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Judicial Philosophy on Trial

Judicial Philosophy on Trial
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Dear Reader —

As Congress and the White House struggle to reach an agreement on a House bill to repeal and replace the Affordable Care Act — a bill that the Senate could well reject in any case — Washington is awash in déjà vu. This time, the rancor is entirely internecine. The conservative House Freedom Caucus has emerged as an unlikely antagonist of President Trump, who campaigned on a platform of repeal and replace but does not share the libertarian scruples of the Tea Party wing. Without a Democratic president to unite against, the GOP coalition risks coming apart along philosophical lines that can no longer be papered over.

Meanwhile, another familiar Washington ritual was on display this week: the confirmation hearings for Supreme Court nominee Neil Gorsuch. Critics like to complain that this has become a bloodless exercise in which nominees feign neutrality on the controversies of the day while senators grandstand for the cameras. Fair enough. (Though the spectacle almost makes one nostalgic for an era of such innocent political theater.) Yet, in addition to testing the temperament of the would-be justice — it takes a man or woman of unusual equanimity to endure such an ordeal with composure — such proceedings reflect important facets of our judicial system and the political climate in which it now exists.

Start with politics. The attempt to pin down a Supreme Court nominee on the “hot button” issues of the day is a relatively modern phenomenon, stemming from a political climate in which, increasingly, our liveliest — and typically morally fraught — disputes are resolved via legal, rather than legislative, means. These are splashy, though perfectly safe, waters into which the senators can wade in full public view. The reluctance of a Supreme Court nominee to join them does not reflect an artificial disinterestedness so much as a prudence needed for a genuinely independent judiciary. No less should be expected from the men and women whose job it is to make decisions based on the merits of the cases brought before them. Ideally, the legislature would not demand political promises, but limit itself to evaluating a nominee’s qualifications and judicial philosophy. 

And when it comes to Gorsuch’s judicial philosophy (to say nothing of credentials) we know what we’re getting. The debate tends to focus on how judges will interpret our Constitution — “originalism” versus “living constitutionalism” — but the fact is hot button constitutional cases make up only a small minority of those heard by the Supreme Court. Instead, most concern questions of statutory interpretation, which are of less interest to the public (though sometimes more impactful on our daily lives). Gorsuch believes that statutes should be interpreted according to the wording provided by the text — as opposed to its legislative history or intent — a doctrine known as “textualism.” Whatever one might think of that doctrine, it’s hardly the stuff of extremism, which may be why these statutory decisions often defy the familiar 5–4 nose count.

And yet, as of this writing, Senate Democrats have indicated they plan to filibuster Gorsuch’s nomination, inviting the Republicans to “go nuclear.” Just in case you thought the dysfunction was limited to one side.

These are some of the many issues taken up at RealClearPolicy over the past two weeks. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy

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The Problems with Originalism. In The New York Times, Ken Levy offers a critique of a method of constitutional interpretation famously associated with the late Justice Scalia and attributed to Neil Gorsuch.

Gorsuch’s “Natural Law” Philosophy Isn't Scalia’s Originalism. For Vox, J. Paul Kelleher examines the influence of “natural law” philosophy on Gorsuch’s jurisprudence and what it might mean for the Court.

Blue-State Secession Is Dumb and Cruel. In The Nation, Paul Blest argues the left-wing push for states’ rights and secessionism fails to address “why some states in America have become so red.” 

Trump’s Big Budget Mistake: Not Investing in Skills. In our own pages, Rachael Stephens argues proposed cuts to federal job training programs would harm workers and the economy.

GOP Health Plan Reduces the Deficit, But Leaves Millions without Care. Also in our pages, Harold E. Ford, Jr. contends the GOP health-care bill would not only leave millions uninsured but also negatively impact Medicare coverage for seniors.

Gorsuch’s Collision Course with the Administrative State. In The New York Times, Philip Hamburger considers what Gorsuch’s judicial philosophy might mean for the Supreme Court’s practice of “deference” to executive agencies. 

Can Activist Judges Be Controlled? For American Greatness, Mark Pulliam suggests what Congress could do to rein in a judiciary he considers dominated by “liberal judicial activism.” 

Should You Need a License to Work in Texas? In RealClearPolicy, Josiah Neeley makes a case for reforming occupational licensing requirements in the Lone Star State. 

Getting the GOP Health Plan (More) Right. Also in RealClearPolicy, Mark Warshawsky writes that the American Health Care Act is a good first step and offers suggestions for improving it.

The Little Death Spiral That Couldn't. For RealClearHealth, Stan Veuger and Benedic Ippolito explain why Trump's back-up plan to let Obamacare fail won't work.

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