Deanell Reece Tacha is dean of Pepperdine University School of Law and former chief judge on the U.S. Court of Appeals for the 10th Circuit. Robert Henry is president and chief executive of Oklahoma City University and a former chief judge on the U.S. Court of Appeals for the 10th Circuit.
As the country prepares to watch the hearings on a nomination to the Supreme Court, predictions abound as to how Judge Neil Gorsuch — if confirmed — would lean or even vote on this or that case. Indeed, toward the end of the presidential campaign, both Hillary Clinton and Donald Trump detailed their ideal Supreme Court justice in debates by predicting how she or he would vote on a given issue or case. But these essentially political discussions tend to distort the role of judges in our government.
Our primary Framer for the courts was none other than Alexander Hamilton, of recently renewed fame. Describing the judiciary in Federalist 78 as the “least dangerous” of the three branches of government, Hamilton emphasized that the “complete independence of the courts of justice is peculiarly essential in a limited Constitution.” This “independence of the judges” is a most sacred tradition in U.S. constitutional law, requiring all judges to have no obligations to those who nominated or confirmed them.
Besides — as history has revealed — it is not even possible to select Supreme Court justices based on how they might rule on given topics. Detailed discussions during the confirmation process on issues that might come before a judge are not proper; in fact, they would in all likelihood require recusals from the cases discussed. Litmus tests are not acceptable. Furthermore, the controversies that go before the court often bring unique and complicated facts that could completely change a judge’s sincerely espoused view.
Another critically important input into judicial decisions is precedent. Our common-law system venerates precedent, most specifically when that precedent is old and long-settled by many judicial cases. Precedent might override previously held views or even logical interpretations of legal text.
These factors — tradition, independence, precedent and unique facts — often combine to lead judicial nominees to change their views when confronted with specific cases, which may conflict with the interests of the appointing administration.
We are both former chief judges on the U.S. Court of Appeals for the 10th Circuit. One of us is a lifelong Republican; the other, a lifelong Democrat. We both had the opportunity to serve with Gorsuch for several years on the 10th Circuit. He was, like most good judges, assiduously attentive to the facts and law in each case. All of the matters mentioned above (and others) should influence — or even change — a judge’s decision dealing with the specific set of facts in any case before him or her.
Gorsuch’s body of work is surely informed by both textualism and originalism, but he was, in our experience, always open to consideration in the proper cases of precedent, history, tradition and the “bones” of our federal republic’s structure. Other important traits of Gorsuch that are not likely to change: his fair consideration of opposing views, his remarkable intelligence, his wonderful judicial temperament expressed to litigants and his collegiality toward colleagues.
Justice Oliver Wendell Holmes once described his fellow justices as “nine scorpions in a bottle.” Having that view was not a good way to win friends and influence people, and does much to explain why Holmes’s best work was often expressed in dissent. Gorsuch, in contrast, writes beautifully and accessibly; he will find no need to wield an acid pen or improperly characterize his colleagues.
If we seek to confirm to the Supreme Court a noted intellect, a collegial colleague, and gifted and eloquent writer — as well as a person of exhibited judicial temperament — Gorsuch fits that bill. He represents the best of the judicial tradition in our country. We think that Hamilton would concur.
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