The Briefing 02-01-2017

Part I

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Trump nominates Neil Gorsuch, a textualist in the mold of Antonin Scalia, to the Supreme Court

Saying, “I kept my word, I do what I say,” President Donald Trump last night nominated Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals to fill the seat vacated on the U.S. Supreme Court by the death of the late Justice Antonin Scalia. Speaking to an assembled group in the East Room of the White House, the President announced Gorsuch, also making very clear that he put a great deal of thought and intentionality into the nomination. In making the announcement last night, President Trump said,

“Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support.”

He went on to say,

“It is an extraordinary résumé — as good as it gets.”

Speaking of the bipartisan support, the President was harkening back to the confirmation vote that Judge Gorsuch received for his current judicial spot in the Federal Appeals Court seated in Denver. The Senate confirmed him by a 96 to 0 vote and it was simply a voice vote. Don’t expect that in terms of the confirmation hearings or in the political dynamic that is now set up by the President of the United States making this nomination.

Make no mistake; this is a very important nomination. And for those of us who are looking for a particular way of looking at the Constitution that is in keeping with Justice Scalia’s tradition, and for those of us who care about the sanctity and dignity of human life, we have to understand this win in terms of the nomination is absolutely monumental, and about that I will now explain.

In terms of his qualifications, the President described him well last night. His undergraduate degree is from Columbia University, his legal education from the Harvard Law School, both of those degrees received with honors. He also was a Marshall Scholar at Oxford University from which he received eventually the Doctor of Philosophy degree, so he is an unusually qualified candidate just in terms of his academic background. Furthermore, he served clerkships at the United States Supreme Court, not just with one, but actually with two justices. The first was Justice Byron White and the second, Justice Anthony Kennedy. Both Justices were mentioned by Judge Gorsuch last night, but there was a particular affinity when it came to mentioning the late Justice Byron White. The reason for that is also clear when you look at the judicial philosophy that is represented by Judge Neil Gorsuch. He is a strict constructionist and originalist—in the words of the late Justice Antonin Scalia, a textualist. He believes that it is the text of the Constitution and the statutory law that is first in importance and it is the rightful conservative interpretation of the meaning of the text as it is applied to contemporary circumstances, keeping in mind that the text itself is the first authority, even down to words and syntax and then extended to the fact that the Constitution and the statutory law that follows are actually themselves to be the governing authorities, rather than an extrapolation of new rights and insights that supposedly are to be found in the Constitution or in statutes when they clearly were never intended to be there in the first place.

Any judge at times has to go back to old, perhaps even archaic statutes or very old language such as the U.S. Constitution and apply it to contemporary questions. But in this view we go back to what Justice Scalia described as original intent. The judge’s responsibility, then he insisted, was to go back to the original language and do the best possible to try to determine the original intentions of those who adopted the language. That stands in contrast to the progressivist reign of legal interpretation which sees the text as a place to begin the conversation. And that liberal trajectory has been in the main the major influence in law schools and in so many courts ever since the 1960s.

Last night Judge Gorsuch described the late Justice Scalia as “a lion of the law.” In a lecture delivered last year at the Case Western Reserve University School of Law, Judge Gorsuch said,

“Mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure.”

After the President’s announcement last night, the scene will shift to the Committee on the Judiciary of the United States Senate. It will bear the first responsibility to hear Judge Gorsuch and also to make a recommendation to the Senate. This is going to be a pitched battle. It’s going to be not only Republican versus Democrat, we will see displayed before us two very different interpretations of the Constitution and the law and therefore the role of judges in our society. And as I made clear yesterday on The Briefing, both sides truly understand what is at stake here.

The left is bitterly disappointed in the loss of Hillary Clinton in the presidential election, because they saw this seat as their opportunity to shift the Court decidedly to the left, perhaps for a generation or more. Meanwhile, conservatives are exhilarated by the opportunity not only to preserve the seat of Antonin Scalia, but perhaps to influence future appointments to the Court and to solidify the direction of the Court again for perhaps a generation or more.

An illustration from the nation’s history might help us to understand why a single Supreme Court justice can be so determinative. The second President of the United States was John Adams. He was a Federalist like George Washington; he was also the last Federalist President of the United States of America. He was defeated in his effort for a second term by the third president of the United States, Thomas Jefferson, of a different political party who wanted to take the nation in a very different direction than the Federalists. But Jefferson was constrained, as were following presidents, by the continuing Federalist influence in terms of the understanding of the Constitution and the role of the federal government that was embodied in John Marshall, the Chief Justice of the United States Supreme Court. He had been appointed to the Court and to that role by President Adams. President Adams was gone once he was defeated for office, but John Marshall continued for three decades as the Chief Justice of the United States.

At age 49, there’s every reason to expect that Judge Gorsuch could serve for decades on the nation’s highest court. Even before the announcement was made, some leading Democrats in the United States Senate were signaling that they would vote for no candidate, no nominee that was put forth by President Donald Trump. Senator Jeff Merkley, a Democrat of Oregon, said,

“This is a stolen seat. This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this.”

