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Questions for Judge Gorsuch
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I have spent this past week watching the Senate Judiciary Committee interrogating U.S. Circuit Judge Neil Gorsuch. Judge Gorsuch is President Donald Trump’s nominee to fill the vacancy on the U.S. Supreme Court. The vacancy was created by the death of Justice Antonin Scalia more than 13 months ago. The Supreme Court is currently generally divided between four liberals and four conservatives. As a justice, Gorsuch would probably break many ideological ties.

During the hearings, Republican senators are doing their best to associate Judge Gorsuch with the popular-in-death Justice Scalia, and Democratic senators are doing their best to try to pin down Gorsuch by making him commit publicly to positions on hot-button issues, such as abortion, gun rights and the use of unrestricted money in political campaigns. Gorsuch has accepted the Republican sobriquets and declined to answer Democratic inquiries with specificity. So, are the hearings of any real value?

Here is the back story.

Prior to the partisan efforts to block the nominations of the late Judge Robert Bork and now-Justice Clarence Thomas to the Supreme Court, the Senate’s “advice and consent” role was mainly limited to a cursory examination of a nominee’s qualifications for office. The Bork hearings succeeded in derailing his nomination by portraying his philosophical views as outside the mainstream of legal thought. The Thomas hearings, which failed to block the nomination, centered on the nominee’s alleged personal shortcomings, which were directly challenged and mainly refuted.

My point here is that since these two hearings in 1987 and 1991, the Senate Judiciary Committee has felt unleashed to probe and prod into any area it sees fit, and the nominees have become unleashed to answer only the questions that they think will advance their nominations.

In the Gorsuch hearings this week, the nominee has argued that should he commit to certain positions on issues, it would not be fair to litigants who might come before him as a circuit judge if his nomination were not to be confirmed or before him in the Supreme Court if it were, as those litigants would have a proper belief that he prejudged their cases. “It would be grossly improper,” he argued, for him to commit in advance to how he’d vote on any issue. He’s correct.

So, what questions could both Democrats and Republicans put to him and what questions could he answer that would inform their judgment and illuminate his thinking without committing his judgment?

It should come as no surprise that Gorsuch is a traditionalist. The folks who offered his candidacy to the president — and I played a small role in that process — spent weeks examining all his public writings, as well as his speeches and lectures, so as to enable them to conclude safely that his 10-year track record as an appellate judge could fairly be a barometer of his likely behavior as a Supreme Court justice. In the process of that examination, the researchers found many similarities in ideas, tone, attitudes and word choice to Justice Scalia.

The essence of that similarity is an idea called originalism. Though there are many variants of originalism, it generally advances the idea that the meaning of the Constitution was fixed at the time it was ratified and therefore its words mean the same today as they did to those who ratified it; and the same is the case for its 27 amendments.

This fidelity to original public understanding drives judges to the text of the Constitution and the laws — not the principles that underlie the text, not the politics that produced the text, not the social ills the text seeks to cure but the words chosen by the drafters of the Constitution or of a statute, as the case may be. This is not just an obscure academic argument. Originalism, if followed religiously, leaves judges and justices to the narrow role of interpreting the plain text of the Constitution or laws as they were understood when enacted, irrespective of the consequences.

Originalists believe that social progress and new legal structures should come about by the acts of Congress and the president, who are elected for that purpose, rather than by the rulings of unelected, unaccountable judges. If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.

Yet originalists argue that federal jurists are the least equipped to advance social progress; they are often old, are never elected and have no accountability to the public.

Thus, it is on this philosophical fulcrum, more than on any other, that senators should examine Judge Gorsuch’s thinking. In this context, they can also ask him whether our rights come from the government or from our humanity. They can ask how he views fundamental liberties. Can the court pick and choose which rights are highly protected from government interference and thus are difficult for the government to regulate and which are not? If privacy and travel — neither of which is mentioned by name in the Constitution — are fundamental liberties, why isn’t freedom of contract, which is mentioned by name?

