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03/27/2017

Reflections on the Gorsuch Hearings, Part I: Originalists Against Trump and Promise Keeping
Chris Green

As many readers will remember, I was among the initial signatories to the Originalists Against Trump statement released last October. In the interests of candor and humility when they are appropriate, it is worth reflecting on one of the statement’s empirical claims about the President: “We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so.” 
 
Trust in promise-keeping has a special place in our republic. The Article VI constitutional oath is the chief means by which the Constitution imposes on officials a moral duty not to go beyond their delegated powers.  I have written at great length (see here, with some elaboration here,  here, and here) about the way in which Article VI’s reference to “this Constitution” makes, in context, the original textually-expressed meaning the supreme “constitutional truthmaker” in virtue of which constitutional claims must be measured. The oath is the life-blood, both morally and practically, of our constitutional framework. Lack of trust in the oath is civic poison. But trust in the constitutional oath cannot be demanded by those who have not earned, conserved, and treasured it.  
 
Against that backdrop, it is important to give the President a measure of credit for his faithfulness to his promise in judicial selection. Whatever the rest of his policies, President Trump has shown that we were wrong in October in this key empirical respect. Fellow signatory Keith Whittington has noted that however much we oppose the President as a general matter, positive encouragement is obviously appropriate, and important, when the President does things right. And the Gorsuch nomination is something the president did right.
 
President Trump explained the centrality of promise-keeping to his selection of Judge Gorsuch at the time of his nomination:
 
This may be the most transparent judicial selection process in history. Months ago as a candidate, I publicly presented a list of brilliant and accomplished people to the American electorate and pledged to make my choice from among that list. Millions of voters said this was the single most important issue to them when they voted for me for president.  I am a man of my word. I will do as I say, something that the American people have been asking for from Washington for a very, very long time. Today I am keeping another promise to the American people by nominating Judge Neil Gorsuch.
 
Judge Gorsuch himself has written eloquently about the oath and invoked it during his hearings. It was heartening to see even Democratic Senator Patrick Leahy invoke the judicial oath in his questioning, stressing the duty of equal justice to rich and poor, an issue Richard Re has written about recently. The Article VI oath is the ultimate common ground among officeholders, no matter their party or background. Indeed, Article VI was designed to bind our government together precisely by binding all officeholders, state and federal, to a common Constitution.
 
After watching a week of Judge Gorsuch’s patient explanations of his approach to judicial decisionmaking and the details of his opinions when confronted with the choice between a sympathetic litigant and the judge’s view of the law, it is quite clear—to me at least—that Judge Gorsuch indeed treasures the rule of law. President Trump deserves credit for picking a candidate with Gorsuch’s evident devotion to promise-keeping, and he will deserve more if his future judicial nominees display the same devotion.
 
Part II will consider one possible justification why Gorsuch did not say more at his confirmation hearing in response to questioning.