President Trump has nominated Neil Gorsuch to the Supreme Court, and now his fate rests with the Senate. As was true last year, the Senate — which, despite our obsession with the presidency, remains an equal partner in this process — can do whatever it wishes with the pick. It can ignore it completely. It can hold hearings, or decline to. And it can approve or reject the proposal for whatever reasons it chooses. In addition, the minority party can use its power to question, to block, or to delay — on the understanding, of course, that the majority can change the rules at any time. And, at the individual level, any senator can vote yes or no on any grounds he selects, safe in the knowledge that he represents a separate branch and that it is not incumbent upon him to acquiesce to the presidents’ wishes. As it was a year ago, that’s the beauty of the American system. This not an elective dictatorship.
Substantively, though, I do hope we see a better debate than we have thus far. Last night, almost immediately after Gorsuch’s name was announced, Senator Ron Wyden tweeted this:
Gorsuch represents a breathtaking retreat from the notion that Americans have fundamental Constitutional rights.
My question is: Why? I like Senator Wyden. I think he’s thoughtful and fair-minded, and, on the question of the NSA (on which I dissent from most at NR), I think he’s absolutely right. So why would he say something so silly? I expect to see protestors babbling away stupidly, but I don’t expect to see figures such as Wyden behaving in this way. Neil Gorsuch’s jurisprudence is many things, but “a breathtaking retreat from the notion that Americans have fundamental Constitutional rights” it is most certainly not. It will be amusing to watch Wyden try to square this characterization with the insistence that Gorsuch is an “extremist” for his (assumed) positions on Citizens United and Heller.
When describing the Supreme Court, we like to throw around words such as “left” and “right,” and “progressive” and “conservative.” In truth, though, this makes little sense, because the divide is really over interpretation. Because he was a principled originalist, Antonin Scalia often came to what we might call “progressive” conclusions. This was especially true when it came to the rights of criminal defendants. Gorsuch, who has the same approach as Scalia, will almost certainly do the same (unlike, say, a certain chap named Merrick Garland). As Damon Root notes over at Reason, Gorsuch is on the record as a critic of “pro-government deference in the Fourth Amendment context.” More specifically, Gorsuch has made it clear that “but the government says so” isn’t sufficient justification to ignore the Constitution. By way of example, here he is in U.S. v Carloss:
Whether in arguing that the state enjoys an irrevocable license to enter or in suggesting that No Trespassing signs are categorically insufficient to bar its agents, the government appears to be moved by the same worry: that if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage their job of ferreting out crime will become marginally more difficult. But obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning. Besides, it is hardly the case that following the Fourth Amendment’s teachings would leave the government as bereft of lawful alternatives as it seems to suppose. The Amendment and the common law from which it was constructed leave ample room for law enforcement to do its job. A warrant will always do. So will emergency circumstances.
Or, put another way, Americans have a “fundamental Constitutional right” to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and the fact that this might make the police’s job “marginally more difficult” is irrelevant. As a keen defender of the Fourth Amendment himself, one would have thought Senator Wyden would have appreciated this.
I do not expect Senator Wyden to support Neil Gorsuch if he doesn’t want to. Perhaps he thinks that Gorsuch’s general approach is faulty. Perhaps he worries that Gorsuch, like Thomas, will be hostile toward stare decisis. Perhaps — and I suspect this is it — he is focused on Roe at the expense of everything else. Either way, I do expect him to rise above the habits of the protestors, most of who waited no longer than five minutes before pasting the nominee’s name into the hysterical sentences they’d written already on their signs.