The trials of Judge Neil M. Gorsuch, before the Senate Judiciary Committee en route almost certainly to his place on the Supreme Court, reveal one of my favorite findings regarding modern politics, to wit: The Democrats are the extremists, the Republicans are mainstream. The Democrats are the ideologues; the Republicans base their policies and political judgments usually on philosophy.
When it comes to choosing justices for the Supreme Court, Republicans and conservatives put aside their ideal judicial outcomes and settle on purely apolitical criteria. They decide to cast their vote for or against a candidate for the court purely on whether the candidate has demonstrated a sound knowledge of the law, has demonstrated good judgment in applying the law, and has sound moral character.
A candidate’s duty, once the candidate is raised to the Supreme Court, is to see to it that each case corresponds to the rules of the Constitution or the letter of statutes. If a case does not, it is for the legislators to change the law. It is for the Congress to legislate. It is for the judiciary to see to it that the legislation is in accordance with the Constitution.
Democrats and the left see things differently. To them the courts — in Gorsuch’s case, the Supreme Court — are to make judgments that accord with their political views. To their minds the courts are superior to the elected legislators. In other words, the courts are the last word in the legislative process. So I suppose the American citizenry could save a lot of money and public angst by simply disbanding the legislative branch. The judiciary and the bureaucracy are sufficient for running the state.
This is not what the Founding Fathers had in mind, but it comes pretty close to what enlightened progressives have been leaning toward all these years and what President Barack Obama was achieving in his many executive orders. Forget Arthur Schlesinger’s elegant remonstrance against The Imperial Presidency. It all depends who the president might be, Richard Nixon or Barack Obama or, for that matter, President Hillary Clinton.
Thus the American left sees nothing wrong with a lowly judge out in Hawaii or in Washington state frustrating the president of the United States by ruling against his executive order on immigration even though such an executive order dealing with refugee policy clearly has been allowed by the Constitution. This, of course, opens the door for anarchy. A lowly court in Hawaii can preempt the president, even the Congress. What next?
Judge Gorsuch last week in the course of his testimony summed up the conservatives’ much more modest formula for choosing justices and deciding cases. He quoted, not surprisingly, Justice Antonin Scalia, who said, “If you ’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
As I say, I think the essential extremism of the American left can be seen in their formula for choosing justices. They would choose justices who see themselves as above the other branches of government and above the Constitution itself. The conservatives see themselves as complementary to the other branches and subservient to the Constitution. If they want to change the Constitution, they go to the onerous process of changing it or its laws. Conservatives are for limited government. Liberals are for hog-wild government, which is very piggish of them.
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