Federal Courts and Nominations

OP-ED: Gorsuch an originalist? Senators should make him prove it

With all the talk of the originalist method of interpreting the Constitution ascribed to President Trump’s nominee to the U.S. Supreme Court, Judge Neil Gorsuch, it was nearly guaranteed that members of the Senate Judiciary Committee would quiz Gorsuch on his originalist bona fides.

Part of the heavy burden Gorsuch carried into this week’s hearing is his need to prove that he is not – as we discuss in our latest Issue Brief (and echoed by Senator Amy Klobuchar in her first-round questioning) – a “selective originalist” who applies the text and history only of parts of the Constitution he may agree with ideologically, while giving short shrift to the parts he may not agree with.

Interestingly, it was Senator Orrin Hatch who first asked a question in this vein, seeking Gorsuch’s sense of how to apply the text of the Fourth Amendment’s protection against warrantless search and seizure in modern times, with technology the Founders could never have envisioned.

Gorsuch dove right into his answer by reference to a recent Supreme Court case, U.S. v. Jones, which dealt with whether it violated the Fourth Amendment for law enforcement to attach a GPS device to a suspect’s car without getting a warrant.

While he seemed to relish giving his answer to Hatch, Gorsuch seemed far less enthusiastic about answering Senator Patrick Leahy’s questions about the original understanding of the First Amendment as it relates to campaign contributions by corporations.

Similarly, Gorsuch tried his best not to answer Leahy’s later question about the Roberts Court ruling that gutted a key provision of the Voting Rights Act, Shelby County v. Holder.

Why the difference? Gorsuch’s answer on how the original understanding of the Fourth Amendment as a robust protection against warrantless police searches and seizures applied to advanced technology in the Jones case was well thought out and indicative of his judicial approach to important constitutional questions. He apparently did not find it inappropriate to answer such a question about the meaning of the Constitution in the context of a Supreme Court ruling about an 18th Century constitutional provision.

If Gorsuch is a true originalist, committed to following the text and history of the entire Constitution, he should discuss other provisions of the Constitution and Supreme Court precedents in a similar fashion, and respond more fully to Senators who want to know, for example, his understanding and commitment to the constitutional principles of equality for all persons and protection against discrimination against people of color, women, and LGBTQ persons in America.

A Senator could ask directly about the Fifteenth Amendment, much the same way Hatch asked his question, for example:

The Fifteenth Amendment protects the right to vote free from discrimination on the basis of race, and gives Congress the power to enforce that right by appropriate legislation. It was written in the wake of the Civil War when Radical Republicans in the Reconstruction-era wanted to ensure that African Americans could participate as full citizens in our democracy after having been denied their fundamental rights, including the right to vote, by a pro-slavery nation. In your view, how should a judge approach interpreting and applying constitutional provisions like the Fifteenth Amendment in modern-day cases of voter suppression that are targeted at or disproportionally affect communities of color?

Gorsuch might reply by simply adapting the answer he gave to Hatch, seen in the video above:

May I offer an example, Senator, I think might be helpful? I take Shelby County v. Holder, a recent case from the United States Supreme Court, involving what used to be Section 5 of the Voting Rights Act….

And the same thing with respect to marriage equality, a Senator might ask:

The Fourteenth Amendment provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This text of the Equal Protection Clause was intended to be universal in its protection of “any person;” this guarantee of equality of rights was understood at the time of the Amendment’s ratification to protect any person, of any group or class; and, in looking to what rights were understood to be protected equally, the Framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. In your view, how should a judge approach interpreting and applying constitutional provisions like the Fourteenth Amendment to modern-day claims of discrimination against LGBTQ individuals, including with respect to marriage?

Gorsuch might again simply adapt his reply to Hatch:

May I offer an example, Senator, I think might be helpful? I take Obergefell v. Hodges, a recent case from the United States Supreme Court, involving the right to marriage equality protected by the Fourteenth Amendment ….

And so on. If Gorsuch has his text and history down pat, his could even end his answer the exact same way he did in replying to Senator Hatch: “It can’t be the case that the United States Constitution is any less protective of the people’s liberties today than it was the day it was drafted.”

Over and over again, We the People have bent the arc of our Constitution toward progress. What we still don’t know is whether Judge Gorsuch understands, and is committed enough to applying, that fact were he to be confirmed to the Supreme Court.

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