The Wrong Choice for the Supreme Court

I write from my personal perspective as a lawyer who has spent forty years litigating and trying high stakes intellectual property cases in Federal Courts around the country. To me, a good judge is one who will give my client a fair hearing, listening to and considering every factor with impartiality before applying the law to the facts and deciding the case. I don’t think I ever appeared before any judge who I could predict with certainty was opposed to or in favor of my client’s position before hearing the law and the facts. Judge Gorsuch’s rigid ideology and personal politics will make his decisions predictable and separated from the real world, and he should not become our next Supreme Court Justice.

Unfortunately, the Supreme Court nomination process has made a mockery of standards of judicial impartiality and has devolved into a partisan argument about which “litmus tests” a nominee should meet before they should be confirmed. I agree with Supreme Court Justice Sotomayor’s recent observation that: “Any self-respecting judge who comes in with an agenda that will permit that judge to tell you how they will vote is the kind of person you don’t want as a judge.”

While Judge Gorsuch has impressive credentials, his judicial philosophy is so rigid that it predisposes him to rule based upon what he thinks is right without regard to the facts of a case, and isolates him from the “real-world” that all disputes are actually about. His existing writings and opinions show that he is what is known as a “textualist and an originalist”. That means that Judge Gorsuch interprets statutes without regard to their legislative history and interprets the constitution as it was understood in 1787. I have appeared in front of many judges and I have never had a judge refuse to consider legislative history in a dispute over the meaning of a statute. Words taken in a vacuum can be interpreted in many ways. What better evidence is there of Congress’s intent, than to read the discussion surrounding the enactment of the legislation. Indeed, Judge Gorsuch’s approach is contrary to his statement made after President Trump’s announcement that judges should “not rewrite the law, that’s for Congress.” Far from being a hands-off approach, textualism is an open invitation to judges to rewrite the law.

Most importantly, interpreting the Constitution as it was written in 1787 is meaningless in resolving the issues of 2017. Indeed, President Trump said he wanted a Justice who would respect the Second Amendment. One literal reading of that Amendment is that the right to bear arms is limited to circumstances where a Militia is formed. We don’t have Militia’s anymore. But no one has ever argued that means there is no longer any individual right to bear arms. Our constitution was written to stand the test of the ages, not to be put into a time-warp.

This desire to decide cases in a vacuum without regard to the facts and the real world is at the root of Judge Gorsuch’s stated antipathy to the use of the Courts to “effect a social agenda”.  In a 2005 essay, he specifically called out same-sex marriage, assisted suicide, and vouchers for private school education, stating that “this overwheening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”  But Judge Gorsuch was perfectly comfortable in joining in the 10th Circuit decision in the Hobby Lobby case interpreting freedom of religion broadly to permit employers to fail to provide insurance covering birth control if the employer, on religious grounds, objects to contraception. The First Amendment says nothing about freedom of religion including the right to impose your views on others. It is fair to predict that he will be susceptible to undermining if not overruling the same-sex marriage Supreme Court decisions, particularly Obergerfell, by finding a broad religious exemption to recognizing same sex marriage. His strong stance on the “right to life” (also not explicit in the Constitution) suggests he will be amenable to overturning Roe v. Wade. Judge Gorsuch’s lack of dedication to the Constitution of 1787 when it comes to decisions that align with his own personal politics show the problems with strict “orginalism.”

Moreover, Judge Gorsuch’s conservative stance is reflected in the multitude of rulings he has made favoring corporations over individuals, most notably Hobby Lobby. But there are many other cases where he has ruled for corporations and against individuals on a wide range of issues, including health and safety in the workplace, back pay, lockouts, sex discrimination and whistleblower protections. President Trump was elected because he told working people he was on their side, but his first Supreme Court nominee is clearly an enemy of the working class.

Some might say that as a judicial conservative, Judge Gorsuch would hew to the principle of stare decisis.This principle requires that “A decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Planned Parenthood of S. East Pa. v. Casey, 505 U.S.833, 864 (1992). This means a case cannot be overruled without consideration of facts such as unintended consequences or new developments. But originalists don’t look at facts. Therefore to them, cases such as Roe v. Wade, Windsor and Obergerfell should be overturned simply because they were, from their viewpoint, wrong on the law. An example of this thinking is found in the troubling Supreme Court opinion in Citizen’s United, which held that the First Amendment required that corporations be allowed to make political expenditures. In so doing, the majority, joined by “originalist” Justice Scalia, had no problem in overruling prior Supreme Court precedent holding that political speech may be banned based upon the speaker’s corporate identity.

A judicial philosophy founded on the ability to ignore real world facts means judicial decisions in which the needs of individual citizens are ignored. Law is not an abstract exercise in philosophy. It is the expression of the values of our nation. It is a way to peacefully solve actual conflict. Those clamoring to end the right to an abortion and the right to same sex marriage would prefer to ignore that the majority of the American public is in agreement with these rights. It is not surprising that Judge Gorsuch plainly favors corporations, but the American public, and Trump voters in particular, are not in favor of corporations taking advantage of workers. Judge Gorsuch’s approach is not consistent with the mainstream thinking either of the judiciary or the American public. He should not be confirmed.

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