It's so refreshing to have some normalcy in American politics.
That's my takeaway from President Donald Trump's nomination of Judge Neil Gorsuch to the Supreme Court. Gorsuch's nomination is so normal that, as many people pointed out on Twitter, the always-at-the-ready protesters had fill-in-the-blank signs ready to protest Gorsuch's nomination when it was announced. The predictable battle lines are drawn.
And to conservatives, Gorsuch looks like an excellent pick to replace the late giant Antonin Scalia. And not just because he's so dreamy, with those blue eyes and that outdoorsy Colorado lifestyle. (I jest... mostly.)
Let's go over the real reasons.
1. Gorsuch is an originalist.
The Supreme Court nomination process is supposed to be about a person's integrity and about judicial and legal philosophy. But in recent years, it has become astonishingly sentimental. When the Obama White House rolled out the was-never-gonna-happen nomination of Judge Merrick Garland, the video introducing him featured soft-focus graphics, emotive music, feel-good stories about his childhood — and absolutely nothing about his beliefs on anything of substance. What's more, we were always informed that Garland is "moderate" — a word that tells us everything about the bizarro world of Washington politics and nothing about his positions on specific issues. Rightly or wrongly, our political class has concluded that it's basically impossible to have valuable public debate on legal issues, and so have given up even trying, preferring banal sentimentalities.
Let's change that, and actually talk about Gorsuch's judicial philosophy.
Gorsuch's philosophy of legal interpretation is known as "originalism" or "textualism." It's the philosophy that judges should interpret the law and the Constitution according to the exact meaning of the words of the text as it would have been understood at the time it was enacted.
While the conservative movement promotes originalism in the judicial branch, it's important to understand that originalism is not a "conservative" philosophy in the way that left-leaning judges' belief in a "living Constitution" is a "progressive" philosophy. Conservatives don't promote originalism because it leads to conservative outcomes, but because it is the judicial philosophy most compatible with what we see as the best features of the American constitutional system. The Enlightenment thinkers who bequeathed us the Republican system of government — a system that has made the countries who adopted it the freest, most advanced, and most progressive in history — believed in a limited role for judges, because they believed that otherwise judges might become a kind of new monarchy (after all, judges aren't elected and sit for life). In the famous words of the French philosopher Montesquieu, typically a hero of progressives, judges should be "the mouth of the law."
As advocates of originalism freely admit, there is no perfect and foolproof method of interpretation, but originalism is the one that most respects the actual words of the Constitution and laws, which were written by the duly elected representatives of the people, who are the final owners of sovereignty in the American constitutional system. A world without orginalism is a world where unelected judges can decide social policy at a whim and do so despite having no constitutional warrant for it and having been elected for it by nobody. This concept is in contradiction with values central to our system of government, such as representative democracy and the rule of law.
2. Gorsuch is an excellent writer.
Gorsuch is an outstanding writer. And that matters a lot.
It matters, first, because words are the stuff the law is made of, and well-written law is actually better law. Legalese is not a real necessity, and the law is one of those endeavors where the quality of language is not just fun but actually makes a difference to the quality of the final product. While the holding makes the decision, the influence of jurisprudence actually has a lot to do with how many people just read it, and want to read it.
But it also matters for a different reason, which is that as Gorsuch is set to replace Scalia, he will be looked to not just to provide the same kinds of votes and holdings as Scalia, but also to advance the cause of originalism. It was widely noted that over his decades on the bench Scalia was enormously influential, and that his arguments moved generations of legal scholars closer to him, and forced even progressives to argue and think on much more textual grounds. A lot of that tremendous influence can be traced back to the force of Scalia's compulsively readable prose.
Gorsuch doesn't wield the sort of barbs and zingers that Scalia was fond of, but he's still a talented and lucid writer. And that really matters.
3. Gorsuch is young.
Not much more to say. This is the Supreme Court we're talking about. We conservatives want this pick to stay in that seat for a long, long time. Gorsuch is relatively young for a Supreme Court pick, and is an avid outdoorsman with an active lifestyle. That's worth some points, too.
So three cheers for Gorsuch. Here's hoping the Senate confirms him quickly.