It is all but guaranteed that President Trump’s nomination of Neil Gorsuch to sit on the Supreme Court will create a political inferno, aggravating the hysteria that is fracturing our nation. The debate involves numerous controversial issues, such as abortion, gay rights, campaign finance, affirmative action, religious liberty, and the constitutionality of social legislation such as the Affordable Care Act.
Here are five basic questions about our constitutional system that should be asked of any nominee to the Supreme Court. While I don’t consider the recommended answers sufficient to determine if a candidate should be appointed, they are a necessary first step.
Question One: The Supreme Court has created many “fundamental rights” that it vigorously protects. Over time, the Court alters these rights. Which fundamental rights are the most fundamental?
Answer: To prevent the Republic from degenerating into mobocracy, oligarchy or tyranny, the Court must uphold the electoral process. Elections should never be suspended. For example, Americans conducted a pivotal Presidential election in the middle of the Civil War. The Court also must protect the right to vote from unwarranted governmental interference.
Furthermore, elections are meaningless if people do not have robust freedom of political speech. The government should not be able to suppress particular viewpoints. Nor should governments punish anyone for “seditious libel.” The Court should interpret Brandenburg v. Ohio to hold that a defendant did not commit criminal incitement unless they intentionally encouraged people to violence and there was good chance that their inflammatory rhetoric would soon cause violence. In other words, it would never be a criminal act to encourage nonviolent civil disobedience. These core First Amendment rights protect individual sovereignty, self-expression, and the ability to participate authentically in the political process.
Perhaps the most important civil right is a citizen’s right of personal mobility. After a criminal conviction, most other rights mean little. The government should not be able to incarcerate an American citizen unless tried in an Article III Court by a jury of their peers (a right found in the Magna Carta). Thus, I agree with the dissent in Hamdi v. Rumsfeld, written by the late Justice Scalia and joined by Justice Stevens. The Supreme Court should not have permitted military tribunals to adjudicate terrorism charges against American citizens. It is too tempting to call political opponents “terrorists” and imprison them. There is not a lot of support for Scalia’s position among the elite, but sometimes the Court gets it terribly wrong.
Question Two: The Supreme Court has become a major political issue. Witness the furor surrounding your nomination. Do you think the Court has become too involved in electoral politics? If so, how can it escape?
Answer: The Court has become too entangled in partisan politics. The Court should show significant, but not absolute judicial restraint by presuming that most laws and governmental actions are constitutional. The Court also should be wary of revisiting most prior constitutional decisions. I would be reluctant to strike down a law unless at least five other Justices agreed. There are too many five-to-four opinions reflecting the competing ideologies of the two major Parties.
Question Three: What is the greatest threat to this nation’s domestic tranquility and the social fabric? What can the Court do to alleviate the problem?
Answer: Feeling a loss of power, the populace has become shrilly divided along racial, gender, class, and religious lines. At a minimum, the Court must not permit governments to discriminate maliciously and expressly against people because of their race, gender, ethnicity, religion, or political viewpoints. The Supreme Court’s decision to outlaw overt school racial segregation in Brown v. Board of Education was one of its greatest acts.
Question Four: Do you believe in “the rule of law?” What does it mean to you?
Answer: While it might be more accurate to say that our legal system consists of “the rule of law and judges,” we will lose our republic if the “rule of law” is discarded. The phrase has many meanings. The heart of the doctrine is that nobody, including the President of the United States or the CEO of Goldman Sachs, is above the law. For example, Clinton v. Jones properly decided that there is no absolute Presidential immunity.
There is extraordinary fear and anger right now. People across the political spectrum need to know that the Supreme Court will always protect their basic civil liberties.
Question Five: We would like to learn a bit more about your character. You have had a remarkable legal career. What have you done outside of the law to humbly help people without expectation of reward?
Answer: I have not relentlessly focused on my career. Here are some examples of how I have assisted friends, family, and individual members of the community….
These hoped-for answers provide a strong foundation for our republican system as long as most people across the political spectrum agree. Americans have developed a large set of core values and traditions that can sustain the best aspects of our society and provide us with the means to adapt to new challenges. Whatever you think about my opposition to military tribunals, there is much more common ground and good will than many Cultural Warriors on both sides would have you think. If not, then we have much more to worry about than Donald Trump or excessive political correctness.