Guest Column: Confirm Judge Neil Gorsuch to the Supreme Court
March 20, 2017
Rutledge says, ‘Like Justice Scalia, Judge Gorsuch’s record reveals him to have a moderately originalist approach to constitutional issues, a moderately textual approach to statutory issues and perhaps most importantly an open mind that allows for the use of other modes of interpretation when they are necessary and appropriate under the law.’
LITTLE ROCK – Today, an op-ed written by Arkansas Attorney General Leslie Rutledge appeared in the Washington Examiner, praising the selection of Judge Neil Gorsuch to the U.S. Supreme Court by President Donald Trump and urging confirmation by the U.S. Senate.
As the nomination hearing of Judge Neil Gorsuch to the U.S. Supreme Court is set to begin today, it is important to remember that his nomination has been met with a great consensus of support from both sides of the political spectrum. Even President Barack Obama’s former Solicitor General Neal Katyal has urged confirmation, noting that Judge Gorsuch’s “years on the bench reveal a commitment to judicial independence” and a record “that should give the American people confidence that he will not compromise principle to favor the President who appointed him.” Such support is unsurprising given the sterling judicial record of Judge Gorsuch.
In many ways, Judge Gorsuch will be the intellectual heir to the late Justice Antonin Scalia. Like Justice Scalia, Judge Gorsuch’s record reveals him to have a moderately originalist approach to constitutional issues, a moderately textual approach to statutory issues and perhaps most importantly an open mind that allows for the use of other modes of interpretation when they are necessary and appropriate under the law. And like Justice Scalia, Judge Gorsuch’s record reveals that he consistently, meticulously and zealously applies express constitutional protections in favor of criminal defendants and those against whom the coercive power of the government is deployed. His dissent in A.M. v. Holmes, where he found a police officer to have violated a student’s rights, best displays his sensitivity to the power of the government being used arbitrarily against its citizens.
Of course, Judge Gorsuch is not a carbon copy of Justice Scalia, nor should he try to be. For one example, Judge Gorsuch will be more likely than Justice Scalia was to question the deference that courts have afforded to executive agency “interpretations” of legislative acts. As made clear in his concurrence in Gutierrez-Brizuela v. Lynch, Judge Gorsuch is wary of the power that the executive branch has amassed over the last several decades, often at the expense of the legislative and judicial branches. This approach well aligns with an originalist respect for separation of powers and federalism, and promises to be an important bulwark against the collection of power in any one branch or level of government.
In a now famous analogy, Chief Justice John Roberts at his confirmation hearing likened a good judge to an umpire who dispassionately calls balls and strikes without adjusting the strike zone based on the identity of the teams. I’ve always liked that sentiment, but Justice Gorsuch did one better in my book during the announcement of his nomination. Judge Gorsuch said that “a judge who likes every outcome he reaches is very likely a bad judge” because that judge is probably “stretching for results he prefers rather than those the law demands.” This sentiment perfectly captures what it means in the real world for judges “to say what the law is” and not “make law” themselves. He’s right about the proper role of a judge, and his commitment to restrain himself in this way should be a welcome promise for all political sides.
I strongly support Judge Gorsuch’s nomination and am confident he will be confirmed.