He shall have the Power, by and with the Advice and Consent of the Senate…–Constitution Article II, Section 2
Brian Leiter is a professor at the University of Chicago Law School. In the Washington Post he writes:
Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power: They have to decide what should be done based on their own moral and political values, since existing legal standards conflict, or are indeterminate, or are silent on the problems they confront. The Supreme Court, as the final court of appeal in our system, is the super-legislature of last resort. And that is why Republicans blocked Garland’s nomination and why Trump chose Gorsuch. Republicans expected Garland to vote against their objectives on the super-legislature. Trump expects Gorsuch to vote with the Republicans.
Donald Trump, in today’s “1600 Daily” e-mail writes:
Judge Gorsuch is an inspired choice with sterling academic credentials, a brilliant legal mind and a steadfast commitment to constitutional principles. Judge Gorsuch will honor the legacy of Justice Antonin Scalia. He is a strong believer that judges should base their decisions on the law and the Constitution, not on their own policy preferences or personal feelings.
What a difference–Trump denies the obvious fact that these nominations are political. Professor Leiter continues:
Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial. As a super-legislature, it has limited jurisdiction, depending on what cases are brought before it, but those cases are important enough. Just as no one would expect Republicans or Democrats to assent to appointments to the Senate without regard to political ideology, it is naive to expect anything similar in the case of nominations to the Supreme Court.
President Trump says that his nominee will “honor the legacy of Justice Antonin Scalia.” At the very least, the Senate should consider what that legacy is and why it is or isn’t consistent with “justice for all.”
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