gracchusdixit

For opposing Donald Trump’s nominee to the Supreme Court of the United States, Republicans accuse Democrats of being petulant and obstructive, childish and churlish.  How, they incessantly demand, could anyone refuse to confirm “this good man?”  As if Neil Gorsuch’s “goodness” were self-evident.  As if principled opposition to his nomination were ipso facto indecent.  All this sanctimonious tut-tutting is little more than a cynical shell game, designed to distract attention from the clear and present dangers posed by this nomination.

There are three reasons for rejecting Neil Gorsuch, none of which is in the least degree petulant or obstructive, childish or churlish.

The first is that Republicans in the Senate shattered all norms and precedents by refusing for nearly a year even to meet with President Obama’s nominee, Merrick Garland.  Garland was a “good man” if ever there was one, but Republicans denied him so much as a hearing.  This denial was nothing less than a constitutional theft.  Having exacted their pound of political flesh from President Obama, Republicans now cannot abide the thought that Democrats might somehow be able to do the same to Donald Trump.  Their complaints about Democratic obstruction can therefore be dismissed as hypocritical and self-serving drivel.

The second reason is that, for all the talk about “this good man,” Neil Gorsuch’s judicial record is anything but good—it is terrible.  He is a radically right-wing judge, whose political agenda saturates and perverts his judicial opinions.  Republicans would like to pretend that this is not so, pointing to a handful of decisions in which he has broken with conservative orthodoxy.  This, too, is a shell game.

Gorsuch opposes the right of women to make their own reproductive choices.  He believes that states should have the right to criminalize homosexuals.  He thinks that corporations are “persons” and, as such, are entitled to the same protections granted by the Bill of Rights to you and me.  In virtually every contest between corporations and citizens, employers and employees, the powerful and the powerless, Gorsuch has sided with the rich, the powerful, and the privileged.

The third and principal reason to oppose this nomination is that Gorsuch intends to walk in the footsteps of the late Antonin Scalia.  Not only does he hope to take Scalia’s seat, he considers Scalia to be a personal hero and follows Scalia’s judicial philosophy to the letter.  To understand Gorsuch, we must therefore understand Scalia.

Antonin Scalia is known for advancing two, parallel theories of how the constitution and the law should be interpreted.  Those theories are “original intent” and “textualism.”

“Original intent” rejects the idea that the Constitution is a living document, expressing broad and aspirational rights that can and should be adapted to changing historical conditions.  The adherents of “original intent” view the constitution as a sacramental text, graven in stone.  When new circumstances or challenges arise, they assert that the “original intent” of the 55 men (they were all men) who framed the Constitution must be the sole interpretive standard.

Apart from the obvious fact that it is all but impossible to reconstruct the intentions of men who lived 200 years ago, the theory of “original intent” is shameful on its face.  The framers lived in an agrarian society, in which African-Americans were chattel, the very idea of women being able to vote was unimaginable, and Native Americans were an inconvenient  and disposable impediment to the brutal land-grabbing of white Europeans.  The framers had no experience of the Industrial Revolution, of coal mines, steel mills, or factories.  They did not foresee the transportation revolution, with its web of railroads and highways, nor could they have imagined the communications and information revolutions. Why, one must ask, should the “original intent” of the framers be considered morally or practically definitive in anything but a metaphorical sense?

“Textualism,” on the other hand, asserts that statutes—that is, laws passed by legislatures—must be taken literally, without regard for the intentions of their authors.  Its adherents insist that, once statutory language appears on a page, that text becomes the law, even when the text is ambiguous or contradictory.  This theory is rather like Colin Powell’s quip about the unintended consequences of military action:  “If you break it, you own it.”

One does not need to be a judge, a lawyer, or a legal scholar to recognize that these two theories of the law are illogical and incompatible.  To assert them simultaneously, as Scalia did and Gorsuch does, makes no sense.

The defenders of this approach claim that constitutional and statutory law are entirely different things, that the former deals in abstract principles. whereas the latter concerns itself with tangible practices and policies.  This distinction collapses under even cursory inspection.

The Constitution of the United States not only promulgates abstract principles, it also concerns itself with mundane specifics:  the age at which a person may be elected president, the apportionment of congressional districts, the establishment of a national postal service, and so on.  Conversely, many supposedly mundane statutes—the Civil Rights Act of 1964 and the Voting Rights Act of 1965, to name but two—concern themselves with broad, abstract principles no less than does the Constitution itself.

In the final analysis, the legal theories advanced by Scalia and Gorsuch are not a coherent philosophy at all, but, rather, an intellectual trick, allowing the law to be interpreted for political purposes.

This became glaringly apparent in 2008, when Scalia wrote the majority opinion in  Heller v. District of Columbia.  This narrow five-to-four decision upended nearly a century of settled law and, for the first time in our history, defined the Second Amendment as an individual right to bear arms.  In advancing this proposition, Scalia’s problem was that the language of the Second Amendment nowhere mentions such a right.  It merely states:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

To subvert the unambiguous meaning of this language, Scalia dismissed references to a “well regulated Militia” and the “security of a free State” as a “prefatory clause,” having no effect on the true intent of the amendment.  This was a grammatical and logical fiction, invented out of whole cloth.

Scalia was still left with the problem that the Second Amendment talks about “the people” rather than individual persons.  So, he turned to “original intent,” cobbling together a dubious historical narrative about gun rights in colonial America, claiming that, when the framers used the collective expression, “the people,” they were actually talking about individual persons.  That anyone still takes his argument seriously would be laughable if it weren’t for the fact that it is now, tragically, the law of the land.

Scalia tried a different trick in King v. Burwell, a 2015 case that ultimately affirmed the constitutionality of the Affordable Care Act.  Scalia seized upon a sloppy bit of language in the statute, stipulating that premium subsidies could only be provided to those who acquired their insurance on state-run exchanges rather than the federal exchange.  This stipulation, if upheld, would have destroyed the act.

In this case, Scalia used “textualism” as his weapon of choice, insisting that the precise language of the law should be followed, without regard for the undisputed intent of Congress, which was that subsidies should go to anyone and everyone who qualified for them, regardless of where they acquired their insurance.  Tossing his precious doctrine of  “original intent” overboard, Scalia tried to turn a typographical mistake into the law of the land.  Even John Roberts, the resolutely conservative Chief Justice of the Supreme Court, balked at the fundamental absurdity of Scalia’s argument.

The plain truth is that the legal theories of the late Antonin Scalia and the man who now hopes to replace him are, and always have been, intellectually dishonest.  These theories are little more than a judicial shell game, the only purpose of which is to pursue a political agenda.  However brilliant, witty, and articulate Antonin Scalia may have been, he did not deserve to sit on the Supreme Court of the United States.  However brilliant, academically qualified, and “good” Neil Gorsuch may be, neither does he.