Government works by consensus of the people and if they don’t support the rule of law the foundations of our democratic institutions are endangered no matter who’s at the top of the mountain. There’s a reason Justices are appointed for life and that’s to allow them the ability to render judgments free of partisan considerations.
On Saturday, Mike Pence, President Trump’s V.P., lauded Trump’s, alleged, determination to appoint justices who protect America’s God given rights to life, liberty, and the pursuit of happiness. The negative pregnant of his comment is that some justices do not support God, nor the rights of the citizens of this great country. This is a dangerous notion and one that doesn’t encourage respect for the Court, or the nation.
The liberal Mr. Justice William O. Douglas, 1898-1980, was once described by Time Magazine as the most doctrinaire justice ever to sit on the high court. He, also, was the longest serving, at nearly 36 years. Douglas drew lauds and brickbats so fierce that the New York Time, once, called him a “dirty rotten hero.”
Justice Scalia had his own intractable dedication, his to a fixed conservative ideology but never, in his own applications of the law, did he approach “Wild Bill’s” reputation as a proponent of individual rights. Douglas, after his retirement, was replaced by President Gerald Ford with Justice John Paul Stevens, a moderate. There were few, if any, calls that Bill should be replaced by the kind of civil libertarian he’d been in his long tenure. President Reagan, showing his wisdom, after earlier failed nominees, appointed Anthony Kennedy as a Justice palatable to liberals and conservatives, alike.
Regrettably, both sides of the aisle, currently, have advocated for a court they envision as more of a partisan body than a dispassionate one. This is not what the founders intended though, sometimes, picks veer from their previous political dispositions. Ike said that putting liberal Chief Justice Earl Warren, one-time conservative California Governor, on the court was his biggest mistake.
Part of the inherent difficulty in appointing justices, today, is the extreme polarization of the country though it, arguably, predated this past election. Depictions of a nation that’s utterly dependent for its survival, morally, politically, and economically, on its high court pronouncements demeans the legislative and executive branches of government, as well as the court, itself.
Another argument used in favor of Judge Gorsuch is that the President has the right to appoint justices of his choosing as provided for in the Constitution. This is correct. It’s ironic, however, that among this propositions most ardent proponents are the same people who blocked the nomination of President Obama’s last pick, Merrick Garland, a moderate, whose vote was kept on ice until his nomination lapsed when a new president was elected. Retaliation against the Republicans for this constitution-thwarting partisanship is tempting but, also, wrong. The people deserve a full court.
What could disqualify Gorsuch is the distasteful activity of unknown person(s) who are supporting his nomination with millions of dollars being spent on TV, and other ads. When asked where this money is coming from, and who put it up, Judge Gorsuch told his Senate questioners that he didn’t know. If this is true he should be disqualified for a lack of curiosity and if he does know, but won’t say, that is even more of a disqualification.
There is one other potential disqualification. Gorsuch says that Supreme Court decisions must be made on a strict reading of the letter of the law. This literalist interpretation, however, ignores the traditional American notions of fair play and substantial justice found in the 14th Amendment to the Constitution. They are known, in the law, as equity and encompass equal protection. Equity is determined on a case-by-case basis that, often, defies black letter law.
Notions of fair play and substantial justice, according to the needs of the times, come from the heart. Where a man’s heart lies, as King Solomon demonstrated, is the ultimate test of his, or her, fitness to sit in judgment over the people and that should be the most important criteria for any new justice. If Gorsuch passes this test he should be confirmed.