Why Heller votes for Gorsuch (besides the obvious)

April 6, 2017

“During his confirmation hearings,” reads a statement from Sen. Dean Heller’s office, “Judge Gorsuch rightfully stated, ‘There’s no such thing as a Republican or a Democratic judge.’ It wasn’t just rhetoric either.”

Heller is, uncharacteristically, correct. It wasn’t just rhetoric. It’s the conviction among so-called originalists that their interpretation of the Constitution is infallible. Their surrender to ideology is so complete they don’t even recognize it as ideology. They think they are beyond ideology. To view jurisprudence as Gorsuch does is not to be Republican or Democratic, not left or right, just incontrovertibly correct.

Faith in the startling brilliance of their theory can lead originalists to take a perverse pleasure in defying common decency. For instance, any rational person would agree that another person should not be fired for refusing to freeze to death on company time. But Gorsuch isn’t just any rational person. He’s super-rational (just ask him), supremely (and smugly) confident that however counter-intuitive it may seem, his judgment is merely the product of a superior intellect cultivated by inspired study. A truck driver’s death is unfortunate. But what worth is the life of one mere mortal when weighed against the immaculate intellectual elegance of original intent and, as Heller put it, “profound respect for the rule of law”?

Others have illustrated  the fiction of Gorsuch’s claim to objective purity better than I can. But when original intent is invoked, or when some Republican swears fealty to “strict interpretation of the Constitution,” as Heller does, I can’t help but be reminded of Hamilton, Madison and the First Bank of the United States.

In 1790, Hamilton, always eager to get the wealthy invested in the new nation and its prospects, said let’s establish a Bank of the United States. Madison, Hamilton’s erstwhile partner writing the Federalist Papers (much beloved by Gorsuch & Co.), and other strict constructionists said No! No! No! there’s nothing in the Constitution that says Congress can establish a bank, and if the Constitution doesn’t specifically say Congress can do it then Congress can’t do it. To which Hamilton replied, Wow that’s dumb (I’m paraphrasing, but not much), because power is not just enumerated in the Constitution, but also implied, and if it wasn’t, all the Constitution would provide is a government that couldn’t do anything.

President Washington sided with Hamilton’s implied powers argument and signed the bank bill, which means that the “father of our country” could not win a Republican primary today, and if nominated to the Supreme Court would not even be granted a committee hearing by Mitch McConnell. But back to the matter at hand: The very people who drafted the Constitution and fought side-by-side to get it approved in the states disagreed among themselves over how to read the damned thing.

As I’ve said before, Heller is a throwback to when lightly populated western states had senators who spent what little clout they had on cow policy. His state has passed him by.

 

Heller’s blithe agreement with Gorsuch’s ideology was likely acquired by osmosis, the product of a life spent soaking in rural Republican culture. And really all Heller needed to know to approve Gorsuch was that a) all the other Republicans were doing it and b) Gorsuch will always rule in favor of the most important thing in this or any other nation: business.

But those factors were omitted — too obvious, perhaps — from Heller’s statement. So Heller, or whoever writes Heller’s stuff for him, praised Gorsuch’s “understanding that our Constitution cannot be re-written” and the judge’s “unquestionable commitment to the law of the land,” as if all a justice needs is the aforementioned “strict interpretation of the Constitution,” and Supreme Court cases will decide themselves.

It’s a simplistic view, one that ignores and disrespects the Constitutional and national history that Heller professes to hold so dear. But they do love that kind of talk up at the Farm Bureau.