We live in reactionary times. For the past eight years, the reaction of the Republican leaders in Congress to any act or proposal of the Democratic President was to oppose it, regardless of its merit. That was the odious strategy of the current Senate majority leader from the first day of the Obama Presidency. Now that a Republican is President, the Democrats are mirroring the Republicans' bad behavior. They are opposing President Trump and the Republican Congress at every turn.
This may be a false equivalency. After all, the positions of the Democratic opposition are based on principle as much as politics. Democrats oppose the immigration ban not just because a Republican came up with it, but also because they believe it to be wrong. They opposed the appointment of Betsy DeVos to head the Department of Education not just because she was nominated by a Republican, but also because they viewed her as unfit for the task (a judgment with which two Republican Senators agreed). They opposed numerous other nominees for similar reasons.
Now they oppose the appointment of a highly qualified jurist to the highest court in the land. They do so because they disagree with his Scalia-like interpretation of the Constitution and its implications for future cases affecting Americans' civil rights. I am sympathetic with these concerns. Most judges, lawyers and scholars have not embraced Scalia's originalism. In their view, it threatens to scale back constitutional rights and protections that have been in place for many decades, if not longer. They prefer the more traditional view that the Constitution is a living document - that courts must interpret and apply its broad principles to new fact patterns that the Framers could not have anticipated, or that better reflect new understandings of the human condition that have benefited from advances in science and the evolution of American culture.
It is easy for well-meaning liberals to jump on the anti-Gorsuch bandwagon. The leaders of the movement to stop his nomination are vocal and strident. They are firmly committed to keeping another originalist off the bench. And there are other motivations as well - a distrust of anyone that this President would nominate, and a desire for payback to the Republicans who blocked Judge Garland's nomination.
Understandable as the Democrats' motivations may be, they are dangerously misguided. The greatest threat to our nation today is not a Supreme Court that will curtail the expansion of constitutional protections, or even scale back some of the protections that have developed over time. Rather, the greatest, and gravest, threat is the potential abuse of the Executive power by its current occupant. The President's disdain for the Rule of Law and his tendency to lash out against any judge who stands in his way threaten the very fabric of our democracy. The doctrine of the separation of powers is not merely an abstract concept that all government actors implicitly accept. Rather, it represents the most brilliant, vital and overarching structure of our constitutional system of government that prevents any one or two branches from assuming tyrannical power. And today, with the White House occupied by a would-be strong man, and with Congress ready to work in lockstep with it, the Judiciary may well be the only branch that stands between Americans and despotism.
The doctrine of separation of powers cannot function well when one of the three branches is broken. And a Supreme Court of eight Justices that is split along party lines is truly broken. Since Justice Scalia died, we have seen the Court unable to decide important issues, and render decisions that are non-decisions, returning cases to the lower courts to try to figure things out. Chief Justice Roberts, as the caretaker of this critical institution, might have spoken out about the need to fill the vacancy when Judge Garland was the nominee, and perhaps he did so behind the scenes, but in public he stood by silently as Republican politicians (and one in particular) blocked the nomination, thereby crippling the third, co-equal branch of government. Whatever one thinks of the current nominee, it is not in the interests of the American people, or of American democracy, to allow the Court to remain in such a weakened state.
I have seen no evidence that Judge Gorsuch would not defend the constitutional separation of powers. To the contrary, in at least one of his published opinions he advocates a strong judiciary to keep an expansive executive branch in check. Judge Gorsuch appears to be exactly the kind of judge America needs at this critical time. He has no prior ties to this Administration, and is not likely to rubber stamp its decisions. Although Democrats may disagree with his originalism, his adherence to that philosophy is at least some indication that he reveres the Constitution. It also is fully compatible with the belief, stemming from the very structure of the Constitution, that a strong Judicial branch can and should keep the other branches in check.
These are not ordinary times. The battles of the past and future must give way to the more pressing threats of the present. The gravest threat today is the potential abuse of power in the office of the President. We need a strong Supreme Court to keep that office and its lackey Congress in check. Judge Gorsuch would strengthen the currently hobbled Court, and all indications are that he would vigilantly enforce the separation of powers. Democrats would be foolish to obstruct the appointment of this highly qualified, independent and principled man.
