Being Right: A Textualist by Easter

Ryan Zoellner

Nominating appellate Judge Neil Gorsuch is the most, if not the only, positive thing Donald Trump has done since being inaugurated as president. The night of the nomination announcement – which, in typical Trump fashion, read more like a rose conferral from “The Bachelor” than anything else – conservatives were on edge. In my mind, it was just as likely that Trump would  nominate a qualified candidate as it was that he would nominate a crackpot. Without question, he did the former. Gorsuch’s resume boasts degrees from Columbia, Oxford and Harvard Law, two Supreme Court clerkships and finally, a seat on the 10th Circuit Court of Appeals (his acumen as a skier and fly fisherman I will not discuss here). Senate Judiciary Committee Chairman Chuck Grassley recently put forth a timeline to have Gorsuch approved before Easter, and I sincerely hope Senator Grassley is correct; for a litany of reasons, this nomination is far from controversial.

First, any arguments that revolve around Merrick Garland’s unheard of nomination are, at this point, as disingenuous as they are impractical. Democrats did nothing to “earn” a Supreme Court nomination, and they should not be attempting to put a partisan on the court anyway. The refusal to hear Garland was sectarian, and often quite rude, but it was far from unprecedented and even further from abnormal – if put in the same situation, Congressional Democrats would have done precisely the same thing and I wouldn’t blame them. When his nomination was announced and Hillary Clinton was scorching the polls, I thought Republicans were insane to reject a qualified moderate like Garland. However, whether by luck or by some sort of supernatural prescience, this turned out to be a remarkable play, and now it’s time to move on. 

On a practical level, we should all be wary of the looming “nuclear option” (voting to rewrite the rules of the Senate to make SCOTUS nominations a simple majority) that Senator Mitch McConnell will invoke with enthusiasm if a 60 vote majority cannot be reached under the current rules. I personally feel that the adage “legislate unto others as you would legislate unto thyself” applies here, but it is difficult to ignore how useful this would be for Republicans. Trump will likely have one, if not two more SCOTUS vacancies to fill during the remainder of his term; a simple majority would green-light any number of them. 

Even if the nuclear option is not invoked and Democrats somehow manage to hold off filling the seat for four years, Trump has inherited over 100 other judicial nominations, meaning that tied SCOTUS cases will defer to likely conservative-friendly courts anyway. Failure to put past qualms behind them will almost certainly hurt Democrats and their judicial philosophy in the future.                

Judge Gorsuch has a long and illustrious history as a conservative, that is not disputed. But the fact is that for the last eleven years, he has not been a conservative, he has been an Appellate Judge of the United States of America. As soon as a person becomes a judge of any capacity, they are no longer a representative of their political views but are rather a representative of the rule of law in America. While a textualist judicial philosophy does tend to produce rulings that are favorable to conservatives, this is not unanimously true and from the textualist perspective has nothing at all to do with political outcomes; that’s the beauty of it. Gorsuch has often ruled against conservative interests and will continue to do so when the law requires it. It is quite possible and indeed laudable for a justice to think something is undesirable yet to simultaneously find it legal. That is precisely the point of the position in question and exactly what Gorsuch brings to the table.

During his Senate hearing this week, Judge Gorsuch remarked that, “Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world.” Enough said. If Americans are as concerned about the unpredictability of the Trump administration as I am, then we all have a friend in Neil Gorsuch.