March 29, 2017

Crapo: Neil Gorsuch is the American ideal of a jurist

WASHINGTON, D.C. –  Neil Gorsuch is judge who understands that his duty is to follow the Constitution and deliver justice to all Americans.  That is conclusion of Idaho Senator Mike Crapo, who spoke at length this afternoon from the floor of the United States Senate praising the nomination of Judge Neil Gorsuch, who has been nominated to fill the vacancy caused by the death of Justice Antonin Scalia.

“In Judge Gorsuch, we have a nominee who lives the American ideal of a modest jurist,” said Crapo.  “He understands that his responsibility is not to suborn the powers of others but to help deliver justice."  

Crapo Floor Speech - Gorsuch

Click the image for video of Sen. Crapo’s remarks.

Crapo, a member of the Senate Judiciary Committee, participated in four days of confirmation hearings for Judge Gorsuch last week.  Judge Gorsuch’s nomination is slated to be voted on by the Judiciary Committee on Monday, April 3, and then by the full Senate.  During today’s floor speech, Crapo highlighted Judge Gorsuch’s record and his philosophies.

 On the Judge’s judicial temperament: 

“The man is intelligent, courteous and modest.  He readily seeks the views of those around him.  His approach will be a constructive addition to the U.S. Supreme Court and a benefit to our nation.  His judicial record as a federal judge flows exactly from what he says.  And his message and focus is abundantly clear–judicial modesty and fidelity to the law.” 

On the Judge’s adherence to the Constitution: 

“Judges “take an oath to uphold” the Constitution, not “merely consider it.”  It is their duty to follow the law.  Jurisprudence is not supposed to be the popular arts.  Judges are not vessels for moral causes.  Judge Gorsuch repeats Justice Scalia’s words, " [i]f you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach.  If you like them all the time, you're probably doing something wrong.” 

The full text of Crapo’s speech follows. Video of Crapo’s remarks can be found here or by clicking the image above. 

Madam President. 

I rise to speak about the President’s nomination of Judge Neil Gorsuch to serve as Associate Justice of the United States Supreme Court. 

Whenever great issues, like the future of the nation’s highest court, come before the Senate, it is easy to get lost in the noise and hyperbole. 

Listening to the commentary about Judge Gorsuch, I have found it instructive to ask whether critics have actually met him and listened to his philosophy of jurisprudence.  I have met him, and it is easy to guess that those who oppose him likely have not spoken with him, watched the hearings, or read any of the glowing testimonials from across the political spectrum. 

The invective thrown at Judge Gorsuch seems really to be about something else entirely—about anger at the President, disappointment with the election outcome or concern about holding certain hotly-debated topics of the day.  It appears that critics could substitute almost any name for Judge Gorsuch in their statements and give it with the same passion and concern. 

That is too bad because Judge Gorsuch has been consistently regarded by his peers as pragmatic and among the most gifted legal minds on the federal bench.  The man is intelligent, courteous and modest.  He seeks readily the views of those around him.  His approach will be a constructive addition to the United States Supreme Court and a benefit to our nation. 

His judicial record as a federal judge flows exactly from what he says.  And his message and focus is abundantly clear–judicial modesty and fidelity to the law. 

When our representative government was established in the United States, a heated debate emerged about the purpose and powers of our new federal institutions. 

The founders of our country understood that a system in which law-making was detached from accountability is the quickest path to despotism.  A co-equal judiciary could help temper tyranny and balance the powers of an executive and a legislature stepping over their constitutional powers.  The phrase is “Checks and Balances,” not “usurpation.” 

Alexander Hamilton, who has received much recent renewed attention, wrote at length about the newly-imagined judicial branch of our government.  In Federalist 78, Hamilton wrote, 

[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. 

To the Founders, the division of responsibilities between the three branches of government was clear.  Congress would make the laws.  The Executive would implement them.  The Judiciary would review the laws for their legality and consistency with the Constitution.  Further, the independence of the judiciary would be enhanced through their distinctive selection process so that they could do their jobs without succumbing to swings in popular opinion.  Put succinctly by Chief Justice Roberts during his confirmation hearings, a judge’s proper role is “to call the balls and the strikes.” 

In his testimonial to the late Justice Antonin Scalia, Judge Gorsuch emphasized the importance of an independent judiciary.  He writes, “Judges should…strive to apply the law as it is, focusing backward, not forward, and looking to the text, structure, and history…not decide cases on their own moral convictions…”  

Judges “take an oath to uphold” the Constitution, not “merely consider it.”  It is their duty to follow the law. 

Jurisprudence is not supposed to be the popular arts.  Judges are not vessels for moral causes. 

Judge Gorsuch repeats Justice Scalia’s words, " [i]f you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach.  If you like them all the time, you're probably doing something wrong.” 

