To those of us who remember the Bork hearings, it’s all a rerun. Somehow, it’s been cranked to such a level that you have to wonder if the best way to make money these days is to invest in blood-pressure medications. Circuit, Judge Kavanaugh “has a keen intellect, exceptional analytical skills, and sound judgment.” This confidence was well-placed. Judge Kavanaugh, however, apparently doesn’t subscribe to this view. As former Attorney General Edwin Meese has said, “Judge Kavanaugh follows the same pattern as Justice Neil Gorsuch, a fair and independent jurist who will faithfully apply the law as written and honor the Constitution.” Applying the law as written — imagine.Judge Kavanaugh’s record shows that the dire warnings being sounded about him are vastly overstated. Ten years later, in 2016, legal expert John Malcolm included him on a list of potential Supreme Court nominees, noting: “Since joining the bench, Kavanaugh has distinguished himself as a thoughtful, apolitical jurist, who is not afraid to stake out bold positions on complex issues.” One word in that sentence shows why the judge is being demonized by the left: “apolitical.” In their world, the judiciary is meant to be an unelected body of legislators who find all kinds of hidden meanings in the plain text of the U. That’s not what the left wants to hear, which is why they constantly (and improperly) ask Supreme Court nominees how they will rule on certain hot-button issues, from abortion to Obamacare.His judicial record (which I am detailing more extensively in a series of posts on NRO’s Bench Memos blog) is remarkably impressive.
That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner.
Gorsuch has earned special acclaim for his insights on administrative law and separation of powers. a delegation run riot, a result inimical to the people’s liberty and our constitutional design.” Gorsuch has had only one case involving the matter of abortion ().
In an opinion last August (), he argued that the Supreme Court’s precedents on deference to reasonable agency interpretations of law “permit executive bureaucracies 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 framers’ design.” He called for the Supreme Court to reconsider whether the so-called ), he said that Congress had gone too far in delegating power to an agency to decide what conduct is criminal: For Congress to “effectively pass off to the prosecutor the job of defining the very crime he is responsible for enforcing” is “by any plausible measure . Last October, he dissented strenuously when the Tenth Circuit refused to reconsider a panel ruling in favor of Planned Parenthood’s Utah affiliate.
In a case involving a firearms conviction (), Gorsuch protested that “people sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.” In support of his interpretation of the statute, Gorsuch invoked, quoting Justice Thomas, the “long tradition of widespread lawful gun ownership by private individuals in this country” and the Supreme Court’s recognition that the Second Amendment “protects an individual’s right to own firearms and may not be infringed lightly.” On criminal law and procedure, Gorsuch has a strong and balanced record.
He has protected the privacy rights of Americans while respecting the proper powers of the police.
If he knows the rules inside out, and he’s got a proven record of calling balls and strikes fairly, he’s qualified to call a major-league game. If they know the “rules” — the Constitution — cold, and their record shows they are impartial, knowledgeable and fair, then, generally speaking, they deserve a chance to call some major-league cases. He’ll have to run the same old gauntlet, but once he has, I’m convinced he’ll be confirmed and go on to be an excellent justice.
EPPC President Ed Whelan is offering running commentary on the nomination of Neil M. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future.
But he has also explained that the Fourth Amendment must be applied in a manner that “takes a realistic view of human capacities and limitations.” Gorsuch has complained that the overcriminalization of “so many facets of daily life [means] that prosecutors can almost choose their targets with impunity.” He has insisted that laws and regulations provide clear notice of what is prohibited, and he has prevented police officers from being held personally liable for conduct that wasn’t clearly unlawful.
Neil Gorsuch combines an appealing Rocky Mountain profile with a stellar personal history.