A Judicial Valentine

By J.F. McKenna

President Donald Trump got a jump on Cupid this year, handing America a Valentine in the person of a federal judge with, as the Associated Press notes, “a writer’s flair and polished legal pedigree.” The President’s intention is to send him to the Supreme Court to succeed Justice Antonin Scalia, who died February 13, 2016.

Like Justice Scalia, Judge Neil Gorsuch is not only a writer with flair and an enviable legal background but a jurist for whom the terms “textualist” and “originalist” are no strangers. Having served on the 10thCircuit Court of Appeals since 2006, Judge Gorsuch called his nomination “a most solemn assignment.”

“It is the rule of judges to apply, not alter, the work of the people’s representatives,” the judge said at President Trump’s announcement Tuesday. “A judge who likes every outcome he reaches is very likely a bad judge.”

All in all, quite a judicial Valentine, don’t you think?

Of course, given the sore-loser approach of Senate Democrats, this Valentine in 2017 could translate into a pre-Thanksgiving pink slip in 2018 for Sherrod Brown. The senior Ohio senator’s vote on the Gorsuch confirmation might be a nail in Brown’s political coffin, especially to voters who passed on the donkey for the elephant in 2016.

As soon as the Gorsuch pick was known, Brown announced his opposition. He declared the nominee to be “far outside of the judicial mainstream,” with rulings that deem corporations are people, are hostile toward anti-discrimination and criminal justice protections, and oppose women’s rights to basic healthcare at places like Planned Parenthood. “The people of Ohio deserve Supreme Court justices who will defend the rights of working families over Wall Street and corporate special interests – and Judge Gorsuch’s record doesn’t pass that test,” said a statement from Brown.

Memo to Senator Brown: It’s not too late to change your mind and vote in favor of the 49-year-old from Denver.

As Senator Ted Cruz of Texas said, “His academic record, his background are extraordinary,” Cruz said. “He was a law clerk to Byron White, who is John F. Kennedy’s only Supreme Court nomination – he was a Democrat himself, Byron White – and Judge Gorsuch’s record is such that he has demonstrated the intelligence, the humility, the faithfulness to law that I think Republicans are going to vote for, but I also hope and believe a number of Democrats will as well.”

More important, Senator Cruz vowed that Senate Democrats would not be able to derail Gorsuch’s nomination, telling Fox News that “one way or another, I believe the Senate will confirm Judge Gorsuch to the Supreme Court.”

To non-lawyers like me, Gorsuch is right in the mold of Antonin Scalia. The first Italian-American to sit on the Supreme Court, Antonin Gregory Scalia embraced an originalist, or textualist, approach to his decision-making.

“The Constitution,” Scalia declared, “is not an organism. It means today what it meant when it was adopted.”  See https://clevelandbusinessreview.org/2016/02/14/a-man-of-words-a-man-of-law/ .

In time Justice Gorsuch will be a “lion of the law,” just as Gorsuch called Scalia.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor, and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their Papillions, Lord Max and Prince Teddy. Reach him at jfmckwriter23@yahoo.com .

 

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A Man of Words, a Man of Law

By J.F. McKenna

By both his life and his death, Antonin Scalia reaffirmed the genius of the American culture, best exemplified by the generations-tested document securing “the Blessings of Liberty to ourselves and our Posterity.” The 79-year-old Associate Supreme Court Justice took his role as arbiter seriously, but understood that his role was but one part of the fabric of the Republic, whose solid basis was the consent of the people.

Justice Scalia, who died on a Texas hunting trip this weekend, was widely known as the model of conservative thought on the high court for 30 years. The first Italian-American to sit on the Supreme Court, Antonin Gregory Scalia embraced an originalist, or textualist, approach to his decision-making: “The Constitution,” he said, “is not an organism. It means today what it meant when it was adopted.”

From there, the Justice took this approach when he wrote the Heller v. District of Columbia decision, which declared the Second Amendment as upholding individual gun rights. In similar fashion, in a 1992 dissent, Justice Scalia charged his colleagues with “personal predilection” in reaffirming the constitutional right to abortion. “It is difficult to maintain the illusion,” he said, “that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”

And only last year, he injected expressions such as “pure applesauce” and “interpretive jiggery-pokery” into his dissent on Obamacare and tax subsidies.

Of course, what should one expect from the son of a professor of languages who had taught at Brooklyn College?

“The two most important things to remember about Scalia — apart from the fact that he was a family man and a faithful Catholic — are the following: He was a heck of a writer, and he was a defender of one of the most important institutions our civilization is based on,” Pascal-Emmanuel Gobry wrote online yesterday. “I think there’s a good chance Scalia might have wanted to be remembered as a writer first, and as a jurist second. Most non-lawyers don’t associate the law and legal documents with great reading, and I don’t blame them. But the legal profession really is all about words, and the best legal minds are by necessity minds that love words and, at least sometimes, know how to use them.”

The good Justice was just such a legal mind, as is detailed in a 2012 New Yorker piece titled “Writing With Antonin Scalia, Grammar Nerd.” Written By Alex Karp, the article follows the relationship between Scalia and lawyer-writer Bryan A. Garner. Here’s a bit of Karp’s account:

Justice Scalia had initially proposed the breakfast after declining to sit for a more formal interview on writing and legal advocacy. By the end of their meal, Scalia had changed his mind, and the two have gone on to form a productive and collegial, if unusual, working relationship. The interview, Garner’s first with a sitting Justice, took place the following October, and he has completed others with almost two hundred state and federal judges, and nine of the eleven Justices who have sat on the Court since. “You’re something of a SNOOT yourself,” Scalia told Garner as they ended their interview, invoking Wallace’s pet phrase for a grammar and usage fanatic, “and that makes me happy.” (Other SNOOTs, according to Scalia, include former Justices Harry Blackmun and David Souter. Ruth Bader Ginsburg shares their zealousness, but, Scalia said, she’s “too polite.”)

Making Your Case: The Art of Persuading Judges,” the first book co-authored by the pair, appeared in 2008. Their second book, “Reading Law: The Interpretation of Legal Texts,” was published by Thomson/West last month. The nearly six-hundred-page tome details Scalia’s judicial philosophy, which they call “textualism.”

“My calculation is we spent about eighty-five to one hundred hours side by side for ‘Making Your Case,’” Garner said. “Probably sixty of those hours, once we had a draft, we actually went through sentence by sentence, together, reading it aloud. We ended up really co-authoring every single sentence of the first book.

Justice Scalia’s words, both his legal reasoning and his linguistic crochets, will be with us for some time, as shall (pray God) The Constitution. In fact, I think it’s fair to suggest that the Justice himself would probably agree that President Obama engage his lawful right to seek a successor for Justice Scalia.

At the same time, I can’t help but think that Justice Scalia—from his new vantage point in a much higher court—is whispering in the President’s ear to choose wisely, with the People in mind.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their dog, Lord Max. Reach him at jfmckwriter23@yahoo.com .