Further, Judge Gorsuch states rulings made in an attempt to optimize social utility introduce a question of moral relativism.  “In criminal cases, for example, we often hear arguments from the government that its view would promote public security or finality. Meanwhile, the defense often tells us that its view would promote personal liberty or procedural fairness. How is a judge supposed to weigh or rank these very different social goods?” 

The answer lies in the common point of reference for all judges, be they conservatives or progressives—the written law.  Reading the law is difficult enough without introducing the element of uncertainty.  Court-shopping for a pliant judge, who will interpret the law the way a litigant believes it should read can be destructive to public confidence in the legal system. 

In our democracy, the public expresses its will at the ballot box and empowers its duly-elected officials with the duty to advance that will.  Changes in public attitudes can come quickly and that can be reflected in the results of elections.  Congress is the body most closely connected to the American public because its accountability is directly to the people.  Some observers want judges to be legislators, discarding the black robes for populist impulses.  

Our system of checks and balances is predicated on the fact that change comes deliberately and incrementally, notwithstanding possible wild swings in public mood.  The pace of change can understandably frustrate. However, congressional action is the spirit of the American electorate, exercised with its unique combination of majority rule, minority rights and compromise.  The imperfect cauldron of the legislative process is how change happens carefully, purposefully and properly. 

Unfortunately, impatience can drive people to circumvent the constitutional power of Congress.  The tendency of some to race to a courthouse, bypassing the will of the people expressed through Congress, to compel change is inherently destabilizing to representative government.  Without a direct say in how policy is decided and without the ability to hold people accountable, judges who reimagine law undermine a fundamental cornerstone of representative democracy. 

Judges have a great responsibility to carefully exercise their judicial authority within the limits of the law.  Judges who exercise independence from the anchors of our laws are dangerous to our liberties.  Judge Gorsuch demonstrates that he clearly understands this concept when he writes, “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.” 

Some jurists treat the Constitution like a speed bump as they hurtle down the road reinventing the law.  Substituting ideology for the written law in jurisprudence is the equivalent of changing the law from what it says to what some wish it would say. 

Neil Gorsuch identified this very problem when he wrote in 2005 that, 

. . . The courtroom as the place to debate social policy is bad for the country and bad for the judiciary.  In the legislative arena, especially when the country is closely divided, compromises tend to be the rule of the day.  But when judges rule this or that policy unconstitutional, there is little room for compromise: one side must win, and the other must lose . . . As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

These words reflect a clear understanding of the importance of the separation of powers.  The federal judiciary should not be a replacement for doing the hard work of persuading the public and enacting policy with accountability to the electorate. 

Americans learn civics early in their upbringing that the Constitution guarantees civil liberties and restrains the powers of the central government.  Our court system has the responsibility to preserve our constitutional rights, ensure a limited government, and provide speedy and fair justice when needed. 

The judiciary holds the sole constitutional power to interpret laws properly enacted by Congress.  This authority is expressly distinct from the power bestowed to the legislature to write laws and the executive to enforce them.  This separation of powers plays an important role in the system of checks and balances envisioned by the Founders.  

Public confidence in our legal system is undermined when judges seek to reimagine federal law beyond its clear meaning.  Judges who substitute their personal views for the law can shake the public’s faith in our legal system as an impartial protector of our rights and upholder of justice.  

Judges must follow our Constitution in their decision-making and resist the temptation to make policy.  

Moreover, without the public sanction of the ballot box, policy changes, particularly controversial ones, naturally divide people.  If the judiciary cannot be seen as a neutral arbiter of facts of law, even more people will see individual judges as “one of mine” or “one of yours.” 

The erosion of the humble judiciary began when the Senate confirmation process changed.  In the recent past, district and circuit court nominees used to be confirmed non-controversially. 

Now, instead of looking at the qualifications of the judicial nominee, partisans hope to pre-bake court decisions through the use of litmus tests or demands nominees determine in advance rulings on cases before the matter is argued in court. 

Perhaps this is the logical extension of the over-reliance on some to secure social gains they cannot achieve through the democratic process.  Change is hard and patience is exceedingly rare, but the strongest building-blocks to legitimacy is achieved through consensus and the give-and-take of politics.  

Writing even before he was overwhelmingly approved by this body for his current seat, Judge Gorsuch wrote: 

[In courts,] ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide. At the same time, the politicization of the judiciary undermines the only real asset it has—its independence.  Judges come to be seen as politicians and their confirmations become just another avenue of political warfare.  Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes.  The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process.  Where trial-court and appeals-court nominees were once routinely confirmed on a voice vote, based on their credentials and their ability to serve, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks.  It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.” 

This development puts a severe strain on our republic.  Particularly problematic is the increasing number of split court decisions.  Rulings that are given with a one-vote margin further empower litigants to contest decisions hoping for a more favorable outcome later or in a different court.  Setting precedent, though, becomes so much more difficult for the public when a razor-thin decision is accompanied by a dramatic reinterpretation of law. 

