“A judge who likes every outcome he reaches is very likely a bad judge.”
During the presidential election, many conservatives who were unsettled by the prospect of Donald Trump becoming president felt the only way they could justify voting for the brash billionaire was to “save the court” by filling the empty Supreme Court seat left open by the passing of Antonin Scalia. Mr. Trump promised to nominate a justice that would be “in the mold” of the late intelligent and Catholic constitutionalist–someone who would interpret the constitution as it was originally intended without the filter of recent events or modernism.
Last night President Trump announced he would be picking 10th Circuit judge Neil Gorsuch. Gorsuch, if confirmed, would be yet another win for the Culture of Life™ in Washington DC and would also be a win for constitutionalism. Gorsuch, a Christian, while not writing expressly on abortion, has written extensively on his positions on issues relating to euthanasia and has defended Little Sisters of the Poor and Hobby Lobby against the Obamacare mandates that they pay for contraception and abortifacients.
Quoting from Vox on these issues:
Gorsuch, who wrote a full book on assisted suicide and euthanasia that, while fairly recapping both sides, came down decisively against legalizing the practice. In the book, Gorsuch offers a detailed critique of Peter Singer’s influential utilitarian argument for allowing euthanasia and of a similar one from fellow Circuit Court Judge Richard Posner, as well as critiques of autonomy-based arguments from philosophers like Ronald Dworkin.
Gorsuch argues for the position that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” He insists this is a secular principle that one need not be religious to embrace. It’s not hard to infer what this implies for Gorsuch’s attitudes on abortion, despite his never stating clearly his views on Roe v. Wade and the like in the book.
Gorsuch’s thoughtful approach on the issue of assisted suicide is extremely important in a time when more states are pushing to allow doctors to aide their patients in killing themselves. It’s a terrifying time when a government starts rationalizing the killing of citizens in the name of mercy and this helps block the efforts of the pro-death culture that has, until now, been prevailing in DC. Continuing from the Vox article:
Gorsuch takes a very broad view of religious freedom, and in two separate cases (one of which was the famous Hobby Lobby case) backed religious challenges to the Affordable Care Act. “No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg,” he wrote in a concurrence. “No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.” Under the Religious Freedom Restoration Act, Gorsuch argued, the government must give broad deference to religious groups’ explanations of what their beliefs entail, even if those explanations seem inconsistent or unscientific.
Given how controversial Hobby Lobby remains among reproductive rights activists, expect Democratic senators to raise that issue repeatedly during Gorsuch’s confirmation hearings. In fairness to Gorsuch, he also ruled in favor of a Native American prisoner in another religious liberty case, indicating his views on this aren’t limited to Christians.
In a trio of cases, Gorsuch has argued for the constitutionality of religious expression in public spaces, including in cases where only one religious tradition is represented (as in the display of a donated Ten Commandments monument). He has argued against the “reasonable observer” test for determining if religious displays are unconstitutional, writing that the test too often results in the rejection of religious displays that were not intended to signal that the government is endorsing one religion or another.
Beyond the Culture of Life™ issues faithful Catholics will be happy to hear about, Gorsuch also would serve as an anchor of objectivity on the bench. The Constitution is the most keen analogy America has to objective Natural Law and it is important that the Constitution remains an immovable buoy regardless of the passing fads and fashions of our generation. As the Roman Catholic Church anchors the world by interpreting unchanging Natural Law, the United States Supreme Court should anchor our country by properly interpreting the unchanging constitution. Whether it be Christ’s Church or a country, nothing can stand if built on always-shifting sands of relativism. As such, this is why Christianity is built upon its “rock”, Peter, and America is built upon its rock, the constitution. This is the way it seems Neil Gorsuch views the Constitution. He, too, is like Scalia in this regard and the Vox article goes on to discuss this:
Like Scalia, he has shown a willingness to occasionally side with defendants on criminal law matters. He sided with a Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school police officer and other employees are immune from lawsuits. In one 2012 dissent, he argued against applying the federal law banning felons from owning firearms to a defendant who had no idea he was a felon. And he’s expressed concern with overcriminalization, saying that states and the federal government have enacted too many statutes forbidding too much activity.
…what sets Gorsuch apart from other Supreme Court hopefuls is the high intellectual esteem in which he’s held by fellow judges and legal academics. That raises hopes among conservatives that whatever his jurisprudential overlap with Scalia, he would bring the same literary flair and intellectual firepower to the Court that Scalia’s admirers believe he did. And for liberals, that will likely provoke fears that he could wield similar influence to Scalia on the right bloc of the Court, and on conservatives in lower courts.
Beyond its personal encomia devoted to Scalia, [Gorsuch has a] fundamental approach to interpreting law and the Constitution, which is very similar to the late justice’s. Both are textualists, concerned primarily in the literal text of laws and less in their legislative history or social context of passage.
There’s also an argument that Gorsuch may have some influence with Justice Kennedy who sometimes sides with the progressive side of the bench:
…he would be the first justice ever to serve alongside a justice for whom he clerked, namely Anthony Kennedy. That gives conservatives some hope that Gorsuch will be able to sway Kennedy on crucial cases, solidifying the conservative bloc and ensuring a 5-4 conservative majority on key issues.
In normal times, Gorsuch should be a safe pick for confirmation as he was easily confirmed after President George W. Bush appointed him to the 10th Circuit Court of Appeals by both Republicans and Democrats. However, we don’t live in normal times anymore and Democrats vow to battle and block anyone Trump nominates.
Also worth noting is that he is a Colorado native, a man of the ‘flyover states’ unlike the rest of the bench (even though he was educated at Columbia and Harvard). At 49, Neil could also be on the bench for over thirty years which terrifies the left who wishes the court to be as progressive as possible. Gorsuch will need many prayers to get past the inevitable confirmation battle and to, hopefully, get 60 votes (which would be ideal).
Saint Thomas More, pray for Gorsuch and America’s courts. ☩