President Donald Trump just took a step that could well count for more than any single thing his predecessor did or he himself will do to save our democratic republic from disintegration, to maintain the best in who and what we are, to salvage our liberty and integrity, to keep us proud and on the right track.
He nominated Neil Gorsuch to replace the late, great Justice Antonin Scalia on the Supreme Court, and here is what that means.
If he gets past the Senate, Gorsuch will consider it his job to interpret the law instead of pronouncing what it should be. He will put the Constitution ahead of his own ideological druthers. He will not try to enact a social agenda or assume the court should dictate its own overriding moral schemes to the American people as the most powerful branch in government. He will thereby help save us from the leftist goal of an almighty state whose supposedly omniscient elites increasingly dictate how we live our lives.
Here was the most important issue in the recent presidential election. With Scalia’s death, a replacement given to a less rigorous reading of what the Constitution actually means could have tilted the balance to leftward overreaching on crucial issues for decades to come, especially considering more replacements to come.
Hillary Clinton was obviously on the side of the court intervening where it did not belong. She is no fan of free political speech and, despite her insisting differently, had taken stances directly contrary to the meaning of the Second Amendment. Trump was a friend of strict constructionists as opposed to judicial activists, and polls showed that here was the main reason people voted for him.
It will also be a big reason Senate Democrats will do everything in their power to stop Gorsuch from ascension. A problem in their way, besides being the minority party, is that Gorsuch is superbly qualified as a federal appeals court judge, as someone highly educated, as an outstanding lawyer in government and private practice, and as an intellectual author. There are no scandals or hints of scandals here, no highly controversial remarks, just excellence.
The Democratic weapon, of course, will be the filibuster, a technique whereby the Republican majority can be stopped by a failure to stop the filibuster with 6o votes. The Republicans may then show their gratitude to former Democratic Senate Majority Leader Harry Reid by expanding on the filibuster-limiting maneuver he used to get some of Obama’s lower-court nominations through. At the time, there were those of us who wrote the Democrats were setting themselves up for the same kind of thing to happen to them, and, right or wrong, it just may.
The Democratic position will be that we should have a “living Constitution,” which is to say a dead one. Under living Constitution theory, it is not what a judge sees as the outdated, 18th century language of the document that matters, but suggested principles that fit modernity. But if the language no longer addresses society’s needs, we do have an amendment process. To argue that amendments are too hard to come by is to argue that, if legitimate democratic processes don’t give you what you want, it is permissible to bypass rule of law and establish an oligarchy unanswerable to anyone to get the job done.
The worst the left fears, such as revocation of Roe v. Wade, will almost surely not happen with Gorsuch aboard the court, seeing as how precedent counts for something, too. But we are likely to get more respect for legislative processes and Constitutional meaning than if we had a liberal there, and here is a quote from Gorsuch that people ought to remember.
“A judge who likes every outcome he reaches is very likely a bad judge stretching for results he prefers rather than those the law demands.”
Jay Ambrose is an op-ed columnist for Tribune News Service.