On these issues alone — originalism and fundamental liberties — the senators could find from his answers a blueprint to his thinking, and Judge Gorsuch could reply in meaningful ways without prejudging any cases.

ORDER IT NOW

But the Senate is a political body, and its members are politicians. One of the reasons Justice Scalia gave for rejecting as an interpretive tool the statements made by members of Congress when they passed any legislation under scrutiny is the truism that politicians have only one goal in their work, no matter what they are saying — to get re-elected. The senators examining Judge Gorsuch are probably more concerned with that than with doing the right thing for the court. I hope that in this respect, I am wrong, as I have been before.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Supreme Court 
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  1. If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.

    Whoa, judge. School desegregation and forced busing has been unmitigated disasters that have destroyed countless formerly white public schools and poisoned race relations. By what metric has each race benefited by copious contact with one another in the school system?

    Since when did forcing the races together, which violates freedom of association as understood by the majority of Americans, elected officials and courts prior to the communist inspired civil rights movement, become worthy of libertarian support?

    Read More
    • Replies: @KenH
    Actually pre-Brown vs. Board of Education. Then the national guard forcibly integrated public schools in Little Rock, Arkansas in "free" Amurrica.

    Whatever happened to liber-tee?
    , @Pat Boyle
    Of course KenH is entirely correct. America made a serious mistake when it embraced desegregation. That decision will be reversed but probably not soon.

    In a few years reform will probably start on the fringes. The current situation is that whites are everywhere vulnerable to black thugs and criminals. Whites will need some places where they can be safe from negroes. That will mean that some public places will be required to exclude blacks. Blacks won't like that.

    Think about it. We all live in the future that was described in Science Fiction stories. But what Sci-Fi vision of the future included negroes who robbed and rioted routinely and demanded the right to prey on older, weaker white people?

    About 75% of all Sci-Fi scenarios are dystopian but none (as far as I know) has predicted an America where white people scuttle about trying to avoid the dangerous black people. The America that we have stumbled into is not simply bad - it's unsustainable.

    , @Fran Macadam
    One might well argue, as the Devil's originalist, quoting Constitution to his own lese majesty, that Sundown Towns were a legitimate practice of freedom of association. On the other hand, one might call it violating that, by forcing the races apart against their will.
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  2. @KenH

    If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.
     
    Whoa, judge. School desegregation and forced busing has been unmitigated disasters that have destroyed countless formerly white public schools and poisoned race relations. By what metric has each race benefited by copious contact with one another in the school system?

    Since when did forcing the races together, which violates freedom of association as understood by the majority of Americans, elected officials and courts prior to the communist inspired civil rights movement, become worthy of libertarian support?

    Actually pre-Brown vs. Board of Education. Then the national guard forcibly integrated public schools in Little Rock, Arkansas in “free” Amurrica.

    Whatever happened to liber-tee?

    Read More
  3. @KenH

    If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.
     
    Whoa, judge. School desegregation and forced busing has been unmitigated disasters that have destroyed countless formerly white public schools and poisoned race relations. By what metric has each race benefited by copious contact with one another in the school system?

    Since when did forcing the races together, which violates freedom of association as understood by the majority of Americans, elected officials and courts prior to the communist inspired civil rights movement, become worthy of libertarian support?

    Of course KenH is entirely correct. America made a serious mistake when it embraced desegregation. That decision will be reversed but probably not soon.

    In a few years reform will probably start on the fringes. The current situation is that whites are everywhere vulnerable to black thugs and criminals. Whites will need some places where they can be safe from negroes. That will mean that some public places will be required to exclude blacks. Blacks won’t like that.

    Think about it. We all live in the future that was described in Science Fiction stories. But what Sci-Fi vision of the future included negroes who robbed and rioted routinely and demanded the right to prey on older, weaker white people?

