I can safely predict that you will be more than sick and tired of originalism / textualism / strict constructionism / original intent / original meaning and judicial activism by the time that Trump’s first Supreme Court nominee, Neil Gorsuch, has been dispatched – or not – as the newest member of the Court for Life. Don’t worry, I’m not going to try to persuade you one way or the other with respect to Mr. Gorsuch. And it may come as some surprise to those of you who have rightly identified me as a left leaning, progressive Democrat of the rascal, yeller dog variety, that I believe the prez should be given quite a wide latitude with respect to his nominees to the Court…no matter how painful the result may be. Yes, I got it that there has to be a certain amount of to-ing and fro-ing as a part of the political theatre that has come to be the norm for this confirmation process. And in light of the Repubs refusal to even give Obama’s last nominee a hearing, I can understand the need for more than a little grousing from the Dems.
I don’t want you to just trust me on this, so let’s go to the source. Article II, Section 2, of the Constitution says simply that “He (the prez) shall nominate, and by, and with the Advice and Consent of the Senate, shall appoint…judges of the Supreme Court.” That’s it. No qualifications required. No age, no gender, no ivy league education mandated. Not even a law degree. Presumably the nominee would be a citizen, but as to the “advice and consent of the Senate,” I guess the prez could nominate pretty much anyone or anything, including a three-legged dog and expect to get him confirmed. And that’s how it has turned out over the years…well, excepting Robert Bork. BTW there is nada for guidance on what constitutes “Advice and Consent.” But we do know this…the process by which Advice and Consent is arrived has become a torturous process that consumes an infinite amount of air time and column inches, as well as unmeasurable quantities of hot air expelled by the givers of said Advice and Consent. Let’s see. When William Brennan was nominated in 1956 by Ike, it took the Judiciary Committee three hours (barely enough time for opening statements today) to determine that he was qualified. It took seven hours for the Judiciary Committee to vet and approve William Rehnquist in 1972, even though he had more than a little problem with the truth on some matters, but John Roberts and Elena Kagan required over twenty hours of mostly disrespectful grilling. Hmmm? Go figure. Were Roberts and Kagan more dubious characters than, say, Clarence Thomas? I doubt it.
Obviously, politics unfortunately looms large on the stage of political theatre…which is what these hearings are all about. And now we will have to suffer god knows how many hours in an effort to discern where Gorusuch lies on the ideological spectrum between the recently departed and sanctified Antonin Scalia (darling of the originalism crowd) and Ruth Bader Ginsberg (queen of judicial activism). We should not be surprised when a president selects one with his own ideological leanings as a nominee. Thus, when Trump nominated Gorsuch, we can be sure that it validated Trump’s judicial philosophy of original intent, or was it original meaning…or maybe it’s his penchant for textualism within the context of originalism… Yeah, you bet. I’m pretty sure Trump doesn’t know the difference between strict constructionism and a Swedish meatball. And furthermore, he doesn’t care. The Federalist Society – Reince Priebus, Steve Bannon and a partridge in a pear tree – whispered, “Gorsuch” in his ear, and, presto-chango, Gorsuch it was.
Yes, originalism will get a lot of play in the upcoming hearings, if only because Scalia was its godfather, and, of course, we need someone in the image of Scalia to replace Scalia…maybe without the opera. Oddly, the term and the judicial philosophy of originalism did not come into currency until the mid-1980’s. These were the Reagan years, and lots of strange ideas were floating around. Now we have a new poster boy for a judicial concept that almost no one understands and absolutely no one can explain. But if you parse it down to the basics: the Court should be guided only by how it (the Constitution) was originally written. Huh? Whazzat? I don’t know if you’ve recently read anything written circa 1789, but it might just sound a little strange. And then there’s the context of the times. When TJ and a few other old white dudes were writing in Article 1, Section 8, Clause 3, that, “the United States Congress shall have the power to regulate commerce with foreign nations, and among the several states and with the Indian Tribes…,” do you think he really believed that commerce with the Indian Tribes would be a big issue for us going forward? For christ’s sake, they didn’t even have casinos then. Or how about the “great compromise” language, wherein our founding worthies agreed to count slaves (other persons) as 3/5 of a person for purposes of apportionment. Did we get the “original intent” right? Is there any question as to the “original meaning” and “strict construction” of “other persons”? Oh, you say, things have changed. Yep. You bet. We now have toaster ovens and no longer have slaves.
I’ve never heard the big lie put to the “original intent” discussion any better than a call-in guest to one of the NPR shows recently. Cut me a little slack here, as I don’t have her exact words, but, in essence, she said, Why should she give a flip about the original intent of anything written by a bunch of old, white guys who constitutionally permitted slavery and denied the right of women to vote? You gotta admit that she’s got a point there. I’d loved to have been a fly on the wall when Madison and Hamilton, for example, discussed the “original intent” of the 8th Amendment, which says in part, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted….” I don’t know what was considered to be excessive then, but I’d bet a lot that what Madison thought was excessive then and what a young black man busted for selling some crank thinks excessive today would be considerably different. I can just hear the echo: Hamilton, “James, don’t you think that putting one in stocks and flogging them may be a bit ‘cruel and unusual?'” Madison, “No way, we do it all the time down in Virginia and no one’s ever complained.” Hamilton, “What about hanging?” Madison, “Been doing it for years, it’s a good way to get rid of the bad apples.” Obviously, something has changed. The 8th amendment now is clearly understood to preclude flogging, and hanging is also out…but giving someone a toxic cocktail of chemicals to kill them while “witnesses” watch is now okay. BTW, the last “judicial” flogging was mandated and took place in in Delaware in 1952. So much for “original meaning.” Just how did flogging, relying on the constitution in 1790, move from being accepted practice by the body politic, to now being determined to be “cruel and unusual,” when the 8th amendment stands intact with no changes?
But the best example of all is the Plessy v. Ferguson case of 1896 which validated the concept of “separate but equal” as it applied to the attendant rights of the negro race. But in 1954, the ruling of the Supreme Court in Brown v. Topeka Board of Education found that Plessy was no longer valid. Separate schools for blacks was contrary to the Constitution and would no longer be tolerated. It was unconstitutional. In the interregnum between 1896 and 1954, the Constitution did not change. It was, in 1954, exactly what it was in 1896, yet Brown completely changed the rules of the road, with respect to race in America, that had been more or less constant since 1787…or maybe better said, since the end of slavery in 1865. The Court had now determined that the “original intent” of the Equal Protection Clause of the 14th Amendment to the Constitution precluded the use of the Plessey doctrine of Separate but Equal. Hmm. The “original intent” changed. But how could it? Original is original, isn’t it? No, of course not. What changed was the views of society regarding racial relations in America, and the Court’s view reflected that change. In the view of the Court, what ever the “original intent” of the framer’s of the 14th Amendment didn’t matter. What mattered was what was right today. And thank god they reflected that in their ruling.
So perhaps the best we can do with Mr. Gorsuch, is to focus less on his judicial philosophy and more on him as a human being. What kind of person is he? Is he well educated? Does he have the requisite experience? Is the sum of his life, lived to date, reflective of the kind of person we should trust to render legal judgements on the construct of our government and on fellow human beings? If we can figure out the answer to those questions, the vote ought to be pretty easy.