About Judge Gorsuch

When it comes to Constitutional law, I'm an originalist.  That's with a small "o," like the small "r" in the republican that I also am.  I won't bore you with the difference between my kind of originalist and the kind the Right wants on the Court.  I'm just saying that I take the words in the document seriously.

So, when the Constitution says, in Article II, Section 2, that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court...", I believe that an originalist must regard as a dereliction of Constitutional duty the failure of any Senator to perform with respect to any nominee for "judge of the supreme Court" the actions that the founders intended be performed with respect to such a nominee.  And it is, therefore, the obligation of any such originalist, should he be offered the chance, to decline to take a seat for which a prior President made a nomination that the Senate has refused, with clearly partisan political motives, to consider.

Judge Gorsuch said in his remarks on being nominated that any judge who likes every decision he has to make is not a good judge.  Well, here's his chance to put his money where his mouth is.  If he takes the Constitution as seriously as those supporting his nomination say, without irony, that they want him to take it, he should decline the nomination until the Senate has dealt with the nomination of Merrick Garland.

I wonder what would have happened if President Obama had sued the Senate, claiming that its stonewalling his nomination of Judge Garland violated the Constitution.  Ignoring the procedural hurdles, how would Justice Scalia would have voted on that one?  How would Justice Gorsuch? Happily, President Obama did not bring that case, and I don't hear any suggestion that such a case is in the offing.  As a result, Judge Gorsuch may legitimately be asked about his reading of the Senate's responsibilities under Article II, Section 2, without the questioner having to worry that the issue might arise before the Court.

I would urge the Democrats on the Judiciary Committee to press Judge Gorsuch for his views, as an originalist, on the Constitutionality of the Senate's treatment of Judge Garland's nomination.  And then, whatever he says, I would urge the Democrats on the Senate to vote "nay" on Judge Gorsuch on the grounds that his very standing for the office is inconsistent with his claimed devotion to the Constitution and with the oath to uphold it that he will take as he usurps Justice Garland's seat.