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Insight for Supreme Court nomination hearing: What would you ask Judge Neil Gorusch?

March 20, 2017

The nomination hearing for Neil Gorsuch begins today Monday, March 20th and will go for several days. We know based on past experience nominees actually answer very few questions substantively, to avoid forecasting how they might rule on issues likely to come before the court. But in order to help us know what to watch for in the hearings and what kind of information we would want to know about any Supreme Court judge, we asked some experts what they would most like to ask Judge Gorsuch and why.

John Malcolm, Director of the Edwin Meese III Center for Legal and Judicial Studies at the The Heritage Foundation. We interviewed on John Tuesday on The Reconnect. Listen to the entire interview.

“I would ask him about his adherence to precedent and his approach about when you think those settled expectations are such that you are going to let a precedent stand even if you think that something was wrongly decided as an initial matter of constitutional jurisprudence.”

Elizabeth Slattery, Legal Fellow and Appellate Advocacy Program Manager, Institute for Constitutional Government, The Heritage Foundation

“In a tribute to the late Justice Antonin Scalia, Neil Gorsuch said, quoting the justice, ‘If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.'”

“I would ask Judge Gorsuch to explain why this is the proper way judges should approach the law. It’s important for the American people to understand that judges preserve the freedom of all Americans when they keep their personal views and biases from impacting the law. And the best way for judges to do that is by trying to determine the original public meaning of laws and the Constitution—whether or not that leads to outcomes they like.”

Carl H. Esbeck, R. B. Price Professor of Law emeritus, University of Missouri

“Judge Neil Gorsuch, what is your approach to interpreting the U.S. Constitution?” Surely that question will be put to the Supreme Court nominee during committee hearings in the Senate, likely in several different ways. Will you vote to ‘uphold the Constitution’?  Are you a ‘strict constructionists’ that will follow the ‘original intent’ of those who drafted our Constitution? What do those terms mean?”

“When it comes to construing our Constitution, scholars speak in terms of ‘original public meaning.’ The drafting of our founding document was accomplished by over 50 men deliberating for weeks spanning the period May to September 1787. It is a product of many hands, discussed openly among these many delegates but otherwise closed to the public at large. Once adopted by the delegates, the document was then made public, widely and sometimes heatedly debated, and subjected to ratification votes in twelve of the original states. So the meaning to be sought is ‘public’ as opposed to the interior thoughts of a single person, such as President Lincoln’s Gettysburg Address.”

“‘Original public meaning’ is more than just a codification of the contemporary practices and rules of the late eighteenth century. For example, when the Fourth Amendment says we shall be secure in our houses and papers against unreasonable searches and seizures, an originalist has little trouble extending that to iPhones and digital storage ‘in the cloud.'”

“On the other hand, an originalist avoids what inevitably reduces to personal-preference lawmaking under the guise of interpreting the text. The Constitution is not a charter of moral and political principles to be built out over time on the basis of normative judgments by lifetime tenured judges about the nation’s best commitments and expectations.”

“That said, “original public meaning” goes beyond particular practices and rules of the founding period to also embrace the underlying principles that gave rise to these rules. Take the restraint against religious establishments in the First Amendment. A specific application at the time was to prohibit each resident from being levied a tax earmarked to pay the salaries of one’s local pastor or minister. The larger principle, however, is what was known then as ‘voluntaryism,’ meaning that the operating expenses of churches should be contributed voluntarily by those who find refreshment in the particular church or other place of worship of his or her choosing.”

“Judge Gorsuch, will you confine your interpretation of the Constitution to its original public meaning?”

Evan Rosa, Director, Biola University Center for Christian Thought and Editor, The Table

“We are a divided nation, made up of people prone talk before listening, averse to changing our minds, committed to one-upmanship, insistent on the final word, lustful for fame and power, obsessed with (yet cold to) the misfortunes of others, driven to achieve or maintain privilege, and blind to our biases. Our courts represent one of the final common areas of life where justice and peace still have a chance to embrace – for now, this is unactualized potential. Will my young children ever know an America where that happens? What virtues of mind and heart drive your legal philosophy and ethical perspective? Can humility have a place on the Supreme Court? Have you ever changed your mind when the truth was unpopular or didn’t tow your party line? And how will you, over the course of your lifetime appointment, wield your great power for the sake of the marginalized, forgotten, and oppressed?”

Bruce Ashford, Provost and Professor of Theology & Culture at Southeastern Baptist Theological Seminary, would ask if Neil Gorsuch would fulfill these two criteria outlined in this piece “to establish a Supreme Court whose justices respect the Constitution by reading it the way it was meant to be read, who reject precedents that fail to meet this standard, and who respect their own role as members of the judicial branch of government rather than bypassing Congress to legislate morality from the bench.”

“We must say ‘no constitutional adjudication without responsible interpretation,’ and ‘no moral arbitration without democratic representation.'”

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