« It's Gorsuch for Supreme Court
Michael Ramsey
| Main | Cass Sunstein on Originalism and Unpopular Outcomes
Michael Ramsey »

02/01/2017

Gorsuch Roundup
Michael Ramsey

A sampling: 

Neal Katyal in the New York Times: Why Liberals Should Back Neil Gorsuch [via Instapundit]

Adam Liptik in the New York Times: In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style

Ilya Somin at Volokh Conspiracy: Thoughts on the Gorsuch pick

Jonathan Adler at Volokh Conspiracy: A supreme nomination to the Supreme Court

Ed Whelan at NRO: A Supreme Successor to Justice Scalia (concluding "Neil Gorsuch has an impressive judicial record as an originalist" and you know that's not an easy compliment to win from Ed Whelan).

Brent Kendall in the Wall Street Journal: Judge Neil Gorsuch Backs Scalia’s ‘Originalist’ Approach.

Robert Barnes in the Washington Post: Neil Gorsuch naturally equipped for his spot on Trump’s Supreme Court shortlist ("Like Scalia, Gorsuch is a proponent of originalism — meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written — and a textualist who considers only the words of the law being reviewed [ed.: and the context in which they were written!], not legislators’ intent or the consequences of the decision.").

And from earlier: this profile, linked here -- The Administrative Law Originalism of Neil Gorsuch.  And this assessment from SCOTUSblog.

Apparently the coming irrelevance of originalism was proclaimed too soon.

Here's why I think both sides of the political debate should be happy, or at least accepting, of a textualist/originalist like Judge Gorsuch (assuming that's what he is).  With a textualist you get what the law says, and with an originalist you get what the law  meant when enacted.  To be sure, in close cases, people being human, you may end up with the judge's policy intuition.  But in general a textualist/originalist has a commitment to something objective, beyond policy intuition in the particular case, and so is more likely to go beyond policy intuition.  As a result, a "conservative" textualist originalist will (as this essay said of Scalia) not infrequently end up with "liberal" results -- at least, more often than a nonoriginalist conservative.  So liberals shuold welcome a textualist/originalist nomination, at least as compared to the likely alternative.

Doesn't this mean, though, that conservatives should be wary?  True, Justice Scalia reached more liberal results that, say, Chief Justice Rehnquist.  But the textualist originalist offers conservatives something they want:  an anchor.  The "conservative" Justice who follows policy intuition may reach all conservative results, but that person is also more likely than the textualist originalist to "drift left," as other Republican appointees have.  The textualist originalist has an anchor in a ideological (meant in a good way) commitment to methodology over results.  Thus Justice Scalia reached fewer liberal results than, say, Justice Souter.

In sum, the textualist originalist has something for each side.