The Constitutional Process

The nomination of Hon. Neil Gorsuch deserves a constitutional process; and so it’s the duty of both blue and red politicians to serve constititutional democracy above party. It’s also on us, We the People, to be part of an informed, constitutional conversation.

  •  Beware judicial labels of liberal and conservative when applied to Supreme Court Justices or the Constitution. The Constitution is neither red nor blue and Justices aren’t blue and red robots with easy labels. Justice Kennedy, labelled conservative, wrote the majority decision in Obergefell. Chief Justice Roberts, labelled conservative, wrote the majority decision upholding Obamacare.
  • Judge Gorsuch was a federal law clerk for Justice Kennedy and Justice Byron White. Federal law clerk experiences are legally formative on young law clerks. (I was one at the federal trial court level in Chicago.) Justice Kennedy and his former law clerk would be on the Court together. Justice Kennedy has been a swing vote on the Court.
  • The country needs a 9-person Supreme Court. There’s a backlog of important cases that need constitutional due process.
  • Scotus history shows that judicial philosophies, beliefs and ways of deciding cases evolve over time. Judge Gorsuch is young at 49. If confirmed, it’s more likely than not that decades (potentially) of Supreme Court judging will change him compared to where he is in 2017.
  • His judicial, intellectual and life accomplishments to date deserve an objective form of respect even if we may or may not align on every legal question he’s addressed. As I make my way through his 10th Circuit decisions, my first impressions are: a skillful legal writer, an analytical mind, a teacher of legal ethics, a respect for law and the Constitution, not a “virtual Scalia” like some are claiming but someone who has a sense of judicial independence. My first impression is that he would, especially over time, know his own heart and mind as a Justice and would not lock-step to political labels, as evidenced by his comment yesterday that “a judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers, rather than those the law demands.”