Last night President Trump gave the most presidential of his public statements since taking office, and last night Judge Gorsuch demonstrated a command of the platform and a style that is likely to make it very difficult for anyone in the Democratic Party and the Senate to demonize him in terms of the hearings. He has both poise and equanimity and as an articulate spokesman for a conservative interpretation of the Constitution added to his unquestioned qualifications, he’s going to be a formidable nominee.

But as I said moments ago, I’m particularly encouraged by this nomination for a reason that the mainstream media has not yet understood. And that has to do with that Doctor of Philosophy degree that was undertaken by Judge Gorsuch as a Marshall Scholar at Oxford University. He did his doctoral work under John Finnis. Professor John Finnis is perhaps the most influential figure in the modern world when it comes to natural law theory. He has been a very influential figure. He was also the doctoral supervisor for Robert P. George, a very prominent conservative intellectual who is the McCormick Professor of Jurisprudence at Princeton University.

Neil M. Gorsuch, not yet Judge Gorsuch, wrote a book based upon his dissertation at Oxford that is entitled, “The Future of Assisted Suicide and Euthanasia.” It was published by Princeton University press, and it is a brilliant display of legal and moral reasoning. It’s also a brilliant display of natural law reasoning as applied rightly to contemporary questions such as euthanasia and assisted suicide. The careful moral distinctions made in this doctoral dissertation include this,

“Ultimately, it is hard to avoid asking whether the assisted suicide-euthanasia distinction some seek to draw reflects anything more than a calculated, tactical decision by euthanasia proponents to fight political legal battles piecemeal in order to enhance their chances of ultimate success.”

He goes on to say,

“The distinction between the practices is made almost exclusively in American debate. The Dutch and most others who have completed legalization seek little reason to distinguish between euthanasia and assisted suicide.”

In terms of its larger project, Gorsuch’s dissertation at Oxford University is a brilliant defense of life as a fundamental good. That’s a very important moral statement. Life is a fundamental good. He means this about all life, but specifically about the gift of human life. When it comes to his critique of assisted suicide and euthanasia, he gets to his point in the conclusion when he writes,

“After considering arguments from history, fairness, autonomy doctrine and theory, and utilitarianism, I suggested that courts and legislators may wish to consider a less frequently voiced perspective on the assisted suicide and euthanasia question, one grounded in the recognition of human life is a fundamental good. Under this view,” he says, “private intentional acts of homicide are always wrong. Recognizing human life as intrinsically, not instrumentally, valuable will rule out,” he argued, “assisted suicide and euthanasia.”

The most important words in those statements have to do with human life as a fundamental good, recognizing, as he wrote, that the human life is intrinsically good and valuable, not merely instrumentally good and valuable. That is the kind of moral reasoning that is so sorely needed on the nation’s highest court, understanding life itself as a fundamental good. That is not a direct reference to abortion; it doesn’t have to be. It’s a direct reference to what should be very obvious to any intelligent and sensitive human being. And that is that human life is a fundamental good; it is an intrinsic good. There doesn’t need to be any particular qualification beyond the gift of life for a human being’s life to be understood as sacred and for that human being to be recognized as possessing full human dignity intrinsically, not merely instrumentally, not merely on the basis of some capacity that the individual may or may not hold or on the basis of what society may view as the usefulness or uselessness of an individual human life in terms of the larger project of society.

It’s impossible to exaggerate just how helpful it will be, how healthy for our society, to have this kind of moral reasoning, this kind of philosophical approach, this kind of legal interpretation brought to the nation’s highest court.

But at this point, there’s another historical footnote that really is important. Justice Antonin Scalia has to be recognized in the history of American legal understanding and in the history of the Supreme Court as one of the most influential justices of all time, of our entire history as a nation. That’s because Justice Scalia effectively shifted all the terms of legal debate and debate about the interpretation of the Constitution. But as fundamentally important as Justice Scalia was and as invaluable as he was during his tenure on the court, Justice Scalia never himself made arguments quite like those we now see coming not just recently, but over time from Judge Neil Gorsuch.

Immediately after President Trump’s announcement last night I released a statement in which I said,

“I’m very encouraged by the nomination of Judge Neil Gorsuch to the United States Supreme Court. I am thankful that President Donald J. Trump has made this announcement, and I fully support this nomination. Judge Gorsuch is committed to textualism and will uphold the Constitution of the United States. His academic credentials are impeccable and his experience as a clerk for two Supreme Court justices and his own distinguished tenure as an appeals court judge qualify him for this nomination without question. He deserves immediate and positive consideration by the judiciary committee and speedy confirmation by the United States Senate. Judge Gorsuch is committed to the same respectful approach to the U.S. Constitution that was the hallmark of the late Justice Antonine Scalia. This nomination is right for the court and right for the times.”

Part II

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What was behind Trump's decision to fire acting Attorney General Sally Yates?

Next, we turn to another front-page story in American law and the role of government. This has to do with Monday night’s development as the President of the United States fired the acting Attorney General. As the Washington Post reported,

“President Trump fired acting attorney general Sally Yates on Monday night after she ordered Justice Department lawyers not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.”

