The politics of the judiciary

Excellent column from EJ Dionne on Gorsuch.  The man is surely qualified, but he is disingenuous as hell about this (kind of like Roberts and his ridiculous and no-relationship-to-reality “balls and strikes” line).  EJ:

With a shrewdly calculated innocence, Judge Neil Gorsuch told a big fat lie at his confirmation hearing on Tuesday. Because it was a lie everyone expected, nobody called it that.

“There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said.

Actually, allow me to first mention that Gorsuch said “Democrat judge” on several occassions.  That’s how Fox News viewers talk, not genuinely non-partisan people.  That’s a hell of a tell.  Anyway…

We now have an ideological judiciary. To pretend otherwise is naive and also recklessly irresponsible because it tries to wish away the real stakes in confirmation battles.

The best scholarship shows an increasingly tight fit between the party of the appointing president and how a judge rules. It’s a point made in “The Behavior of Federal Judges ,” by Lee Epstein, William Landes and Judge Richard Posner, and also in research by Neal Devins and Lawrence Baum. [Just for the record, Lawrence Baum is a hell of a guy]

Face it: If partisanship and ideology were not central to Supreme Court nominations, Gorsuch would be looking at more years in his beloved Colorado. Notice that I referred to the Supreme Court seat as belonging to Garland, the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, nominated by President Barack Obama to replace the late Antonin Scalia. In an appalling act of extreme partisanship, the Republican-led Senate would not even give Garland a hearing.

It’s frustrating that so many minimize opposition to Gorsuch as merely the payback for Garland the Democratic base yearns for. This content-free way of casting the debate misses what’s really going on: Thanks to aggressive conservative jurisprudence, we have a Supreme Court that, on so many issues, continues to push the country to the right, no matter which party controls Congress or the White House.

The reason Republicans wouldn’t even let the moderately liberal Garland make his case is that conservatives who regularly denounce “liberal judicial activism” now count on control of the Supreme Court to get results they could never achieve through the democratically elected branches of government.

They could not gut the Voting Rights Act in Congress. So Chief Justice John G. Roberts Jr.’s court did it for them. They could never have undone a century’s worth of legislation limiting big money’s influence on politics. So the Citizens United decision did it for them.

Preach it, EJ!

And, while I’m at it, I’ve always hated “originalism” and “textualism” is they are as inherently subjective as any other interpretive framework, and I think particularly ill-suited for interpreting a 200+ year old document for the moderm world.  Thus, loved this Op-Ed from law professor Ken Levy:

Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow…

But Justice Scalia failed to realize that textualism is actually self-undermining. Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions…

The meanings of many words and phrases in the Constitution are not at all obvious. Examples include “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection.” Even if we could find clear definitions of these terms in a dictionary, current or historical, applying these definitions to cases that the founders did not anticipate only expands the range of ambiguity (and therefore interpretive possibilities).

I’m a big fan of Levy’s argument for principled pragmatism:

Contrary to Justice Scalia and his many disciples, there is a third way to interpret the Constitution, beyond textualism (and originalism) and pure subjectivism: principled pragmatism. Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision. Once these additional factors are taken into account, they may still point in the same direction as the ratifiers’ intent. But they may also point in a very different direction.

Anyway, Gorsuch will surely regularly rule in keeping with his own conservative ideological priors and use “originalism” to justify it.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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