'A JUDGE who likes every opinion he decides is likely a bad judge."
This is how Judge Neil Gorsuch introduced himself and his philosophy to the American people on Tuesday evening, moments after his nomination to fill the U.S. Supreme Court vacancy created by Antonin Scalia's death last February.
The statement does not rise to the level of some of the more eloquent pronouncements of Supreme Court justices or nominees. It doesn't have the power of Justice Thurgood Marshall's defense of the First Amendment: "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
It doesn't have the chilling, stirring quality of Justice William O. Douglas' allusion to the Fifth Amendment: "The critical point is that the Constitution places the right of silence beyond the reach of government."
It is not self-evident, yet achingly beautiful in its simplicity, like Justice Robert H. Jackson's observation that "Civil government cannot let any group ride roughshod over others simply because their consciences tell them to do so," something the protesters at Berkeley might want to file away in their iPhones for future reference.
But even though the nominee's comment does not reach the lofty heights of judicial eloquence, it is extremely powerful, for one reason: It is indicative of a man who possesses professional humility and a recognition of the nature of his role on the bench.
In saying a good judge is someone who is forced to decide matters in ways that might offend his own priorities and violate his values, Gorsuch confirmed that he would not substitute his ego and his sense of justice for the objective mandate of the law as written.
Of course, that freaked out the kind of person who thinks a judge is simply a pedigreed soothsayer who looks into the legislative crystal ball and attempts to figure out what the lawmakers actually meant when they put words to paper.
For years, many of us have watched in horror as the Constitution has been treated like a dish towel, something you dunk into the opaque and soapy water of "intent," then wring out to produce a puddle of socially significant precedent. We dunked the Bill of Rights into that progressive bucket and squeezed out Roe v. Wade, a decision that has absolutely no basis in any of the amendments Justice Harry Blackmun dishonestly cited as cover for his ends-oriented holding. We dunked it again and squeezed out Citizens United, creating a slick puddle on which lobbyists and monied cronies can slide their way into the affections of the Congress and the White House. We dunked it again and wrung out a precedent that discovered a right to same-sex marriage, much to the horror of the man whose death brings Gorsuch to the steps of the high court.
Hopefully, this nominee will be a bulwark against this ridiculous trend toward a "living document," one that has no fixed principles or pole star but simply serves as a mirror for a society that keeps changing its reflection.
But, you say, we must change or we die. We cannot be stagnant, and evolution is the thing that keeps us moving forward. The dinosaurs have departed.
That is, of course, true. But it is also transparently dishonest to deny that liberals tend to impose their own sense of "progress" on the static, foundational principles in the well-calibrated document bequeathed to us by Alexander Hamilton, James Madison and the rest. Blackmun was not compelled by the Fourth Amendment and the penumbras to legalize abortion. He wanted to make the procedure legal and dug deeply into the document to figure out a plausible way to make it stick (he failed miserably, as most constitutional scholars will attest).
Anthony Kennedy was not visited by the Ghost of Earl Warren in his sleep and told that he must, must find a way to legalize gay unions because the equal protection and due process clauses demanded immediate action. He just wanted to please a very large and very vocal group of supplicants before the court, so he wrote an opinion that mixed Harlequin romance with a view that shattered millennia of social tradition.
John Roberts didn't have an epiphany one day while eating his bran and realize that the Constitution required us to institute nationalized health care. He was presented with a challenge to a law that some people liked and some people hated, and he didn't want to get into the middle of a civil war, so he made up that fairy tale about it being a tax. And, voila, Obamacare was saved (for the time being).
This happens all the time, and it happened when conservatives prostituted themselves to the lobbyists to give corporations a soul, and it happened most despicably in 1857's Dred Scott decision, when seven white men found that the Constitution followed the strange mathematics that transformed a black man into three-fifths of a human being (a sad premonition of what it would do to an unborn child a century later).
All of this playing around with words is bad for constitutional business. And that is why President Trump's choice of Gorsuch is so breathtakingly good. Putting aside the fact that the GOP should hang its collective head in shame for blocking the vote on Merrick Garland, an act that justifies the anger and opposition from Democrats, this nominee will restore a balance to the court that has been missing since Scalia's untimely death.
We need humble men and women on the court who understand their proper role as arbiters and interpreters, not creators and conjurers. Gorsuch has a history as an originalist, which means he looks to the intent of the framers, and as a textualist, which means he looks to the common-sense meaning of words.
Even though he clerked for Anthony Kennedy, whom he deeply admires, he won't be digging up rights that don't exist and describing them in breathless purple prose. Gorsuch has a record of protecting religious freedom against government encroachment, to the delight of the plaintiffs in Hobby Lobby; is a strong supporter of the rights of both gun owners and criminal defendants; and doesn't believe the administrative beast created by our federal agencies must be continuously fed. Most of all, he mirrors Scalia in the most important way of all: humility before the Constitution and an unwillingness to substitute his personal preferences for precedent.
This was the home run Trump promised and, this week at least, desperately needed.
Christine Flowers is a lawyer.