RUTHFULLY YOURS

Judge Neil Gorsuch, President Trump’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

If the Left is going to twist every bit of Trump administration news into fiction, who is going to believe them when, inevitably, there actually is something worth raising hell about? The question is worth asking — for about the tenth time this week . . . and it’s only Tuesday! — in light of the fuss Democrats and their media friends are making over a discussion between just-fired acting attorney general Sally Yates and Senator Jeff Sessions, President Trump’s attorney-general nominee, at a 2015 Judiciary Committee hearing.

Yates, of course, has just made the leap from obscurity to the pantheon of progressive victim-heroes. Knowing she was soon going to be out of her very temporary job as acting AG, she seized the opportunity to go out in a blaze of glory with an act of insubordination against Trump’s executive order (EO) blocking the admission of various aliens into the U.S.

Yates is an Obama appointee. Trump’s EO is anathema to the Left, but regardless of what one thinks of the policy it advances, it is lawful. Moreover, even when orders are not lawful, everyone in the Justice Department knows that one’s choice, upon being given a directive from a superior about which one has misgivings, is to carry out the order or resign. Yates instead chose sabotage. She was rightfully canned, and the only question really worth pondering is why President Trump had maintained her in such an important position in the first place.

Naturally, that will not impede the frenetic campaign to fashion The Legend of Sally Yates — before the clock strikes 8:01 this evening, when Trump’s announcement of a Supreme Court pick turns her back into Sally Who?

Toward both that end and the simultaneous Democratic rope-a-dope to derail or at least delay the confirmation of Senator Sessions and other Trump nominees, the Left has leaped on a portion of Yates’s 2015 confirmation hearing (to become Obama’s deputy attorney general) in which she was questioned by Sessions.

Sessions asked Yates, “Do you think the attorney general has a responsibility to say ‘no’ to the president if he asks for something improper?” Elaborating, he pointed out that, before being confirmed as the nation’s chief law-enforcement officer, attorney general Loretta Lynch had said that she supported President Obama’s lawless immigration policies. Sessions added, “A lot of people have defended the Lynch nomination . . . by saying: ‘Well, [the president] appoints somebody who’s going to execute his views. What’s wrong with that?’ But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say ‘no’?”

Yates responded, “Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.”

On the Saturday afternoon last February when he received word of Justice Scalia’s death, Neil M. Gorsuch “immediately lost [his] breath” and “couldn’t see . . . for the tears.”

In his grief over the death of a justice he deeply admired and emulated, Judge Gorsuch could hardly have imagined the series of events that would lead to his being selected today to fill the Scalia vacancy. And while he has rightly recognized that no one could ever replace Justice Scalia, there are strong reasons to expect Justice Gorsuch to be an eminently worthy successor to the great justice.

Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.

Gorsuch’s judicial outlook is reflected in his beautiful speech (text and video) celebrating — and embracing — Justice Scalia’s traditional understanding of the judicial role and his originalist methodology:

Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to 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 the policy consequences they believe might serve society best.

In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner. He explains why he rejects those critics and instead sides with Justice Scalia in believing that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” The Constitution itself carefully separates the legislative and judicial powers. Whereas the legislative power is the “power to prescribe new rules of general applicability for the future,” the judicial power is a “means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.” This separation of powers is “among the most important liberty-protecting devices of the constitutional design.” Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, “how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes.” Indeed, the “very idea of self-government would seem to wither to the point of pointlessness.”