chestnuts show their stuff in the spotlight again. All of this will be fought over as the Gorsuch nomination runs the gauntlet of demagoguery, special pleading, and advocacy combat. It will not be pretty, but unpretty is where we are right now.

—- Mike Freedberg / Here and Sphere