Analysis: Is the Scalia theory that Judge Gorsuch embraces a lofty constitutional doctrine or just an excuse to be conservative?

David. G. Savage, Tribune Washington Bureau on

Published in Political News

WASHINGTON -- When Judge Neil Gorsuch, President Donald Trump's Supreme Court nominee, goes before the Senate next week, it will be a triumphant moment for "originalism," the once-obscure theory that the Constitution should be interpreted according to the meaning of words and phrases as they were understood in the times they were written.

The late Justice Antonin Scalia was the foremost champion of this approach. Often frustrated inside the court, he traveled the country, scoffing at liberals who believed in a "living" Constitution that changes with the times.

Not since the failed 1987 nomination of Robert Bork has a prospective Supreme Court justice so embraced originalism as has Gorsuch, an appellate judge on the Denver-based 10th Circuit. Last year, he said courts must "apply the law as it is, focusing backward, not forward, and looking to the text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be -- not to decide cases based on their own moral convictions or policy consequences they believe might serve society best."

Gorsuch's public endorsement of originalism helped him win the nomination to succeed Scalia, and it is likely to play a key role in the debate over his confirmation.

Advocates of originalism see it as a way to limit the power of judges lest they be tempted to rewrite and revise the Constitution as they see fit. "The theory of originalism treats a constitution like a statute and gives it the meaning that its words were understood to bear at the time they were promulgated," Scalia once said.

He saw originalism as a way to protect democracy, ensuring voters and elected lawmakers, not courts, decide controversies like abortion, same-sex marriage and the death penalty.

Critics dismiss it as little more than a slogan that wraps conservative goals into a lofty constitutional doctrine.

At Gorsuch's days-long Senate Judiciary Committee hearing, which begins Monday, senators are likely to press him to discuss his views on abortion, gay rights, gun control and campaign funding laws. He is not likely to reveal much. Supreme Court nominees usually say they cannot discuss issues that may come before the court -- which of course is why senators ask.

But they may have more success pressing Gorsuch about his views on originalism, which in recent years has become proxy of sorts in the Supreme Court's conservative-liberal divide.

Leonard Leo, a Federalist Society vice president who served as a Trump adviser, said Gorsuch's commitment to originalism was a key factor in his selection.


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