    About 75% of all Sci-Fi scenarios are dystopian but none (as far as I know) has predicted an America where white people scuttle about trying to avoid the dangerous black people. The America that we have stumbled into is not simply bad – it’s unsustainable.

    Read More
    • Replies: @pepperinmono
    It is really an amazing fact.
    One that we have become immune to because we are living it.
    100 years from now, people will be shocked that in 2017 America, there are are large areas in most major cities where Whites simply cannot go without fear for their lives.
    It is really quite astounding.
  4. The problem lies in the concept of judicial review. In other words, the Supreme Court made itself final arbiter as to the Constitutionality of laws passed by Congress and signed by the President. By doing so, the court usurped the authority of Congress over the court itself.

    Nothing explicit or implicit in Article 3 gives power to the Supreme Court as the final arbiter of the Constitutionality of law passed by Congress and signed by the President. As a matter of fact, such a law is, by definition, Constitutional. This is exactly how laws were intended to be passed and executed. The Supreme Court is, by Article 3, the final arbiter as to if the law is applied equitably to those at suit as written.

    However, Judge, one cannot honestly call jurists who upend the Constitution to bring about perceived social justice as courageous when one purports to be an originalist. The changes, whether school de-segregation or whatever other social injustice of the time, are within the powers of Congress, in conjunction with a Presidential signature or a veto override, to implement.

    Read More
  5. The problem lies in the Constitution and its use as a political tool.

    America is a federation of 50 states. A Constitution should do more than define the branches of government, stipulate basic individual rights, and have done. All current and applicable laws should be established and enforced at the state level.

    Read More
  6. “Can the court pick and choose which rights are highly protected from government interference and thus are difficult for the government to regulate and which are not? If privacy and travel — neither of which is mentioned by name in the Constitution — are fundamental liberties,”

    The clown still doesn’t get it.

    The Constitution authorizes certain actions by the Federal Government. if Privacy and Travel are not mentioned then the Government is not authorized to do anything to or about them.

    Read More
  7. Thus, it is on this philosophical fulcrum, more than on any other, that senators should examine Judge Gorsuch’s thinking. In this context, they can also ask him whether our rights come from the government or from our humanity.

    Nowhere in the constitution does it grant the federal government the general power to define civil rights or to protect civil rights.

    The 9th amendment declares that the people, not the federal government or humanity, define civil rights.

    The 10th amendment declares that the state government, not the federal government, have the general reserved power to protect civil rights.

    Bill of Rights and the constitution were created by people representing their state governments.

    Modern federal judges would have you falsely believe the state governments and the constitution were created by the federal government.

    Modern federal judges are disingenuous because they are appointed by US presidents and senators that are elected to office by the ignorant and grasping masses of diversity. One solution is to repeal the 17th amendment.

    Read More
  8. @KenH

    If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.
     
    Whoa, judge. School desegregation and forced busing has been unmitigated disasters that have destroyed countless formerly white public schools and poisoned race relations. By what metric has each race benefited by copious contact with one another in the school system?

    Since when did forcing the races together, which violates freedom of association as understood by the majority of Americans, elected officials and courts prior to the communist inspired civil rights movement, become worthy of libertarian support?

    One might well argue, as the Devil’s originalist, quoting Constitution to his own lese majesty, that Sundown Towns were a legitimate practice of freedom of association. On the other hand, one might call it violating that, by forcing the races apart against their will.

    Read More
    • Replies: @KenH
    The freedom not to associate with a group of people is the other side of the same coin and equally as important as freedom to associate with those of our choosing. The fact that most white residents agreed with their towns being "sundown towns" means they weren't having their rights infringed. And if some whites so desperately desired companionship with blacks then they have the freedom to seek out black living spaces and settlements.

    Let's not forget that in the 21st century America most areas of major U.S. cities are "sundown cities" where whites dare not tread. In some cases we have "sun up" and "sundown" cities where whites are attacked or killed in broad daylight and at night.

