The venerable saying that hypocrisy is the tribute that vice pays to virtue has special resonance these days in the politicized consideration of judicial appointments. Advocacy and argument routinely come dressed in such words as “in the mainstream,” “originalism” and “judicial restraint.” Much will be heard of all this as the Senate weighs the nomination of judge Neil Gorsuch to fill the Supreme Court seat vacated by Justice Antonin Scalia’s death.
These shopworn terms need close scrutiny, being in substantial degree a counterfeit legal currency – cant, to be blunt. Begin with the claim that Gorsuch is in the judicial “mainstream.” As Linda Greenhouse of the New York Times has noted, the “mainstream” of judicial consensus is always changing.
“Originalism,” or constitutional literalism, has the usual flaws of its religious counterpart. As for “original intent,” Madison’s notes on the Philadelphia convention are a gold mine regarding the views of the 55 Framers in the summer of 1787. But Madison discouraged reliance on his notes, believing that ratification processes and other aspects of deliberation had claims in the calculation of “original intent.” His contribution to ratification in New York, in essays known as the Federalist Papers, casts as much light on constitutional ambiguities as his convention notes. When originality has many sources, which, if any, is definitive?
Beyond the inconclusive debate over “original intent,” there is the issue of invention by justices of every shade of opinion. In Roe v. Wade (1973) the Supreme Court ruled that the states could no longer prohibit abortion in early stages of pregnancy and limited the reach of state law in the second and third “trimesters.” Justice Harry Blackmun, principal author of the decision, had served as counsel to the Mayo Clinic before joining the court and framed the abortion issue largely as a problem in stages of pregnancy and medical technology. In so doing, he perhaps unintentionally complicated the issue of late-term abortion.
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To grasp the fierce polemics that sprang from the 1973 decision, one must also look behind it to an earlier precedent in which the court scrapped a Connecticut statute that banned the use of contraceptives, even in marital bedrooms. Judge Robert Bork called the law “nutty” and it was. But some opinions that accompanied the decision ventured into speculative areas of constitutionality, including the assertion of “a right of sexual privacy.” Since no such right is to be found in the Constitution, abortion foes contend that this alleged personal liberty is a bogus foundation for legalized abortion. Indeed, conservatives of the “right to life” school decry the Roe decision as the worst departure from constitutional rectitude since Chief Justice Taney opined, in the 1857 Dred Scott case, that slaves had “no rights that a white man is bound to respect.”
Sexual privacy, however, is beyond question a value universally cherished. But a value is not necessarily constitutional, though it may be implied by specified rights.
Gorsuch will undoubtedly be questioned about the abortion-rights decision of 1973, in the light of his advertised status as an apostle of reinvigorated federalism. As expounded in his Court of Appeals decisions, his view seems to be that state rights are being too often cramped by federal authority. He is sure to be asked whether he sees the Roe precedent as a form of federal overreach. And in view of the partisan standards of Supreme Court appointment enunciated by Trump and Hillary Clinton in the campaign, abortion is sure to be front and center. Trump proclaimed a starkly partisan standard for his prospective appointees. His views invite – indeed, demand – inquiries and rebuttals in kind.
It would not be surprising if some wit also asked Gorsuch if he is merely a “so-called” judge, bearing in mind the curious label Trump applied to the judge who stayed his anti-immigration order. This was not the first, and probably not the last, indication of Trump’s disrespect for the judiciary. He clearly fails to understand that no presidential power granted by statute can override the Constitution itself.
The Gorsuch hearings threaten to become another political donnybrook camouflaged in fancy legalisms. As such, it will be exactly the wrong way to go about picking Supreme Court justices.
Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington.