FARMINGTON — Centering any discussion on power competition is bad manners. This is why debaters consistently steer clear of weighing power advantages. We should respect that
It’s only for the sake of clarity that we acknowledge that conservative Republicans want a Supreme Court that upholds constitutional limits on the growth of central government in most spheres, while liberal Democrats want a court that facilitates growth in most areas. It is appropriate to acknowledge that my guiding principles are conservative and that this is the reason I’ve been active in the Republican Party.
Having made a concession to good manners, we observe that American political debates normally sort themselves out in predictable patterns. We recognize that all the points and counterpoints regularly made by participating politicians, policy wonks, academics and pundits follow these patterns. The supporting facts may multiply; the rhetoric may grow more heated and eloquent, but the fundamentals are usually sorted out early on.
Neil Gorsuch, like all judges, is supposed to be guided by the law and not by political partisanship. His philosophical understanding arises from the doctrines of constitutional originalism. Anyone seriously interested in his fundamental beliefs should consult the Center for the Study of Constitutional Originalism. The site provides clear and comprehensive expositions of both originalist arguments and the arguments of those who oppose originalism.
Criticism of Gorsuch’s guiding beliefs has come almost entirely from liberal academics. We cannot tell from Sen. Angus King’s public declaration of opposition if he knows anything about them. Robert A.G. Monks’ April 4 column makes no reference to them. The manifesto from the 98 Maine lawyers who condemned the judge had nothing at all to say on the subject.
The principal arguments of liberal politicians and pundits in Maine and the nation come under three broad headings. I’m predicting that any future conservative nominee will deal with the same arguments:
• The nominee navigates away from the mainstream.
Liberal use of the extremist label ascended to a screaming pinnacle during Ronald Reagan’s 1980 presidential run and has never fully subsided. So we aren’t surprised to find April Humphrey, speaking on behalf of Mainers for Accountable Leadership, challenging Sen. Susan Collins’ reputation for moderation because she supports “such an extreme candidate.” And Brunswick attorney Jackie Sartoris (from the same group) warns us that “Gorsuch is not a normal candidate but an activist judge with an extreme agenda.”
Gorsuch was confirmed to an influential appeals court by acclamation in 2006. The American Bar Association gave the man a “well qualified” rating (its highest ranking). President Obama’s former Solicitor General Neal Katyal has praised his qualifications and temperament. None of his liberal colleagues on the bench have found him extreme. Doesn’t matter. The extremism slur will always work for some people and repetition has long been recognized as propaganda’s most effective method.
• The nominee is a corporate tool.
Senate Minority Leader Chuck Schumer, D-N.Y., likes this attack even more than the extremism theme. “When the chips are down,” he tweeted, “far too often he sides with the powerful few over everyday Americans just trying to get a fair shake.” When Sen. Dianne Feinstein, D-Calif., tried this slur, Gorsuch answered her with a long list of his rulings against powerful interests.
A man who’s been in black robes for years and written decisions on hundreds of cases needs a thick portfolio of corporate toadyism to merit the “far too often” charge, yet his critics rely on just one decision to back this charge: TransAm Trucking, Inc. v. Administrative Review Board.
• The nominee lacks empathy.
This also relies heavily on the TransAm Trucking case. Gorsuch ruled against a truck driver who was fired because he left his vehicle, against company orders, when freezing. The opinion Gorsuch wrote made it clear that he felt the driver had a better reason for abandoning his truck than his employers had for firing him. He did not argue that the law was fair, but that he believed it was the legislature’s business to write the laws, not the court’s business to rewrite them.
Lawmakers have wide latitude for expressing empathy, judges very little. We choose our judges from the legal profession. Lawyers go to law school to learn law. No law school offers Empathy 101. If empathy is the prime desideratum for Supreme Court justices, they should be chosen from the veterinary professions.