The Supreme Court confirmation process is hopelessly politicized. Should we confirm Gorsuch? Democrats and Republicans have jointly destroyed legitimate consideration of any nominee. They ignore what once were the traditional criteria for confirmation. Labeling and mischaracterization rule the day. A nominee from a President of one party is anathema to the other party. The opposition party, in turn, battles to the death to defeat the nominee. And they portray the nominee, whoever he might be, as a villain. He is either an enemy of the people or an enemy of free markets. A person who won’t side with “the little guy”, or one who eviscerates the Second Amendment.
The founders intended a Senate as a deliberative body. Their Senate would attract thoughtful, educated people not easily swayed by the less well-informed electorate or the temporary issue of the day. It would be positioned to dispassionately reflect, insulated from emotion. The Senate would advise on the character, capabilities and qualities of a Supreme Court nominee.
It was once and for long that way. But that is now lost, the inevitable consequence of a deep polarization. Of a fundamental vilification of our countrymen. And of a determination to put us all at each other throats for fleeting political advantage, until the next round, when our opponent surely then prevails. And then once again.
For those among us who are older, who remember a time when political difference yielded to political compromise, there is a nagging and growing despair that our younger generation learn only of hostility. Their experience is devoid of a common purpose, of a sense of community and of a common endeavor. They learn to despair of their political opposites. They find purpose only in winning for themselves, and in defeating their opponents. And they believe deeply and exclusively in faction. And to shout down their countrymen with whom they disagree, until their countrymen are silenced completely.
How Can the Senate Confirm Gorsuch?
If the American people want a Supreme Court justice who is human, humane, thoughtful and compassionate, then consider the thoughts and words of the current nominee. Should we confirm Gorsuch?
Here is a man who could have easily been nominated by a 1960’s Democrat. And if he were, most surely today’s Republicans would, to a man (and woman), line up against him. The American people are entitled to more than the simple default that a nominee of a President from one party is unacceptable to each and every Senator of the other party. And must be defeated, and if necessary destroyed.
So here are the words of nominee Neil Gorsuch. Do the philosophies embodied in these words allow any Democratic Senators to confirm Gorusch? Are not these thoughts the prerequisite to confirm Gorsuch, or anyone?
Belief in the Rule of Law
[J]udges taught me about the rule of law and the importance of an independent judiciary, how hard our forebearers worked to win these things, how easy they are to lose, and how every generation must either take its turn carrying the baton or watch it fall.
Belief in Applying the Law Impartially
[T]hese days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But I just don’t think that’s what a life in the law is about.
Belief in Following the Law, No Matter Where it Leads
As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world.
Supreme Court Justices’ Disagreements Are About The Law, Not About Political Opinions
Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor — while Justices Stevens and Scalia dissented. Now that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens — quietly, day in and day out — in the Supreme Court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60% of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system. . . .
Belief In Mutual Respect and Consideration of Different Viewpoints
[I]n the West we listen to one another respectfully, we tolerate and cherish different points of view, and we seek consensus whenever we can. My law clerks tell me that 97% of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99% of the time.
Belief That Courts Apply the Laws as Made by the Congress – Courts Should Not Be the Lawgivers
When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, “liberty can have nothing to fear from” judges who apply the law, but liberty “ha[s] every thing to fear” if judges try to legislate too.
Belief in Applying the Law to The Facts Presented
[M]y decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.
Confirm Gorsuch? – A Life in the Service of the Law
Written on [a judge’s] tombstone over 200 years ago was this description:
As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive;
In private life, he was affectionate and mild; in public life, he was dignified and firm.
Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners.
These words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law’s integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and falter. At the end of it all, I could hope for nothing more than to be described as he was. If confirmed, I pledge that I will do everything in my power to be that man.
Should we confirm Gorsuch?