Who’s afraid of Neil Gorsuch? If he’s a Scalia originalist, he might be useful

Today the Senate began confirmation hearings for Neil Gorsuch, Donald Trump’s nominee for the Supreme Court. Putting aside the important controversy over the blocked nomination of Merrick Garland, the Democrats have to figure out a test for whether to let this guy on the Court, or to filibuster. The senior Democrat on the Senate Judiciary Committee, Senator Diane Feinstein, has said she intends to press Gorsuch on issues such as abortion rights, gay rights, and the environment. I think she has the wrong idea. This nominee won’t be the deciding vote on those matters. She should really be trying to figure out whether Gorsuch, who is frequently called an originalist, is an originalist in the mold of Justice Scalia. Scalia may have been personally conservative, but his legal originalism made him a staunch defender of the rights of criminal defendants. If a Trump nominee has to fill that seat, better to have one who will protect Americans against increasingly intrusive law enforcement. A standard conservative Justice isn’t likely to do that. This nominee won’t be the swing vote on core liberal issues like gay rights and abortion, so if Gorsuch shares Scalia’s views on the 4th Amendment, Democrats should get him on the Court as fast as they can.

No Trump nominee for Scalia’s seat can threaten marriage equality, reproductive rights, fair housing, or affirmative action – yet

As President Obama famously said, elections have consequences, and no Trump nominee is going to be a pro-choice, environmentalist, civil rights activist. Neither a standard conservative nor an originalist is going to support all of our environmental laws – they don’t like Executive power (at least if it doesn’t involve the military). Nor are they likely to protect abortion rights, marriage equality, fair housing or affirmative action. However, the new Justice will not be the deciding vote on any of the above issues – Anthony Kennedy will, just as he has been since 2005. Kennedy has a fairly abysmal, though not uniformly negative, environmental record, but he often votes with the Court’s “liberals” on social issues. Kennedy has written every gay rights opinion since 1996, and he is not likely to abruptly undo his own legacy. He has also written or joined opinions in favor of abortion, fair housing, and affirmative action.  As long as Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy are alive and on the Court, these rights are not under threat. If we’re looking for a way to distinguish between an acceptable Trump nominee and an unacceptable one, those core liberal issues shouldn’t be decisive, both because no Trump nominee will vote with liberals on them, and because the legal status quo is not in danger.

What is an originalist and why aren’t they regular conservatives??

An originalist is a judge who believes the Constitution (and all other laws) should be interpreted not just using the text of a law, but also using the historical evidence indicating the original intent of the people who passed the law.  Sounds pretty logical, right? The truth is, all judges believe that the original intent of a law is important to its interpretation. The difference between most judges and originalists, is that most judges think that in 2017, it’s hard to justify using the exact intent of someone writing a law in 1790 – in other words, that James Madison couldn’t have imagined how the 4th Amendment, which protects us against unreasonable searches and seizures, might apply to drones. Originalists believe they are obligated to follow the original intent of the framers. This can bring them into conflict with judges who are conservative and, for instance, just want to give law enforcement latitude to enforce public safety, even if it chips away at the original intent of the Bill of Rights.

Where could an originalist clash with Trump?

If Justice Scalia is any indication, they could clash on the rights of criminal defendants. Trump has promised to deport millions of undocumented immigrants, many of whom have American children, and it has not been uncommon for American citizens to get caught up in immigration raids. Moreover, Muslim Americans have been subject to greater harassment under Trump’s regime, and his “law and order” message has caused immense concern about increased harassment of minority communities. The original Bill of Rights was highly protective of the rights of arrestees, and Justice Scalia consistently voted for a broad interpretation of their rights during his tenure on the Court.

If Gorsuch is anything like Scalia, he’ll be mighty skeptical about efforts to skip into someone’s home without a warrant. Scalia wrote a blistering dissent against the use of DNA swabs without a warrant. He also wrote majority opinions prohibiting the use of infrared to detect marijuana growing operations in a home; monitoring of GPS without a warrant; using drug sniffing dogs near a home without a warrant; and searches of arrestees’ phones and cars without a warrant. Scalia likewise ensured that criminal defendants had their 6th Amendment right to confront their accusers and cross-examine them, and have a jury, rather than a judge, determine any increase in criminal penalty. Seems to me that it wouldn’t be terrible to have that kind of guy around if a President implements a massive deportation program or sends federal agents into cities.

So is Gorsuch a friend of the criminal defendant?

It looks like he may be. He has ruled in favor of criminal defendants in some controversial cases, including a case in which he threw out a conviction for child pornography, which is not a thing many conservative judges would do. His record on the 4th Amendment is also more helpful than on a lot of other legal issues, because lower court judges get to make independent determinations more often than in other areas of the law, because law enforcement technology is changing so rapidly. So given that the Democrats aren’t about to get a judge they love, I think they should make their decision based on Gorsuch’s opinions on the rights of criminal defendants. Why not accept a nominee likely to reject some of Trump’s more autocratic tendencies? Besides, in Trump’s America, being a criminal defendant could be an increasingly common experience.



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