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Saturday, March 25, 2017
In Gorsuch Hearings, Democrats Blow It on Originalism
As the hearing for Judge Neil Gorsuch wrapped up on Thursday, one theme stood out strongest: Gorsuch is not even the main actor. Rather, the starring role was shared by those in the Democratic Party, who, put simply, do not understand originalism – nor, quite possibly, even the Constitution.
It is not likely that the Democrats were looking to showcase their woeful ignorance of a judicial philosophy. Then again, this is a party in deep trouble, though you wouldn't know that by asking its members. There is perhaps no one who better illustrates this than Edward-Isaac Dovere in "Democrats in the Wilderness," written for Politico.
With all their failings, the Democrats are looking to play the political game – that is, they want to make Gorsuch, who was confirmed to the 10th Circuit Court of Appeals by a unanimous voice vote, look bad at all costs. This involved reminding him that he's not Judge Merrick Garland, as if Gorsuch didn't already know that and could do anything about it. To his credit, Gorsuch thinks "the world of Merrick Garland" and he is "an outstanding judge."
Almost just as petty, Democrats jumped at the opportunity to ask Gorsuch about his views, as if being an originalist meant he would be against the LGBT community. The clear winner with this technique was Senator Al Franken (D-Minn.) – and fittingly so, considering his role as an entertainer.
Not only did Gorsuch not take the bait, including and especially from Senator Dick Durbin (D-Ill.), but he showed off the fitting nominee he is: one who has a healthy grasp on how it is not so much his personal beliefs that matter, but his judicial philosophy that guides his decisions. What Democrats did do well is demonstrate that they can't fathom having to separate the two.
On the first day, ranking member Senator Dianne Feinstein (D-Calif.) lambasted the originalist view, admitting that her beef was "personal." She finds uch a "judicial philosophy" "really troubling." She described how "it means in essence that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789." To prove her point, Feinstein referenced enslaved African-Americans and women.
She claimed that this view would "ignore the intent of the Framers, that the Constitution would be a framework on which to build," and that "it severely limits the genius of what our Constitution upholds."
Feinstein's examples would prove the flaws of originalism if only she had not left out a glaring omission: the constitutional amendment process. One could find perhaps no better originalist than the late, great Justice Antonin Scalia, as President Donald Trump likes to call him. Scalia was a promoter of the constitutional amendment process, which has acknowledged and enshrined the rights of women and black Americans.
What is Feinstein's alternative? "I firmly believe that the American Constitution is a living document, intended to evolve as our country evolves," she said. One can only surmise that it is up to judges to decide not merely what the law says, but, if they don't like it, what the law ought to say.
Senator Amy Klobuchar (D-Minn.) could also not help showing off her gross misunderstanding.
Gorsuch not only sailed through such questioning, but cleared up for Klobuchar that he is "not looking to take us back to quill pens and horse and buggies." She had asked:
So when the Constitution refers 30-some times to 'his' or 'he' when describing the president of the United States, you would see that as, 'Well back then they actually thought a woman could be president even through women couldn't vote?'
A Supreme Court nominee should not have to defend how he believes that women can be president. In the end, it worked to Gorsuch's advantage, as it showcased his likability. "Of course women can be president of the United States," he said. That wasn't even the best part. "I'm a father of two daughters, and I hope one of them turns out to be president of the United States."
Being an originalist does not require an insistence that the Constitution is not open to change, but rather an insistence that changes be done through the proper process. What it does mean is that judges do just that: they judge. What they don't do is use their own political beliefs to change the law to fit their view of what the law should be. It is not exaggeration to warn that doing so threatens the very framework of the separation of powers, as unelected judges insert themselves into roles designed exclusively for the legislative branch.
It is telling for Democrats to have exposed themselves in such a way. It could spell doom for the Democratic Party and its future, at least with their influence on the judiciary. There is another worse option, however, for generations to come, if decisions are made by activist judges who will interpret and evolve the Constitution for their own political and personal gains. In other words, a Democrat's dream.
Rebecca Downs has had her writing published at several outlets, mostly pro-life. You can find her on Facebook.