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Cafe Society to discuss the politicized Supreme Court and the pending confirmation hearing of Judge Gorsuch

By Staff | Feb 17, 2017

The Cafe Society Feb. 21 session will focus on the current confirmation proceedings of Judge Neil Gorsuch to the Supreme Court, in light of the current politicization of the Court.

The federal judiciary was designed in the Constitution to be apolitical. It is the only one of the three branches not subject to popular election, and it is also the only one whose members hold their offices during “good behavior” (i.e., for life). Insulating the judiciary from the political branches of government and from the tides of public opinion was the Framers’ intent so that the judiciary’s allegiance was to the Constitution and the laws of the United States, and not subject to control of the populace nor the politicians who selected and confirmed them. DeTocqueville visiting in 1820s from France identified the lawyers, and particularly the judges, as America’s “aristocracy.”

The Supreme Court, as befitting members of the aristocracy, being insulated from the influences of the political branches of government and from populace pressures, had a long history of being the most conservative branch of government. But that all changed once California Governor Earl Warren was confirmed as Chief Justice in 1953. The politician Earl Warren embraced the Constitution as a living document, in response to the political climate: Congress being led by the conservative Southern Democrats by virtue of the strict seniority system was frustrating the progressive society that emerged post war. First the Warren Court issued Brown v. Bd. Of Education, declaring separate educational facilities were inherently unequal in violation of the Constitution, and followed that decision with rulings, including that voting districts had to reflect one man, one vote; citizens have the constitutional right to privacy in their homes; persons accused of criminal conduct had the right to Counsel; and other rulings upsetting the status quo. IMPREACH EARL signs appeared on highways and byways all across the United States. When Warren retired in 1970, President Nixon appointed Warren Burger to be chief of the Court, but that Court, to the dismay of many Republicans did not disturb the Warren Court precedents. Indeed, it continued on the path of “legislating” as exemplified by Roe v. Wade, the landmark decision written by Judge Blackmun, another Nixon appointee.

So, in 1980, Ronald Reagan campaigned for President on a platform that underscored a commitment to nominate only true conservative, “strict constructionists” to the federal bench, including the Supreme Court. Reagan’s personal attorney and later Attorney General, Ed Meese, traveled the legal circuit espousing the judicial doctrine of “Constitutional originalism”. And ever since, Republican Presidents have only appointed to the federal bench those who pass certain litmus tests Right to Life, Gun Rights, Religious Freedom, etc.

The Rehnquist Court, led by Justice Scalia, embraced this doctrine of reading the Constitution as it was understood at the time of its framing, “its original meaning.” By definition, “original meaning” of the Constitution (circa 1790) was tailored to lead to conservative results.

The Roberts Court became more politicized when it issued the Citizens United decision declaring that Corporations, being persons, have the Constitutional rights of persons including free speech — and that campaign finance laws limiting their financial contributions violate that Constitutional right. President Obama criticized that decision in his State of the Union Address, to which in response Justice Alioto was caught on television shaking his head and mouthing the words “not true.” Then, last year in response to President Obama’s nomination of Judge Garland to the seat vacated by the death of Justice Scalia, Senate Minority Leader McConnell refused to allow the Senate to conduct confirmation hearings. And so, Trump upon being sworn in as President promptly nominated Judge Gorsuch to fill the Supreme Court vacancy that the Democrats thought they had the right to fill.

There are a number of subplots in the Gorsuch confirmation battle. The Democrats thought they could wrest a trusted majority of Justices with the addition of Garland and the absence of Scalia. That was not to be. Secondly, Democrats and many other citizens are worried that President Trump’s bullying and ad hominem attacks on judges who do not rule in his favor, will unconsciously intimidate judges (and Justices) to rule in the President’s favor. Third, Trump may have another one, two and perhaps up to three opportunities to nominate justices, as the vacancies will probably be in seats currently occupied by Justices Ginsberg, Breyer and Kennedy.

And fourth, Judge Gorsuch appears to be a worthy intellectual heir to Scalia. He is, like Scalia, a textualist and an originalist: someone who interprets legal provisions as their words were originally understood. Furthermore, Judge Gorsuch once confirmed is likely to be sitting on the bench for 30 or more years.

Among the issues sure to be raised at the Senate hearing (and this coming Tuesday morning at the Cafe Society) include: What is Judge Gorsuch’s view of precedents? What boundaries does he draw to the First Amendment’s separation between church and state? Is the Amendment IX statement “enumeration of certain rights shall not be construed to deny or disparage others retained by the people” limited to those rights extant at the time of ratification in 1791, or does it also include rights recognized today but never considered by the Framers? What is Judge Gorsuch’s reaction to President Trump’s comments about Judge Curiel’s denial of Trump’s motion to dismiss fraud charges brought by former students of Trump University (Mexican heritage and therefore prejudiced against Trump) and to President Trump’s comments about District Court Judge Robart and the Ninth Circuit panel that stayed his Executive Order banning entry into the U.S. of individuals from seven Muslim countries? If Judge Gorsuch’s opinions would be criticized by President Trump, raising question of Gorsuch’s judicial temperament and judgment, how would Judge Gorsuch feel, and respond?

Art Wineburg, the Caf Society facilitator for this topic, promises a stimulating discussion into Judge Gorsuch’s jurisprudence, his commitment to the Rule of Law and Supreme Court precedents, and the extent he will act independently from the wishes of politics and President Trump.

These Cafe Society informal discussions are held from 8:30 to 10 a.m. each Tuesday morning in the Rumsey Room of the Shepherd University (SU) Student Center. They are an integral part of the SU Life Long Learning Program and are intended to facilitate a dialog on current issues among members of our community, including students. There are no fees or registration requirements.