A gentleman and a scholar: Neil Gorsuch and the separation of powers

President Trump has nominated Neil Gorsuch, a distinguished appellate court judge, for the U.S. Supreme Court. For many reasons, his appointment is crucial for slowing – if not halting – our breathless passage to that dismal state in which we lose liberty; our power to self-govern under our Constitution; and the preservation of precious values we share, where the right to hold private property, and being personally responsible for our welfare, are among the most important.

 

Remember that our Constitution provides for the sharing of power to govern among three governing branches – legislative, executive and judicial. While each is under unrelenting pressure to encroach upon the other’s domain, contributing to constant tension among these entities for several centuries, the arrangement has worked fairly well. If a political group wants a law approved which the legislature rejects, the group has the power to attempt to amend the Constitution. Despite obstacles and the complexity of this process, 30 amendments have been passed since the Constitution’s adoption.

Critics of this procedure have argued that an easier method for modifying the Constitution is needed. We require, they say, a “living Constitution” – one that reflects the voters’ most current sentiments. A Constitutional Convention could be convened to consider such an amendment. But a growing group of frustrated voters – including members of the media, Democratic politicians, law school faculties and their students – have become impatient.

Lately, they have become anxious to achieve goals that have been thwarted by an obstinate legislature. They seek other means, one of which is signaling to a sympathetic president – say, Barack Obama – to issue executive decrees under existing executive authority. In other words, establish a law that cannot be passed through proper legislative channels. This is a law often administered by a bureaucrat; an administrative law judge who provides rules and interpretations. More often than not, this procedure has won the sympathetic ear of the judicial branch of government and hence what has emerged is our unconstitutional “living Constitution.”

This is the nub of the problem, even though a legal mind might find objections to my presentation. Nevertheless, critics of this power transfer to the executive branch hope that Judge Gorsuch would lean toward slowing down or halting this process, which has been supported by late court decisions.

The most serious challenge to his credibility is an incident that took place while he was a law school student at Harvard from 1988 to 1991. It appears the judge lent his name as support for the causes Harvard Prison Legal Assistance Project and Harvard Defenders, but never made significant personal involvement in their activities. For this failure he is being vilified.

Indeed, Democratic U.S. Sen. Sheldon Whitehouse of Rhode Island somberly intoned, when paraphrased by a media reporter: If Judge Gorsuch’s role in these programs was limited, instead of nonexistent, it would be less significant. That’s as if, and this is unbelievable, Judge Gorsuch were guilty of some malfeasance and had to prove his innocence.

Even our ordinary courts of law presume the person charged is innocent until proven guilty. But the Senate’s kangaroo court turns this burden of proof upside down. John Cunha, who acted as a supervising attorney for the defenders during this period, offered, “It would seem to indicate he (Judge Gorsuch) wasn’t very involved,” which does not imply, we hasten to add, that he was not involved (The Wall Street Journal, Feb. 6), as the tone of the report would lead us to believe.

Of course, there are other important reasons Gorsuch supporters can find for his confirmation. He has written, in reference to the Constitution, “That document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning” (David B. Rivkin Jr. and Andrew M. Grossman, op-ed, The Wall Street Journal, Feb. 2)

On the question of separation of powers, Rivkin and Grossman assert “that he has been at the vanguard of applying (original public meaning) to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable (presidential) executive agencies.” They continue, “The deference (yielding to government bureaucratic opinion of congressional actions) that judges now must give … permits the executive “to quote Judge Gorsuch, ‘to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framer’s design.’” In other words, Judge Gorsuch says this power transfer from the legislative branch to the executive branch “is a little difficult to square with the Constitution.”

To which we add: Amen. Among progressives and conservative folks alike, he is regarded as very intelligent, and his legal opinions are expressed clearly and, according to Rivkin and Grossman, not as forcefully as those of the late Justice Antonin Scalia. He also displays a quality which is in decline among our citizenry – he is both a gentleman and a scholar.

(The writer is a professor emeritus of financial economics at the University of Georgia. He lives in Aiken, S.C.)

 

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