This may be a false equivalency. After all, the positions of the Democratic opposition are based on principle as much as politics. Democrats oppose the immigration ban not just because a Republican came up with it, but also because they believe it to be wrong. They opposed the appointment of Betsy DeVos to head the Department of Education not just because she was nominated by a Republican, but also because they viewed her as unfit for the task (a judgment with which two Republican Senators agreed). They opposed numerous other nominees for similar reasons.
Now they oppose the appointment of a highly qualified jurist to the highest court in the land. They do so because they disagree with his Scalia-like interpretation of the Constitution and its implications for future cases affecting Americans' civil rights. I am sympathetic with these concerns. Most judges, lawyers and scholars have not embraced Scalia's originalism. In their view, it threatens to scale back constitutional rights and protections that have been in place for many decades, if not longer. They prefer the more traditional view that the Constitution is a living document - that courts must interpret and apply its broad principles to new fact patterns that the Framers could not have anticipated, or that better reflect new understandings of the human condition that have benefited from advances in science and the evolution of American culture.
It is easy for well-meaning liberals to jump on the anti-Gorsuch bandwagon. The leaders of the movement to stop his nomination are vocal and strident. They are firmly committed to keeping another originalist off the bench. And there are other motivations as well - a distrust of anyone that this President would nominate, and a desire for payback to the Republicans who blocked Judge Garland's nomination.
Understandable as the Democrats' motivations may be, they are dangerously misguided. The greatest threat to our nation today is not a Supreme Court that will curtail the expansion of constitutional protections, or even scale back some of the protections that have developed over time. Rather, the greatest, and gravest, threat is the potential abuse of the Executive power by its current occupant. The President's disdain for the Rule of Law and his tendency to lash out against any judge who stands in his way threaten the very fabric of our democracy. The doctrine of the separation of powers is not merely an abstract concept that all government actors implicitly accept. Rather, it represents the most brilliant, vital and overarching structure of our constitutional system of government that prevents any one or two branches from assuming tyrannical power. And today, with the White House occupied by a would-be strong man, and with Congress ready to work in lockstep with it, the Judiciary may well be the only branch that stands between Americans and despotism.
The doctrine of separation of powers cannot function well when one of the three branches is broken. And a Supreme Court of eight Justices that is split along party lines is truly broken. Since Justice Scalia died, we have seen the Court unable to decide important issues, and render decisions that are non-decisions, returning cases to the lower courts to try to figure things out. Chief Justice Roberts, as the caretaker of this critical institution, might have spoken out about the need to fill the vacancy when Judge Garland was the nominee, and perhaps he did so behind the scenes, but in public he stood by silently as Republican politicians (and one in particular) blocked the nomination, thereby crippling the third, co-equal branch of government. Whatever one thinks of the current nominee, it is not in the interests of the American people, or of American democracy, to allow the Court to remain in such a weakened state.
I have seen no evidence that Judge Gorsuch would not defend the constitutional separation of powers. To the contrary, in at least one of his published opinions he advocates a strong judiciary to keep an expansive executive branch in check. Judge Gorsuch appears to be exactly the kind of judge America needs at this critical time. He has no prior ties to this Administration, and is not likely to rubber stamp its decisions. Although Democrats may disagree with his originalism, his adherence to that philosophy is at least some indication that he reveres the Constitution. It also is fully compatible with the belief, stemming from the very structure of the Constitution, that a strong Judicial branch can and should keep the other branches in check.
These are not ordinary times. The battles of the past and future must give way to the more pressing threats of the present. The gravest threat today is the potential abuse of power in the office of the President. We need a strong Supreme Court to keep that office and its lackey Congress in check. Judge Gorsuch would strengthen the currently hobbled Court, and all indications are that he would vigilantly enforce the separation of powers. Democrats would be foolish to obstruct the appointment of this highly qualified, independent and principled man.
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