CONFIRM JUDGE GORSUCH AND GET THE COURT BACK TO ITS FULL MEMBERSHIP

 

This is a most historic  week  for Americans as they watch the drama unfold in Washington over the nomination of Judge Gorsuch to become a Justice of the Highest Court in the land.   To my mind there is no more important job that the President has than that of nominating a Justice to the United States Supreme Court. I believe the Court is the most critical of the ideas embedded into our fundamental law by the Founders. It was intended to be the arbiter of Justice and the balance between the Legislative and the Executive Branches of government. And, I believe that over the years it has performed its function well, in fact impossibly well considering it has no enforcement powers—no armies it can send out to execute its judgment, no power of the budget or appropriation it can use to enforce its judgment. It has only the force of law, the force of a people who live in a Republic that was created to survive under the Rule of Law.

Many times in our history, the Court has issued judgments when Congress and the President were at such odds that the issues might have torn us asunder. Each time, both other branches have followed the Court’s lead and we have survived as a nation under law.

I believe the Court was not created to “make law” but to interpret the law: both the fundamental law embedded in the Constitution, statutes and laws made by legislative bodies, and the natural rights of law that we all hold under a right even higher than our Constitution, i.e., those rights referred to in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. The “making of law” was bestowed to the legislative branch, i.e., Congress, and to the states and local governments of course by the Ninth and Tenth Amendments. The President was given the enforcement power. The Court was to be the interpreter of laws challenged by an individual, by the President or by the Congress or a state or local government.

Given the fact that I believe the nomination is so important, it stands to reason that I believe that the United States Senate has no higher duty than that of considering the nomination and either confirming or denying consent to the nomination.

This week we are expecting a battle in the United States Senate over the question of whether to confirm the nomination of Judge Gorsuch as the ninth member of the High Court. The Democrats have threatened to filibuster and it appears the threat is not only real, but also has a chance of delaying the conformation. It is in doubt, I believe, whether the Republican leadership of the Senate, as it is in the hands of Mitch McConnell, can muster the 60 votes needed to break the filibuster. If it is to be done it won’t be done by McConnell; it will be done by members like Senator Mike Crapo of Idaho who, even though a conservative, has the ability and the talent to reach across the aisle and get support of a few votes when needed.

It is regrettable that a distinguished judge like Gorsuch should be subjected to the headlines, the attacks on his record, and to the indecision of awaiting the Senate vote. He is a judge who has served impeccably, with not a blemish on his record. I have read his opinions, both those submitted to the Senate and others that I sought out. He writes a thoughtful, carefully explained opinion laying forth why he interprets and applies the law as he does, fully laying out his reason and the reason of the Court for whom he writes. He is intelligent and intellectual enough to see the nuances of the law as to what might result from his decisions, but he is not an “egg head” who writes above the level of good lawyers and literate citizens.

He is a conservative in that he tries to apply the Constitution and laws as they are written, with the intent of those that wrote them. He does not reach into outer space to come up with an approach to the law before him simply to justify his decision or that of his court. It is obvious from some of his opinions that he does not always agree with the law before him, but he makes sure that whether he likes it or not, it gets applied as it is written. To me that is the mark of a good, sound, solid judge. He is to judge, not legislate, not enforce, but to judge.

The fact that he is a conservative has nothing to do with politics. I have no idea whether he is a conservative in politics, but he is a conservative in the law. I worked many years ago as a law clerk for one of the finest judges I have ever known, Chief Judge Frederick W. Brune of the Maryland Court of Appeals. He was a conservative judge and his opinions remind me of those of Judge Gorsuch. But, in his personal life, while basically a conservative in politics, he was the most liberal person I have ever known in his empathy for the downtrodden, the disadvantaged. Much, much later, I worked for District Judge Edward J. Lodge in Idaho (when I worked for him he was a state District Judge; he later was appointed to be a Bankruptcy Court Judge and then ultimately United States District Judge where he presided over the infamous Ruby Ridge FBI shoot out case (he had presided over the trial of the infamous Claude Dallas who shot two fish and game officers)). Judge Lodge was from a politically active and very conservative family, without a liberal political bone in his body. But he, as Judge Brune, held very liberal beliefs for the people. But, the important thing on the bench for both of them is that they conservatively applied the law as they believed it read and was intended to be read.

That is my read of Judge Gorsuch. And that is my idea of a fine judge
Now, Senator Shumer and his associates may have a valid point in being upset with the way the President handled the nomination, that is, without consulting with Democrats in the Senate. After all the Constitution provides that the President shall nominate members of the Supreme Court “with the Advice and Consent” of the Senate. I believe the intent of that phrase was and should be that in making a decision so important, the President should seek the advice of the Senate when he is putting together a panel of prospective nominees. I believe when he settles on his final group, he should seek advice from the senate, and “the Senate” is both parties, not just one. Apparently he did not do that.

But, he has now had the advice of the Senate from the Democrats who have voiced their opposition, and he has not changed his mind. So, I would say that the “Advice” portion of the Constitutional mandate has been satisfied sufficiently.

So, let’s get to the vote. Lets now get to the issue of whether the Senate will confirm the nomination of this well qualified nominee to serve as a lifetime member of the United States Supreme Court.

I hope that the Senators Crapo who are in the Senate will reach out and secure the necessary votes to get this honorable man seated on the court where he has every right to sit. This is no way to treat a man who has given as much as a good judge gives up in order to serve.

But, that’s just my belief. What do I know?

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