By E. Donald Elliott
Moderates could do a lot worse than Judge Neil Gorsuch — and we probably will if he isn’t confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.
Judge Gorsuch’s judicial philosophy isn’t mine. He believes that the Constitution’s meaning is fixed, that whatever the words signified in the era of the Founders is what they still express today. My view, which aligns more closely with that of Justices Stephen Breyer and Elena Kagan, is that judges must respect the Constitution’s text and history but may also interpret them to fit the changing times.
But among judicial conservatives, Judge Gorsuch is as good as it possibly gets. I have known him personally for more than a decade, since he was an attorney in the Justice Department. He is a brilliant mind, but more important he is a kind, sensitive and caring human being. Judge Gorsuch tries very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead.
Judge Gorsuch has demonstrated in his rulings that he believes the judiciary has a sworn duty to protect individual liberties, even when they lack broad public support. Today Judge Gorsuch rules that Hobby Lobby cannot be forced to offer employees certain contraceptive coverage that violates its owners’ religious beliefs. (That ruling was upheld by the Supreme Court.) But tomorrow it could mean standing up for an unpopular minority group that liberals like better.
American history teaches that the controversy of the moment when a Supreme Court nominee is considered rarely becomes the defining issue of that justice’s career. The life of the country is unpredictable, and it would be a mistake to back a nominee simply for having the right political views on the cause célèbre du jour. More important is putting on the court someone like Neil Gorsuch—a good person with solid values — to decide, as the law requires, future controversies that we have yet to dream…
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