by Steve Timmer

Apr 3, 2017, 10:30 AM

DJ has a sad

D.J. Tice may be excused for fawning over Supreme Court nominee, the great wooden cigar store Indian, Neil Gorsuch. D.J. criticized (with some justification) the grandstanding Democrats and the blubbering, grandstanding Republicans at the recent hearing on the Gorsuch nomination. To me, the reason that Gorsuch should be rejected is not because of a frozen truck driver, although his decision in that case, described in the Tice op-ed, was petty and pedantic. The real reason is that Gorsuch is disingenuous in his stated approach to judging. Here are just a couple of grafs from the Tice piece:

[  ] “Under our Constitution,” he explained in his opening statement, “it’s for [elected legislative bodies], the people’s representatives, to make new laws … and for neutral and independent judges to apply the law in 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 … would be at risk.”

For originalist-textualist judges like Gorsuch, it is precisely because judges refrain from always doing what they think is right, and instead follow democratically made law wherever it leads, that self-government can be real.

And he fooled Dougie, too.

Gorsuch seeks to sit in the creaky leather chair vacated by the original originalist, Antonin Scalia. Originalism-textualism is really, though, just sanctimonious baloney. I will have an example in a minute.

One of the first things you do in law school is learn how to interpret statutes (and constitutions, too). The first rule is: read it. It if describes the facts at hand, you apply the statute or constitutional provision.

But it’s rarely that simple. Because lawmaking, and constitutional drafting, too, are human enterprises, it is inevitable that ambiguity will creep in and contingencies will be unconsidered. Or in the case of the Constitution, for example, some matters may have been handled in a certain way under English law at the time the Constitution was written, and perhaps the drafters intended it that way, too, or maybe not.

Anyway, it is too clever by half to claim that the law is simple and just needs to be applied impartially.

If there is ambiguity or uncertainty in the application of a law or clause, a court will resort to canons of construction, and examine contemporaneous materials — the speeches or writing of drafters, committee reports, etc. — and review precedent, that is what other courts have said about the meaning of the law or clause.

But it is always in the service of trying to find the lawmakers’ or drafters’ intent.

Did the drafters of the Constitution and its amendments mean to deal with subjects comprehensively: due process, equal protection, freedom from unreasonable searches and seizures, etc.? Of course they did.

It doesn’t answer, for example, to say, electronic wiretaps and interception of voice and data traffic are permitted because the Founders never thought of them. Maybe it does for Neil Gorsuch, but if so, he’s a fool.

Conservative judges who like to wear the holy cloak of Originalism-Textualism feel free to discard it when it suits, too. Exhibit A is the Heller case from a few years ago that held that an individual right to own a handgun existed under the Second Amendment, which reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There was a couple of hundred years of jurisprudence holding that an individual right to own a gun did not exist under the Amendment. That was Chief Justice Burger’s opinion, too.

In writing the opinion in Heller, Justice Scalia summoned all his reserves of modesty and wrote the predicate phrase, “A well regulated Militia, being necessary to the security of a free State,” right out of the amendment. Note also it says “free State,” not free individual. The Amendment also says “the right of the people” not the right of a person. This is not adhering to the text.

Contrast this with the text of the Fifth Amendment to the Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]

What are we to make of this? Hmmmmm. Perhaps Tony was an originalist medium, and he was able to communicate with the Founders in a way that two hundred years of judges never could before. Impressive.

Or maybe Tony is was a textualist who just didn’t read that well. At all events, he didn’t figure out, or more likely didn’t want to, that the Second Amendment was protecting the right of a State to keep a militia, and that it was a collective right that was being protected, not an individual one. The militia business was important to some states, especially the southern ones, who were worried about things like slave rebellions and were worried about the federal government taking away the right to form up a posse to chase runaway slaves.

If you are looking for a real activist judge, look no further than Tony Scalia.

Intoning originalism and textualism is just an act of pseudo-humility, justifying the conservative result when it does, and discarding it when it doesn’t. That’s what you’re getting with Neil Gorsuch.

Update 4/4: Here’s Gorsuch from his hearing when asked by Sen. Lindsey Graham what he would have done if Trump had asked him to overrule Roe v. Wade (which Trump says he wants judges to do):

Gorsuch: “Senator, I would’ve walked out the door. Not what judges do.”

Asked if he thought it was the right decision all those years ago, he declined to reply.

Gorsuch: “I’m not in a position to tell you whether I’d personally like or dislike any precedent. That’s not relevant to my job. To come in and think that just because I’m new or the latest thing I’d know better than everybody who comes before me would be an act of hubris.”

The last remark is, of course, exactly what Tony Scalia, the candidate’s originalist tin god, did in the Heller case, described above.

And the answer is also manifestly weasel-y. When you sit on the Supreme Court, you don’t just follow precedent (your own!), you get to make new ones.

It is also absurd to think that there wasn’t a lot signaling, significant looks, heavy sighing, and other dramatics that took place when the subject was discussed.