The Heritage Insider: Gorsuch is an excellent choice for the Supreme Court, the logic behind the travel order, the bigger challenge of stopping terrorism

February 4, 2017

 

Neil Gorsuch is highly qualified for the job of Justice of the Supreme Court, and his most important qualification is that he respects the Constitution. Despite the flaws in its drafting and implementation, the President’s executive order on travel from seven majority-Muslim nations is a rational response to the growing refugee crisis in the Middle East. Stopping terrorism, however, will require more than a focus on the border.

 

Neil Gorsuch believes in the Constitution as it was written, the separation of powers, and judicial independence.

John Malcolm, Elizabeth Slattery, and Tiffany Bates write: “One recent study singled out Gorsuch as one of the top judges whose approach to interpreting the law was closest to that of Scalia’s approach. Gorsuch ranked second out of 15 judges in ‘Scalia-ness,’ surpassed only by Utah Supreme Court Justice Thomas Lee.

“When it comes to interpreting statutes and the Constitution, a Supreme Court justice must keep uppermost in mind that he did not write the text and should not attempt to rewrite that text through creative ‘interpretation’ to mean something quite different from what was intended by its drafters, but which the justice personally considers more fair, wise, or just.

“In other words, a justice should interpret the text and structure of a statute, or the Constitution, based on the original public meaning of that text at the time it was adopted, and should not, under the guise of statutory or constitutional interpretation, impose on the rest of society his own policy preferences based on his perceptions of contemporary values.

“Gorsuch gives every indication that he will be just such a justice if he is confirmed by the Senate. He has demonstrated that he understands the proper, limited scope of the judicial power.”

Read the rest of their article “A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court” for a quick biography and review of Judge Gorsuch’s significant opinions. [Daily Signal]

 

Ed Whelan agrees: “Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.

“Gorsuch’s judicial outlook is reflected in his beautiful speech celebrating — and embracing — Justice Scalia’s traditional understanding of the judicial role and his originalist methodology:

“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

“In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner. He explains why he rejects those critics and instead sides with Justice Scalia in believing that ‘an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.’ The Constitution itself carefully separates the legislative and judicial powers. Whereas the legislative power is the ‘power to prescribe new rules of general applicability for the future,’ the judicial power is a ‘means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.’ This separation of powers is ‘among the most important liberty-protecting devices of the constitutional design.’ Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, ‘how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes.’ Indeed, the ‘very idea of self-government would seem to wither to the point of pointlessness.’” [National Review]

 

One of the things Randy Barnett is hopeful for, he tells Reason TV’s Nick Gillespie, is that Gorsuch’s critical stance toward the idea that courts should defer to agency interpretations of laws (“Chevron deference”) will lead the Court to cry foul more often when Congress delegates its legislative powers to unelected agencies. He explains: “There are certain doctrines that the Supreme Court could start to revive and it would have an effect. One of them is called the non-delegation doctrine, which says Congress cannot delegate its legislative powers to the executive branch (which it has been doing since the thirties). […] There’s a lot of conservative agitation—not just libertarian but conservative agitation—to revive that idea. I don’t know what Judge Gorsuch thinks of this, but I would be guardedly optimistic that he is a friend of that because as he says in his criticism of [the] Chevron [doctrine], legislators are the ones who should be legislating. The problem with the delegation is that they are delegating their legislative power to another branch and his objection to Chevron is [based on] separation of powers and that’s the same objection you make to this delegation.” [Reason]

 

Neal Katyal is a liberal who thinks a Justice Gorsuch will be an independent voice for the Constitution and the rule of law: “I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court. […]

“I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.

“In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law’s meaning, he wrote, they ‘are not fulfilling their duty to interpret the law.’ In strong terms, Judge Gorsuch called that a ‘problem for the judiciary’ and ‘a problem for the people whose liberties may now be impaired’ by ‘an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.’ That reflects a deep conviction about the role of the judiciary in preserving the rule of law.” [New York Times]

 

The President’s immigration order is a response to the growing refugee crisis in Syria. James Carafano, who served on the Trump administration transition team, explains the thinking behind the administration’s executive order on travel from Iran, Iraq, Somalia, Sudan, Syria, and Yemen: “As the space for the Islamic State, or ISIS, gets squeezed in the Middle East, the remains of the tens of thousands of foreign fighters will have to flow somewhere. Every nation, not just the U.S., believes they are most likely to flow to the countries cited in the order. That fact, and only that fact, is why those countries are included on the list. Indeed, when it comes to visa vetting, that’s why the European Union has restrictions that are comparable to the United States.

“The reason why we all worry is because, from those countries, foreign fighters could well try to flow to the West, principally by using visas or posing as refugees. When they get to the West, they could carry out terrorist acts. We know that because they already have—specifically in Western Europe.

“They haven’t come to the U.S.—yet. Right now, our primary threat is Islamist-related terror plots that are organized by terrorists who are already here.

“What this administration is doing is making sure we are ready for the next wave of terrorism as well—the outflow of terrorists from the countries of conflict where the foreign fighters are likely to go first.” [The Daily Signal]

 

Ayaan Hirsi Ali is a former refugee from Somalia and a former Muslim. She thinks tougher immigration controls to screen out terrorists are just the beginning of a more sensible policy. She writes:

“The Obama administration had a flawed solution to this problem, which it called countering violent extremism. The Trump administration needs a completely new approach that targets not just violence, but the proponents of subversive Islamist views — the phenomenon of dawa or proselytizing. This ideological indoctrination is the essential prelude to acts of jihad, yet for too long it has been going on with impunity.

“Addressing the problem of Islamist terrorism will require much more than better immigration controls, though we certainly need those. It will necessitate the systematic dismantling of the ideological infrastructure of dawa, which is already well established right here in the United States.

“President Trump was right back in August. The threat posed by ‘the hateful ideology of radical Islam’ needs to be countered. American citizens — including immigrants — must be protected from that ideology and the violence that it promotes. But the threat is too multifaceted to be dealt with by executive orders. That is why Trump was right to argue in August for a commission of some kind — I would favor congressional hearings — to establish the full magnitude and nature of the threat.

“Until we recognize that this ideology is already in our midst, we shall expend all our energies in feverish debates about executive orders, when what is needed is cool, comprehensive legislation.” [WorldPost]

 

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