(The imagined dialogue with Judge Gorsuch concludes at his confirmation hearing).
Now, returning to an understanding of original intent, am I correct that the only language in the Constitution concerning the appointment of Supreme Court justices and their consideration by the U.S. Senate is stated in ‘ARTICLE II, SECTION 2, Paragraph 2 (concerning ‘THE POWERS, &C., OF THE PRESIDENT”?
Let me read that portion of the Constitution to you. It says – under the heading, “TREATIES, AMBASSADORS &C.” — noting that the word “He” means the president:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Judge Gorsuch, have I accurately quoted the Constitution there? Am I correct that it is the only language in the Constitution that references the power and duty of the president to appoint and the responsibility of the Senate to confirm justices of the Supreme Court?
Then sir, can you point me to anything in that exact language that says a president may not or shall not nominate a Supreme Court justice in the final year of his term of office? Is there anything, implicit or explicit, in that language that would even suggest that presidents are barred from making such nominations in the final year of a presidential term?
Moreover, is there anything in that language, implicit, explicit or otherwise to suggest that the Senate can ignore and abjure giving its “advice and consent” to such a nomination simply because it has been made in the final year of a president’s term of office?
Can the Senate actually concoct the notion that a final year SCOTUS appointment can be put aside to await the will of the people in the next presidential election when in fact it is already the established will of the people that the sitting president has and should exercise his duties and that the Senate should exercise its duty if a president nominates a justice in the final year of his term of office? Well, apparently the majority in the Senate did just that, didn’t they?
Where in the original intent of the U.S. Constitution would you find that? Where do you believe Sen. McConnell found it? Or Sen. Charles Grassley of Iowa, who presides here today as chairman of this committee but refused last year to schedule or conduct a hearing as to the qualifications of Judge Garland?
By the way, Judge Gorsuch, did you know any of the drafters of the Constitution? No, of course you didn’t, none of us did; the last of them died pretty nearly 200 years ago.
Yet you are certain you know what they originally intended in every word and phrase of the Constitution and you are certain they meant it to be unchanged and unchanging 240 years later?
Remarkable insight to know that. Remarkable.
You do know Judge Gorsuch that it is a mistake to call the drafters and signers of the Constitution founding fathers? That, really, some would say that is a term more rightly given to the signers of the Declaration of Independence, not the Constitution, which came 11 years later?
And you do know that not every founder was a signer? And not every signer a founder? That there were 56 founders who signed the Declaration and 39 signers of the Constitution but only six men signed both? You know that I hope Judge Gorsuch?
And, just as an aside, do you think President Trump knows that? Knows any of the facets of the Constitution we have been discussing?
Then how are we to divine the original intent of the Constitution when we are caught between knowing the intent of the founders in declaring the nation, and the intent of the signers in crafting structure for its government?
Am I correct that beginning with the first ten amendments, the ones called the Bill of Rights; the Constitution has been amended 27 times? Didn’t the original document provide for a process by which these amendments could be proposed and enacted? That’s at Article V, correct?
Then would it be correct to say that the original intent of the drafters anticipated that the Constitution would change over time and that none of it was or is set in stone? Why else would they have made provision to change it?
If we agree that there are only the constitutional references to persons who were slaves that I have cited – those “other persons”, do we agree as well that the only time the word slavery appears in the Constitution is in Article XIII, the Thirteenth Amendment, which abolished it?
And that’s so even though Article I, Section IX, Paragraph 1, states:
“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight (1808), but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”
Who were “such persons”? Were they not in fact Africans captured and brought out of Africa in chains, against their will to be sold into slavery in this nation?
How many of the original 13 states were outright slave states? If I said those were Georgia, South Carolina, North Carolina, Virginia, Maryland and Delaware, would I be correct?
Taken then in its entirety, and given some of the language we have discussed Judge Gorsuch, would you agree or disagree that the overall intent of the drafters of the Constitution –and therefore of the document itself — was to establish the form of a national government and the rules by which it would conduct its business; what that business was to be about; how the powers and responsibilities of the branches of government it created would be shared and administered, and what would be left in the hands of states and their governments?
And in all of that would you agree or disagree that their original intent was to accomplish that while weaving a narrow path between free states and slave states?
Do you truly imagine that men who could do that, who had spent their adult lifetimes fomenting, leading, shaping, compromising and forming a new nation and its governmental structure, flowing from a declaration that all men are created equal; do you truly imagine that 240 years later five or six men would or should take it upon themselves to declare that they and only they know what was truly in the minds of those 39 men who signed the Constitution on Sept. 17 1787?
So, in the end, Judge Gorsuch, and the middle and the beginning as well, is there any way to interpret the Constitution that is not activist? Has not the Supreme Court of the United States become the Supreme Legislative Branch of the United States government?
And might both sides in this interminable war over the membership and control of the court be better served by a 28th Amendment to the Constitution that would establish a federal judicial retirement age of 72, or at most 75, so that there would be more frequent turnover of seats on the high court; with considerable likelihood that would go a long way to giving balance to the court’s rulings and reduce the level of contention on display last year in the denial of a hearing to Judge Garland and on display today in the hearing you are getting that he did not?
Would it not be in the best interests of the citizens of the United States of America to tell Supreme Court justices that when they reach the age of 72, they must retire and make way for a successor? Will you pledge to do that with or without a 28th Amendment?
Whose seat do you see yourself as having been appointed to fill Judge Gorsuch? That of Justice Scalia? Or that of Judge Garland?
You needn’t answer sir. The question is rhetorical. I know the answer to that one.
Peeling the Onion 