Leahy Tells Gorsuch: ‘Originalism…Remains Outside Mainstream’

By Susan Jones | March 21, 2017 | 5:33 AM EDT

Sen. Patrick Leahy (D-Vt.) gives his opening statement at the confirmation hearing of Judge Neil Gorsuch on Monday, March 20, 2017. (Screen grab from C-SPAN)

(CNSNews.com) – It’s not a good thing for a Supreme Court justice to interpret the Constitution based on the Founders’ original intent, two Democrats told Judge Neil Gorsuch at his confirmation hearing on Monday:

“In contrast to past nominees like John Roberts, whose judicial philosophy was not clearly articulated when he appeared before this committee, Judge Gorsuch appears to have a comprehensive originalist philosophy, the approach taken by jurors such as Justice Scalia, Justice Thomas, former Judge Bork,” Sen. Patrick Leahy (D-Vt.) said in his opening statement.

“While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of moderate constitutional jurisprudence.

“It has been 25 years since an originalist has been nominated to the Supreme Court. Given what we've seen from Justice Scalia, and Justice Thomas and Judge Gorsuch on record, I worry that it goes beyond being a philosophy and it becomes an agenda.”

The late Justice Antonin Scalia once defined originalism this way:

"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."

At Monday’s hearing, Leahy urged Gorsuch to answer all questions asked of him at the hearing “as clearly as possible.”

“It's important to understand -- determine whether  you understand the court has a profound impact on small businesses and workers, on law enforcement and victims, on families and children across America,” Leahy said.

“It is not contrary to the duties and obligations of a Supreme Court justice to consider the effects of their rulings,” he added.  (He said nothing about Congress considering the effects of its laws.)

Leahy said the confirmation hearing will help the Senate decide if Gorsuch is “committed to the fundamental rights of all Americans":

“Will you allow the government to include our Americans’ personal privacy and freedom? Will you elevate the rights of corporations over those of real people? And will you rubberstamp a president whose administration has asserted that executive power is not subject to judicial review?” he asked.

Sen. Dianne Feinstein (D-Calif.), the committee’s ranking member, also expressed concern about “originalist” philosophy:

“Judge Gorsuch has also stated that he believes judges should look to the original, public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist, judicial philosophy to be really troubling," Feinstein said. "In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789.

“However, to do so would not only ignore the intent of the framers, but the Constitution would be a framework on which to build. But it severely limits the genius of what our Constitution upholds. I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.”

At the beginning of the hearing, Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, warned Gorsuch that he would get questions that would cause him to scratch his head:

We'll hear that when you rule for one party and against another in a case, it means you must be for the winner and against the loser. Senators will cite some opinions of yours and then we'll hear that you're for the big guy and against the little guy. You will scratch your head when you hear this, because it's as if you judges write the laws instead of us senators.

But if Congress passes a bad law, as a judge, you are not allowed to just pretend that we passed a good law. The oath you take demands that you follow the law, even if you dislike the result.



So if you hear that you're for some business or against some plaintiff, don't worry. We've heard all of that stuff before. It's an old claim from an even older playbook. You and I and the American people know whose responsibility it is to correct a law that produces a result that you dislike, it's the men and women sitting here with me.

Good judges understand this. They know it isn't their job to fix the law. In a democracy, that right belongs to the people. It's for this reason that Justice Scalia said this, quote, ‘If you're going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusion you reach. If you like them all the time, you're probably doing something wrong,’ end of quote.