EDITORIAL: Win or lose, Gorsuch is well qualified

Waterloo-Cedar Falls Courier (IA)

Feb. 07--U.S. Supreme Court appointments have come to exemplify the bitter partisan divide that permeates Washington, D.C., which is evident in President Donald Trump's selection of Judge Neil Gorsuch.

For once, Trump's penchant for hyperbole was on the mark when he stated the Colorado native, a jurist on the U.S. Court of Appeals for the 10th Circuit, "has outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support. It is an extraordinary resume -- as good as it gets."

However, that bipartisan backing -- a unanimous voice vote when confirmed for the appellate court -- is a thing of the past, just as it was when President Barack Obama nominated Merrick Garland, who wasn't even given the courtesy of a hearing by the Republican Senate majority.

Senate Minority Leader Chuck Schumer of New York has stated Gorsuch will need 60 votes to avoid a filibuster with Republicans holding only 52 Senate seats. That rankled Sen. Chuck Grassley, R-Iowa, who adamantly opposed even a hearing for Garland.

Trump has urged Republicans to use the so-called "nuclear option," a parliamentary move to circumvent the filibuster, and confirm Gorsuch by a majority vote.

Gorsuch, 49, is the son of Anne Gorsuch Burford, head of the U.S. Environmental Protection Agency during the Reagan administration and a thorn in the side of environmentalists. A Harvard Law School classmate of Obama, he is an Episcopalian and would be the only Protestant on the bench (five Roman Catholics and three Jews).

Gorsuch, a Supreme Court clerk to Justices Anthony Kennedy and Byron White, would fill the vacancy created by the death last year of his hero Justice Antonin Scalia, a conservative stalwart and a so-called "originalist" when interpreting the U.S. Constitution.

He would tilt the court back to a conservative majority, although Kennedy occasionally goes off the reservation, notably on abortion and gay rights issues. For that matter, Scalia frequently diverged on privacy and free speech, but not in regard to abortion or gay rights. ("If we cannot have moral feelings against homosexuality, can we have it against murder?" Scalia asked.)

Originalists are committed to the original meaning of the Constitution and statutory text. They rail against judicial activists creating new laws out of whole cloth, although the court's Citizens United decision is an exception, eviscerating campaign spending laws far beyond its proponents' wildest dreams.

Our problem with interpreting the words of the Constitution as originally written is it puts a premium on a document ratified in 1788 that ignores ensuing historical developments, women participating in democracy and declared slaves as property, but three-fifths of a person for determining population.

The latter fact gave Southerners -- frequently slave owners -- a pre-Civil War grip on the presidency. Before Lincoln, the only Northerners to hold that office were John Adams and his son, John Quincy Adams.

The Civil War resolved some issues on the battlefield the Framers didn't address. As Columbia University law professor Jamal Greene has written, six of the 13 amendments approved after the conflict have provided an updated road map regarding civil and voting rights issues not in the original document.

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Yet Scalia held firm "the whole theory of democracy ... is that the majority rules. ... You protect minorities only because the majority determines that there are certain minority positions that deserve protection. ... The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."

Like Scalia, Gorsuch is known for his support of religious liberties, most notably as part of the 10th Circuit's decision in the Hobby Lobby case supporting that chain's moral objection to the Affordable Care Act provision insurance plans must cover contraception.

Gorsuch has been critical of social activists turning to the judiciary to achieve goals rather than legislatures. He also has taken aim at regulations written by federal bureaucrats he believes go beyond the extent of the legislation as written, while Scalia often showed deference.

Gorsuch has not ruled on abortion. Those looking for tea leaves cite his book, "The Future of Assisted Suicide and Euthanasia," in which he supported "the idea that all human beings are intrinsically valuable," but without stating when he believes life begins.

We have no idea about Gorsuch's beliefs on libel law, which Trump has advocated "opening up" during his media broadsides. Senators would do well to question him on that, as well as his stance on executive orders, which Republicans complained about with Obama but have become a Trump administration hallmark.

Democrats -- still reeling from Garland's "stolen seat" -- will use the Gorsuch nomination to rally the troops. While we do not fall in the "originalist" camp, we can't deny Gorsuch -- as Garland before him --is well qualified to join the court.

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