  9. @Fran Macadam
    One might well argue, as the Devil's originalist, quoting Constitution to his own lese majesty, that Sundown Towns were a legitimate practice of freedom of association. On the other hand, one might call it violating that, by forcing the races apart against their will.

    The freedom not to associate with a group of people is the other side of the same coin and equally as important as freedom to associate with those of our choosing. The fact that most white residents agreed with their towns being “sundown towns” means they weren’t having their rights infringed. And if some whites so desperately desired companionship with blacks then they have the freedom to seek out black living spaces and settlements.

    Let’s not forget that in the 21st century America most areas of major U.S. cities are “sundown cities” where whites dare not tread. In some cases we have “sun up” and “sundown” cities where whites are attacked or killed in broad daylight and at night.

    Read More
  10. Andrew Napolitano was fired by Fox Jews for reporting anti Deep State news.

    Another assault on free speech. This is bad!

    Read More
  11. Napolitano:

    “Originalists argue that federal jurists are the least equipped to advance social progress; they are often old, are never elected and have no accountability to the public.”

    That’s precisely the point, lads. When a federal judge–a judge who can hold office for life!–rules according to his personal prejudices or whims, that’s dangerous.

    Read More
  12. Good afternoon Judge Gorsuch. I have just one question with a preamble which should elicit a rather expository answer on your part.

    I’m sure that you are aware (and if that’s not the case, please explain yourself) that this nation is facing several grave existential crisis of which I will not enumerate. The natures of these crisis are arguably not anything the authors of the constitution contemplated in their wildest dreams. So, where do you stand on the notion that our constitution isn’t (or shouldn’t be) a national suicide pact?

    Read More
  13. My ( teenage) nephew was spent four years in the slammer thirty years ago, in Mi, for the supposed act of armed robbery. The victim of said action stated most certainly that he was not the person who had robbed her, and that the perpertrator had been someone smaller than her, whereas he was at least a head taller than her.
    The appeals process was so time consuming that his sentence was completed before the his case came up for appeal.

    The lady judge, several years later, was removed from the bench after a investigative research revealed that she had sent myriads of innocent young men, regardless of exonerating evidence, to the big house.

    The legal profession by nature, acts as a magnetic force upon disturbed, troubled and sadistic personalities, with the inevitible results of unwarrented conviction and imprisonment of totally innocent persons, and there is no way possible to prevent the deranged “Judges” from acting out their malevolent urges, as US society, such as German society is and always has been set in a mode of “worship” of these dubious professions, and participants thereof.

    The only real solution to this dilema is : Computor judgeship, the removal of human emotion and sadistic personality quirks from the courtroom.

    Authenticjazzman “Mensa” society member since 1973, airborne qualified US army vet, and pro jazz artist.

    PS : DT’s remark = “So-called judge” hit the nail square on the head,as he obviously sees through these charlatans.

    Read More
  14. @Pat Boyle
    Of course KenH is entirely correct. America made a serious mistake when it embraced desegregation. That decision will be reversed but probably not soon.

    In a few years reform will probably start on the fringes. The current situation is that whites are everywhere vulnerable to black thugs and criminals. Whites will need some places where they can be safe from negroes. That will mean that some public places will be required to exclude blacks. Blacks won't like that.

    Think about it. We all live in the future that was described in Science Fiction stories. But what Sci-Fi vision of the future included negroes who robbed and rioted routinely and demanded the right to prey on older, weaker white people?

    About 75% of all Sci-Fi scenarios are dystopian but none (as far as I know) has predicted an America where white people scuttle about trying to avoid the dangerous black people. The America that we have stumbled into is not simply bad - it's unsustainable.

    It is really an amazing fact.
    One that we have become immune to because we are living it.
    100 years from now, people will be shocked that in 2017 America, there are are large areas in most major cities where Whites simply cannot go without fear for their lives.
    It is really quite astounding.

    Read More
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