Alexander's Column

Democrats v. Gorsuch: It's Rule of Law, Stupid

The Gorsuch confirmation hearings provide a clear contrast between the Rule of Law our Framers established and Democrats' desire for the despotic rule of men.

Mark Alexander · Mar. 22, 2017

“It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” —Thomas Jefferson (1821)

In March of 1991, after Operation Desert Storm — the first war in Iraq — President George H. W. Bush enjoyed a 90% public approval rating. But a year later, facing an unknown young and energetic presidential challenger, Bill Clinton, Bush’s disapproval rating somehow topped 60%.

Clinton’s “ragin’ Cajun” campaign advisor, James Carville, sharply focused Clinton’s message on the economy and a single mantra, which the mainstream media dutifully repeated ad nauseam: “It’s the economy, stupid!”

And it worked.

This week, as Donald Trump’s Supreme Court nominee, Neil Gorsuch, faced a barrage of leftist criticism from Democrat “constitutional scholars” on the Senate Judiciary Committee, it became abundantly apparent that all of them missed the prerequisite “Constitutional Law 101” course regarding the role of SCOTUS jurists.

With no apology to Carville, allow me to respond to those critics: “It’s the Rule of Law, stupid!”

Early in his campaign last year, Donald Trump promised that he would appoint “conservative judges” to the Supreme Court. By “conservative,” he meant those who would “conserve” the Liberty and Rule of Law enshrined in our Constitution. Conversely, his opponent (I can’t recall her name) promised to appoint “liberal judges,” those who would seek to “liberate” the American people from their unalienable rights to Liberty — judges who would treat our Constitution as if it were, as Thomas Jefferson warned, “a mere thing of wax … which they may twist and shape into any form they please.”

Indeed, Jefferson, who Democrats claim as the father of their political party, warned, “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Despite Jefferson’s timeless warning, our judiciary has devolved into a despotic branch in this era. Its jurists legislate by judicial diktat, which the Democrats have sought to create ever since the reign of the 20th-century father of their party, Franklin Delano Roosevelt. Since 1970, leftists have, in large measure, succeeded in undermining Rule of Law by nominating SCOTUS judges who subscribe to the errant notion of a “living constitution,” one that can be shaped and twisted to comport with their political ideology.

Last year, when endorsing Donald Trump’s candidacy, I noted that when asked, “How will you vote,” I responded as I have every quadrennial election since I cast my first vote: “For our Constitution.” In other words, for the candidate who is most likely to nominate constitutionally constructionist judges to the Supreme Court — those who will promote Liberty over tyranny.

I warned that “the outcome of the November election will not only determine our president for the next four years, but the composition of the Supreme Court for the next quarter-century.”

In the month prior to his inauguration, Donald Trump began to lay the foundation for a conservative administration that would rival that of Ronald Reagan.

Within days of his inauguration, President Trump delivered on his promise to nominate constitutional conservatives to the Supreme Court — starting with Tenth Circuit Court of Appeals Judge Neil Gorsuch, who was endorsed by both our colleagues at the Heritage Foundation and the Federalist Society.

The nomination of Judge Gorsuch to fill the seat of the late Antonin Scalia is an unequivocal win for Rule of Law.

Despite how Democrats and their Leftmedia echo chambers want to frame the nomination debate, it is NOT a “Republican versus Democrat” or “conservative versus liberal” issue. This is a pitched battle for the future of Liberty.

Our Founders and our Constitution prescribed that the specific role of Supreme Court justices was and remains, “to support and defend” Rule of Law in accordance with their solemn oaths. As George Washington stated on behalf of the framers, “The Constitution, which at any time exists ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.”

Justice Antonin Scalia defined constitutional originalism (conservatism) this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

That is the same constructionist view held by Judge Gorsuch.

The current Senate judiciary hearings provide a clear and dramatic contrast between the competing visions of conservatives advocating for the constitutional Rule of Law our Framers established and the Democrats’ desire for the despotic rule of men.

Lecturing Judge Gorsuch on how judges should conduct themselves on the federal bench, Sen. Pat Leahy (D-VT) complained, “It has been 25 years since an originalist has been nominated to the Supreme Court. Given what we’ve seen from Justice Scalia, and Justice Thomas and Judge Gorsuch on record, I worry that it goes beyond being a philosophy and it becomes an agenda.” Leahy continued, “Judge Gorsuch appears to have a comprehensive originalist philosophy … While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of moderate constitutional jurisprudence.”

I would challenge Leahy to find anything — anything — in our Constitution about “mainstream moderate constitutional jurisprudence.” Then again, by his account Rule of Law is just an antiquated concept.

Judge Gorsuch channeled Justice Scalia in his reply to Leahy: “If judges were just secret legislators, declaring not what the law is but what they would like [it] to be, the very idea of a government by the people and for the people would be at risk. And those who came before the court would live in fear, never sure exactly what the law requires of them, except for the judge’s will.”