One of the hallmarks of the Roberts Court is its drive to establish precedent not by finding the narrowest reading that can achieve a bare majority, but its endeavor to ground seminal decisions in large majorities and unanimous findings.  Public confidence in the legal system and the finality of a holding is ever greater when we do not see narrow decisions. 

The Judiciary Committee just concluded a four-day review of the nomination of Judge Gorsuch.  In addition to hearing from Judge Gorsuch for over 20 hours, the committee received formal testimony from almost 30 outside witnesses.  

Thousands upon thousands of words were exchanged over the course of the hearing, all in front of the American public.  What the people saw is a thoughtful, humble, and brilliant legal mind in the service of the people. 

In response to a question of mine on Tuesday, Judge Gorsuch said the following, “I come here with no agenda but one, no promises but one: to be as good and faithful a judge as I know how to be.  That is it.  And I cannot promise or agree or pledge anything more than that to this Congress.” 

That statement, and the hearing as a whole, confirmed Judge Gorsuch to be a man of great integrity, a mainstream, exemplary student of the law, whose record shows he is a part of unanimous decisions. On the Tenth Circuit, of all the decisions he has participated in, in the last ten years, 97 percent of the time he was a part of a unanimous court and 99 percent of the time, he was in the majority. 

For days, my colleagues from the other side of the aisle raised the possibility he might have secret intentions to subvert the rule of law or shred the Constitution from the bench.  They parsed single words for hidden meanings, imagined devious strategies emerging from concurring opinions, and searched for cloaked messages in published writings. 

Judge Gorsuch has over 10 years as a jurist with 2,700 opinions to review, yet most of the debate was centered on just four or five cases.  Some senators were just absolutely convinced that they would find some problem.  They did not. 

Let’s talk about what Judge Gorsuch testified to under oath.  Despite repeated efforts to get him to make commitments about how he would rule or how he would reshape social policy, on his first day, he gave no fewer than eight assurances that he follows the law as a judge.  By my count, on the second day, he gave at least 36 assurances that he looks to the law for his rulings.  On the third day, it was 29 more times that he was asked, and again repeated that he would look to the law for his rulings. 

That’s right, he said at least 73 times that he is committed to the law when he hears cases as a sitting federal judge. 

Still, several of my colleagues worried that he had a secret agenda to overturn longstanding legal precedents.  Just in case some are confused, Judge Gorsuch mentioned no fewer than 97 times in these three days that he follows precedent as a judge, as he is bound to do. 

More than 160 times, Judge Gorsuch reminded the Senate and the American public what a proper jurist does–follow the law and the precedent. 

We even talked about the book he co-authored entitled, the Law of Judicial Precedent.  942 pages of dedication to following precedent.  Maybe the title of the book was confusing to some. 

During his oral testimony, he dedicated to:

“rul[ing] as the law requires” 

“reading the language of the statute as a ‘reasonable person’ would understand it”

“respect[ing] precedent” 

And just to put all such questions to rest, he assured everyone that he is “without secret agenda. None.” 

In reviewing his record, it is clear that those who come before Judge Gorsuch receive equal treatment under the law.  He said:

“when I sit on the bench and someone comes to argue before me, I treat each one of them equally. They do not come as rich or poor, big guy or little guy. They come as a person.  And I put my ego aside when I put on that robe, and I open my mind, and I open my heart, and I listen.” 

In Judge Gorsuch, we have a nominee who lives the American ideal of a modest jurist.  He understands that his responsibility is not to suborn the powers of others but to help deliver justice.  Those who have encountered him as a legal advocate, an adversary in court, or a presiding judge all praise his fundamental fairness and suborning of his personal views.  

His respect for the Constitution is not in question.  His experience, wisdom and judgement are not in question.  His capability to serve is not in question.  Commentators from both the left and the right overwhelmingly respect his legal mind and vouch for his commitment to fair jurisprudence.  

Given Judge Gorsuch’s judicial philosophy and his record as a judge, he would be a welcome addition to a Supreme Court seeking cohesive decisions.  His record on the Tenth Circuit is strong.  Five of six of his decisions that did go to the Supreme Court for review have been affirmed by the Supreme Court, including one which he wrote and four out of five on which he joined the decision. 

Not many judges have the experience, temperament and stellar record to match Judge Gorsuch.  Fewer still can garner overwhelming endorsement from colleagues, peers and observers from across the political spectrum.

 Mr. President, some may try to distract from the central point that Judge Gorsuch is extraordinarily qualified and suited to serve as Associate Justice.  Others would like to discuss other things or make his nomination a proxy fight about tangential matters. 

My colleagues and I will vote on his nomination, not those other distractions, and I encourage all of us to remember that.  The Senate should be proud to add Judge Gorsuch to the Supreme Court. 

Thank you, Madam President. 

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