Tags: Supreme Court | Neil Gorsuch | originalism | constitution | SCOTUS

Gorsuch on Originalism: 'I'm Not Looking to Take Us Back to Quill Pens'

Image: Gorsuch on Originalism: 'I'm Not Looking to Take Us Back to Quill Pens'
Supreme Court Justice-nominee Neil Gorsuch (AP Photo/Rex Features)

By    |   Tuesday, 21 Mar 2017 05:25 PM

Sen. Patrick Leahy, D-Vt., contends the concept of judicial "originalism" to interpret the Constitution is "outside the mainstream" — and worries the philosophy will become a Supreme Court "agenda."

In the first two days of confirmation hearings, President Donald Trump's nominee for the nation's high court, Judge Neil Gorsuch, was grilled on his stance on "originalism" — Monday from Leahy and Tuesday by Sen. Amy Klobuchar, D-Minn.

"It has gained some popularity within conservative circles – originalism, I believe, remains outside the mainstream of modern constitutional jurisprudence," Leahy declared during the Monday hearing.

"It's been 25 years since an originalist has been nominated to the Supreme Court. Given what we've seen from [the late] Justice [Antonin] Scalia and Justice [Clarence] Thomas and Judge Gorsuch on record, I worry that it goes beyond being a philosophy, and it becomes an agenda."

Gorsuch refuted the cynical description of judges as "politicians in robes seeking to enforce their own politics rather than striving to apply the law impartially."

"If I thought that were true, I'd hang up the robe," Gorsuch said.

"The truth is, I just don't think that's what a life in the law is about. Sometimes the answers we reach aren't the ones we personally prefer. Sometimes the answers follow us home at night and keep us up. But the answers we reach are always the ones we believe the law requires.

"And for all its imperfections, I believe that the rule of law in this nation truly is a wonder, and that it's no wonder that it's the envy of the world."

In a Tuesday hearing, Klobuchar, among others, revisited the issue, pressing Gorsuch on decisions in which she said he applied "originalism."

"Senator, I'm not looking to take us back to quill pens," he replied in answer to her observation the Founding Fathers had not considered a woman could be president of the United States.

"Of course, women can be president of the United States. I'm the father of two daughters. I hope one turns out to be president."

"I agree with you, that's good," Klobuchar continued. "So, in that case, you say we can't take it at its literal words. So, the Constitution also says Congress has authority to oversee the land and naval forces, but there's no mention of the Air Force. I assume you believe that would include the Air Force, because if they knew an Air Force existed, they would have included the Air Force back then?"

"Senator, I think the generals of the Air Force can rest easy," he answered.

On his daily radio show Tuesday, conservative host Rush Limbaugh railed at the line of questioning.

"People like Leahy and the Democrats, [think] the Constitution is not a static thing — it's subjective," Limbaugh said.

"If they haven't learned from last November — that they aren't the mainstream — then we are standing in good stead here, folks," he added. "If they still believe that they're ruling the roost . . . that the sick stuff they believe is what dominates American culture as the majority of American thinking, then they're still fooling themselves."

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Sen. Patrick Leahy, D-Vt., contends the concept of judicial "originalism" to interpret the Constitution is "outside the mainstream" – and worries the philosophy will become a Supreme Court "agenda."
Neil Gorsuch, originalism, constitution, SCOTUS
516
2017-25-21
Tuesday, 21 Mar 2017 05:25 PM
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