Thought Piece

 [Unsurprisingly, I favor the confirmation of Judge Gorsuch, but I thought that I should post the Point/Counterpoint arguments. While I have started to become really irritated by equivocal words—like “might,’ “could,” “possibly,” et al—in discussions about our environmental future, I think both sides of this debate over the next Justice of the Supreme Court must be heard.  Steve]

Point: Neil Gorsuch Should be Confirmed to the Supreme Court

Posted to Politics February 18, 2017 by John G. Malcolm

Judge Neil Gorsuch, President Trump’s nominee to the U.S. Supreme Court, will be a worthy heir to the man he will replace — Justice Antonin Scalia.

His credentials for the post are impeccable. Gorsuch holds an undergraduate degree from Columbia, a doctorate in philosophy from Oxford University, and a law degree from Harvard. After completing his education, he served as a law clerk to a highly respected circuit judge, David Sentelle.

He then clerked for two Supreme Court justices, Byron White and Anthony Kennedy. Indeed, once Gorsuch is confirmed, it will be the first time in history that a justice will serve alongside his former boss.

After 10 years at a prestigious law firm in Washington, Gorsuch served as a high-ranking official in the Justice Department. Two months after being picked for a seat on the 10th Circuit by President George W. Bush, the Senate confirmed this nomination … unanimously.

Judge Gorsuch has served on the court with distinction and is highly regarded by his colleagues.

Yet he approaches his job with humility, an undervalued character trait among some members of the judiciary. He has written that:

“… donning a robe doesn’t make me any smarter. But the robe does mean something. … It serves as a reminder of what’s expected of us — what Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we’re told to buy our own plain black robes.”

From this snippet, you can tell that Gorsuch, like Scalia, writes superbly. But what shines forth even more brightly is his judicial philosophy.

Gorsuch has thought deeply about the judge’s proper role in our society and about separation of powers — a constitutional construct that serves to protect the liberties of all Americans. He understands that policy judgments are to be made by legislators, not judges.

In a tribute to Scalia, Gorsuch noted 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.” However, he observed, judges are different. Their job is “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.”

Clearly, then, Gorsuch is a judge cut from the same mold as Scalia. He approaches important cases by studying the text and structure of the Constitution and trying to interpret its words and phrases in accordance with how those words and phrases would have been understood by the people who ratified them. As he put it so eloquently in one of his opinions, the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams, … but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch is no ideologue bent on trying to “rewrite” the laws of the land to reach outcomes he might consider desirable on a personal level. Indeed, on this topic, he often quotes Scalia: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

And, like Scalia, Gorsuch has clearly practiced what he preached, applying the law equally to everyone and with fidelity, even when he does not personally like the outcome it produces.

Neal Katyal, who served as acting solicitor general in the Obama administration, has described Gorsuch as an “extraordinary man and judge” who “brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”

He added: “I have no doubt that, if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.”

What more could one ask for?

Counterpoint: Gorsuch Could Make It Harder to Address Climate Change

Posted to Politics February 18, 2017 by Billy Corriher

Judge Neil Gorsuch was not on President Donald Trump’s first list of potential Supreme Court nominees. Judge Gorsuch did, however, appear on a revised list just weeks after he wrote a controversial manifesto arguing that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies like the Environmental Protection Agency.

Anyone concerned about the health of our environment should oppose Judge Gorsuch’s nomination. If Judge Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.

At the heart of Judge Gorsuch’s August 2016 manifesto is the Supreme Court’s 1984 decision in a case known as Chevron v. NRDC. In Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.

The court’s Chevron ruling was a common-sense approach to judging voluminous, complicated regulations. In practice, this approach means that when the Clean Air Act is unclear, the scientists who decide what level of air pollution could harm human health should get the benefit of the doubt. In other words, judges — whose expertise is in the law, not environmental science or public health — should let agency experts fill in the blanks.

Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs. Furthermore, if courts move away from Chevron, some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations, banking fraud and patents. This is an impossible standard for any judge to meet.

By | 2017-03-22T20:42:17+00:00 February 20th, 2017|Categories: Thought Piece|0 Comments

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