April 03, 2017

Judicial Duty To Follow The Law

Guest column submitted by U.S. Senator Mike Crapo

As a member of the Senate Judiciary Committee, I met with Judge Neil Gorsuch, who President Donald Trump nominated to serve as Associate Justice.  Judge Gorsuch’s comments during our talk still resonate.  He said, “My personal views are irrelevant as a judge.”  That is the ideal illustration of a judge steadfastly committed to our law and upholding the separation of powers defined in our Constitution.  Through 20 hours of public testimony, he reaffirmed his commitment to the Oath of Office and Judicial Code of Conduct requiring judges to be steadfastly impartial and ensure fair justice. 

The Founders of our Constitution established a clear division of responsibility between the three branches of government.  Congress would make the laws.  The executive branch would implement them.  The judicial branch would review the laws for their conformity with the Constitution.  This separation guards against government oppression, as James Madison wrote in Federalist 47, “The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.”  In Federalist 78, Alexander Hamilton described these limits when writing about our judicial branch that, “may truly be said to have neither FORCE nor WILL, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgement.” 

Americans are rightly concerned when justices substitute their personal philosophies for the law.  Judges who reimagine law undermine a fundamental cornerstone of our government and erode our liberties.  Our Constitution provides for law to be enacted legislatively with public accountability through the sanction of the American people through the ballot box. 

In Federalist 51, Madison described ways to help ensure that the separation of power is not worn down when he wrote, “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.”  Judge Gorsuch’s focus on the principle that a judge is a servant of the law, not the maker of it, honors this resistance to encroachment.  He has expressed his firm grasp on the duty of the judiciary.  He wrote, “Legislators may appeal to their own moral convictions and to claims to reshape the law as they think it should be in the future.  But judges should do none of these things in a democratic society.” 

Article II, Section 2 of our Constitution provides for the Senate’s advice and consent on judicial nominations.  I have met several Supreme Court nominees in my service in the Senate.  Throughout, I have continued to maintain that an emphasis on following the law and upholding our Constitution must be a central characteristic of the justices selected for this highly-influential federal branch.  Judges have a great responsibility to carefully exercise their authority within the limits of the law.  Our court system has the responsibility to preserve our constitutional rights, ensure a limited government and provide speedy and fair justice.  I look forward to Justice Gorsuch reinforcing this important responsibility on the U.S. Supreme Court.

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