The Demos’ ranking committee member, Dianne Feinstein (D-CA), protested: “Judge Gorsuch has stated that he believes judges should look to the original, public meaning of the Constitution when they decide what a provision of the Constitution means. … I find this originalist judicial philosophy to be really troubling.”

Feinstein continued, “In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would not only ignore the intent of the [Framers], that the Constitution would be a framework on which to build. … I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.”

Feinstein’s assertions are mind-numbingly wrong in every syllable — but this is precisely the sort of incoherence that we’ve come to expect from her.

In 1789, our Framers provided a brilliant foundational document on which to sustain Liberty. It prescribed a clear method for its own amendment by the whole body of the people and their legislatures, not by judicial activists as Feinstein and her fellow Democrats would wish. What leftists “firmly believe” is that they should dictate law.

I should note here that when Feinstein pressed Judge Gorsuch on his views regarding the Second Amendment, the premier civil right ensuring the defense of all others, he stood firm in his position that “Heller is the law of the land.” (As you recall, the Heller decision overturned banning of handgun possession by law-abiding citizens in Washington, DC, and by broad extension other jurisdictions across the nation.)

Sen. Dick Durbin (D-IL) scolded Gorsuch, insisting, “Your nomination is part of a Republican strategy to capture our judicial branch of government.”

If so, then by “capture” he must actually mean “restore Liberty for this and future generations.”

Indeed, Judge Gorsuch stood equally firm in his defense of the First Amendment protection of religious liberty when Senate Minority Leader Chuck Schumer (D-NY) challenged the right of family-owned businesses to practice their religious beliefs.

Of course, back in 1993, Schumer and former Sen. Ted Kennedy (D-MA) joined Republicans enacting the Religious Freedom Restoration Act, which Judge Gorsuch noted “says that any sincerely held religious belief cannot be abridged by the government without a compelling reason.” Apparently, Schumer was endeavoring to contradict the legislation he helped pass.

Judge Gorsuch noted further that because Congress previously “has defined ‘person’ to include corporation … you can’t rule out the possibility that some companies can exercise religion. And of course we know churches are often incorporated and we know nonprofits, like Little Sisters or hospitals, can practice religion.”

Notably, Schumer is now threatening filibuster and objecting to any Senate rule change that would undermine such obstruction, insisting, “The irresistible, immutable logic is, if the nominee doesn’t get 60 [votes], you change the nominee, not the rules.” But in 2013, when the Democrat-controlled Senate changed those rules in order to avert filibuster of Obama’s judicial nominees, Schumer was singing a different tune: “We much prefer the risk of up or down votes and majority rule [on judicial nominees], than the risk of continued total obstruction. That’s the bottom line no matter who’s in power.”

Sen. Amy Klobuchar (D-MN) turned her attention to pronouns. She asked Gorsuch if a woman could be president, even though “the Constitution refers like 30-some times to ‘his’ or ‘he’ when describing the president of the United States.”

Gorsuch replied, “Senator, I’m not looking to take us back to quill pens and horses and buggies. … Of course women can be president of the United States. I’m the father of two daughters, and I hope one of them turns out to be president.”

Last and most certainly least, the comedic Sen. Al Franken (D-MN) exclaimed, “While no one can dispute [Justice Scalia’s] love of the Constitution, the document he revered looks very different from the one that I have sworn to support and defend.”

Only if one is in severe need of historically corrective lenses.

The truth is that our Constitution says and means exactly the same thing today as it did when our Founders drafted it — and as properly amended in the years since. It remains the standard for enumeration of Liberty and the innate and unalienable rights of man.

Founder John Adams, who drafted the Declaration of Independence with Thomas Jefferson, warned, “A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.” In other words, if constitutional liberty is abdicated, it would take the reformation of another constitution to restore it — most likely by way of revolution.

Contemplate those words.

Currently, our Constitution has been subjected to enormous insult and adulteration by Democrat SCOTUS appointees, and the resulting corruption of the constitutionally authorized role of government means that even the most stalwart constitutional constructionist is operating in a lawless environment. Restoring Rule of Law is an enormous task, and it begins with holding members of the legislative and executive branches accountable for abiding by their sacred oaths “to Support and Defend” our Constitution — and uphold Rule of Law.

Beyond Gorsuch, this week Donald Trump announced his nominee for the first of the appellate court vacancies — U.S. District Judge Amul Thapar for the Sixth Circuit Court of Appeals. Judge Thapar was on the short list for SCOTUS nominees, so another great pick.

Of the 677 District Court and 179 Court of Appeals judgeships, there are 19 appellate and 96 district vacancies awaiting Trump nominees. By comparison, of the last three administrations, Bill Clinton nominated 62 Court of Appeals and 306 District Court judges over his eight year tenure. Of course, over the next four years, if Republicans can hold the Senate in 2018, given additional attrition on the courts, Trump may get to half the Clinton number. Let’s hope he gets at least one more Supreme Court nominee.

(Footnote: One reason Rule of Law is being undermined — according the latest public surveys, only 43% of Americans can name even one Supreme Court Justice…)

Semper Vigilans Fortis Paratus et Fidelis
Pro Deo et Libertas — 1776

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