(The imagined dialogue with Judge Gorsuch continues at his confirmation hearing).
Welcome Judge Gorsuch on behalf of the minority members of the Judiciary Committee of the United States Senate. We have some questions for you, which I will being to ask and others of my colleagues will continue if my time runs out.
Let me start by establishing that you are a graduate of Harvard University School of Law. I would observe that while there are 202 accredited law schools in the United States only three are represented on the Supreme Court – those of Harvard, Yale and Columbia. I have always taken umbrage that, by way of example, the Stanford law school or those of USC or UCLA, again only as examples, are not represented on the court. Of course Judge Garland shares the same infirmity. He too graduated from Harvard Law.
It is a fact I find it not surprising but astonishing. Do you think it right that there is an inside track to the high court that has been laid only to those three schools? Maybe we need an informal rule — one justice per law school but no more than that.
I also note Judge Gorsuch that my research says you were baptized a Roman Catholic but have converted to be an Episcopalian. I mention this knowing it makes everyone squirm with discomfort that I do, only because it is worth noting that if confirmed you will be the first Protestant — in a nation that is still more than 50 percent Protestant — to be a member of the high court since the retirement of Justice John Paul Stevens in 2010. It is merely an observation, you need not respond.
Now that we have confirmed those facts Judge Gorsuch, can we also confirm that you have been a member of the Federalist Society, an organization founded in 1982? And would you agree or disagree that the society is an instrument of very, very, very conservative lawyers across the nation created to impress and impose a narrow understanding of the U.S. Constitution across the entire universe of federal and state courts and judicial interpretations and rulings?
You do know that its members have also included Supreme Court Justices Clarence Thomas, Samuel Alito, and the late Justice Scalia, Justice William Kennedy and, it is believed but not fully confirmed, Chief Justice John Roberts? So, yes, you have been a member of the Federalist Society? Should there be a private society of lawyers bent on inserting a single and singular ideological viewpoint into the entire federal judiciary? Is that not in fact, if it is a fact, perhaps, a touch seditious?
Can you confirm then that the Federalist Society proclaims in the declaration of principles, found on its web site, that it is founded on a principle that “…the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. “?
You recognize those words? Good, then please explain to me why anyone would think that statement is inherently — and only — a conservative viewpoint as opposed to an American viewpoint? A viewpoint that a liberal lawyer might subscribe to just as well?
If you answer yes, then why is there a need for a national organization of right wing lawyers to profess and press that principle that I am certain most if not all American lawyers would endorse but perhaps not deem it necessary to imprint on the federal judiciary?
Is it correct that the Federalist Society has taken this principle to evolve a fixed, immutable, inflexible ideological doctrine that holds that in making their rulings the courts, but especially the Supreme Court, should be guided by the “original intent” of the drafters of the Constitution?
Am I correct in stating that is the society’s doctrine? Is it correct that Justice Scalia adhered to it fervently and ferociously in his writings and rulings and may in fact have been its foremost advocate?
Do you subscribe to the principle and theory of original intent? Especially as so frequently proclaimed in his written opinions but also in speeches and other writings by Justice Scalia?
If you had to choose between the Declaration of Independence and the United States Constitution, which document would you say is the true foundational document of the nation, the one that best reflects the original intent of the founding fathers?
Is it the Declaration, which in its most pertinent part declares?
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Or it the Constitution, which in Article I, Section 2 at paragraph 3 states in determining the apportionment of each state’s number of seats in the House of Representatives:
“… Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons…”
There is a pretty fundamental difference between the two there, isn’t there? Between “all men are created equal” and “three fifths of all other persons”?
Who were those “all other persons, each to be counted as but “three fifths” of a person? Were they paid maids and footmen and butlers and cooks, paid field hands in cotton, sugar and tobacco fields and rice paddies? They weren’t paid at all were they? They were slaves, weren’t they?
And were not all slaves in 1787, the year when the Constitution was written, signed and ratified, black people — not that all black people in the new United States were slaves because some were free, but because all who were slaves were black men and women? Isn’t that true?
So, which is the true expression of our national original intent, that “All men are created equal” or that a black person indeed is not a whole person but only “three fifths” of a person?
If confirmed you will sit down the bench from Justice Clarence Thomas, who is an African American. Is it the original intent of the drafters of the Constitution that Justice Thomas, a believer in original intent, be counted as three-fifths of a person? That his vote on the high court should count only as three-fifths the value of your vote or the vote of any other justice who is not a black person?
I think now about what Abraham Lincoln said at Gettysburg in November 1863: “Four score and seven years ago our forefathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal”; and you know of course judge that on that day, by referring to events 87 years before, President Lincoln took his audience back to 1776 and the Declaration, not to 1787 and the Constitution? I would say that is further evidence that the original intent of the nation, never mind its Constitution, is the equality of all people? Do you agree?
Oh, I know judge these are interesting questions.And I wonder if you have ever really thought about them, or thought them through?
Elsewhere, at Article IV, Section 2, Paragraph 3, the Constitution declares:
“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
You recognize that language? Who did it refer to? Was it not part of the underlying basis for the Dred Scott decision in 1857? Is that decision not then a fine example of original intent?
If you think not, then please tell the committee why not? Tell us why it was not sound on the basis of original intent when the exact language of the Constitution left no doubt as to the intent that a slave “but shall be delivered up on Claim of the Party to whom Service or Labour may be due.”
And, while we are on the subject please tell me which decision better reflects the original intent of the drafters of the Constitution; Plessey v. Ferguson (1896) or Brown v. Board of Education (1954); and explain your answer and then explain why when harsh conservative judges make law it is entirely within the bounds of original intent, but when more progressive, forward thinking justices make law it exceeds original intent?
Isn’t it a matter that in interpreting laws and the Constitution, judges and justices – all justices no matter their political pedigree — make law? That the only difference is the perspective and philosophies that guide them? That neither side has an exclusive hypocritical claim to being mere appliers of law but not makers of law?
(Please continue to the final part, Part 3).
Peeling the Onion 