The Post continued,

“In a news release, the White House said Yates had ‘betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.’”

The White House then announced that the President was appointing the U.S. attorney for the eastern district of Virginia as a temporary acting Attorney General, but that person holds no confirmation by the Senate and is unable to make some of the decisions that can only be made by one of the top three figures in the Department of Justice, all of which require Senate confirmation. This sets the stage for a continuing debate, especially with the upcoming vote in the Senate concerning the nomination of Senator Jeff Sessions to be the next Attorney General of the United States. If anything, this new development puts a certain urgency into that question.

In any normal political context, the firing of the acting Attorney General of the United States by the President of the United States would be a monumental story, something talked about for decades thereafter. I don’t think that’s going to be the case in this particular situation because it is so highly charged politically, and that’s the dynamic behind the story. It’s also a very short-lived issue in terms of the fact that Sally Yates was only going to be acting Attorney General of the United States for a matter of days after she made the fateful decision to announce that the Justice Department under her leadership would not defend the President’s executive order signed over the weekend. Yates was a holdover from the Obama Administration; she wasn’t going to be serving in the Justice Department more than a few days anyway. But the fury over her firing and, furthermore, the fury over her decision that prompted the firing have both led to no shortage of political hot air.

There are some very big issues of real consequence involved here. Even some members of the President’s own party believe that at least some sections of the executive orders that he signed over the weekend might be either illegal or unconstitutional, and this includes some who support the general intention behind the executive orders. It is now more or less admitted by the White House that the process for developing this executive order and the policies behind it was very quick—of course it was. The President was just inaugurated a few days ago and the proposal that was then enacted into effect by the executive order was not vetted as would be the normal circumstance by lawyers at the Justice Department as well as other federal officials.

But here is a very important issue. The acting Attorney General of the United States was, effectively, politically grandstanding in stating that she would defend none of the President’s executive order. She dismissed it all, using language that was not particularly legalistic in terms of the fact that she seemed to be driven by not just legal and constitutional considerations, but by her own moral judgment about the policy. That’s not the role of the Attorney General of the United States; it’s certainly not the role of an acting Attorney General of the United States. And some who will come back and say, “Well, there were genuine moral issues, genuine issues of constitutionality at stake,” need to recognize the legal principle of severability. That’s the principle whereby a legal authority can separate or sever certain sections of, say, a law or a contract or in this case of an executive order for the President of the United States without dismissing the entirety. When the acting Attorney General of the United States put a hold upon the entire executive order, that was an act that wasn’t justified by the fact that the President of the United States clearly has constitutional authority over immigration policy and wide areas of policy concerning refugees. And that is really beyond question.

I discussed the actual executive order, the text of the order and the context, on Monday’s edition of The Briefing, and I stand by that evaluation. But we are now looking at a situation in which there is far more heat than light in terms of the controversy. If anything we are in a worse situation than we were just after the weekend. The commentariat classes of this society seem bent on arguing at each other than having a sustained, reasonable, constitutionally and legally informed discussion of the executive order, its impact, and all the legal questions that are attached to it.

At this point the indictment should be bipartisan—neither the White House nor its critics have made an adequate case in terms of all the issues that are involved, and the White House bears responsibility for rushing a policy that even by the admission of some within the administration failed at crucial point of implementation that many of the critics pushing back seem more determined to score points than to actually make arguments that are helpful in terms of crafting the nation’s immigration and refugee policies in a way that will best serve the nation and our national ideals.

Part III

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What, then, is a boy? Boy Scouts will now accept transgender "boys" into membership

Finally, an absolutely stunning story came on Monday as the Chicago Tribune reports,

“The Boy Scouts of America announced Monday that it will allow transgender children who identify as boys to enroll in its boys only programs.”

This is yet another shoe to fall, so to speak. But in this case, it is particularly troubling, and it’s troubling not just in the fact that the Boy Scouts of America has taken another step towards the full embrace of the LGBT revolution, but for what it means for society and virtually every institution targeted for total surrender to this revolution and all that it represents.

But just consider this Chicago Tribune article and the opening words we just read. The organization is known as the Boy Scouts of America—and it has historically been known as just that—according to the story, it’s going to now allow transgender children—you’ll notice these are neither girls nor boys, simply children who identify as boys. Just consider how in the world someone from any previous decade in human history would try to understand what it means for a child to identify as a boy. But then it goes on to say, it’s going to allow these children who identify as boys to enroll “in its boys only programs.”

Now just to state the matter clearly, once this policy is in effect, and that was immediate, there is now no sense to an organization called the Boy Scouts of America and there’s furthermore absolutely no sense in saying that the Boy Scouts of America has boys only programs, because that is now fundamentally untrue. It’s untrue, unless you buy into the ideology that gender is nothing more than a social construct and that gender identity is not something that is determined by biological sex. This decision was probably inevitable once the Boy Scouts of America capitulated nationally on the question of openly gay scouts back in 2013 and then went on just a couple of years later to affirm the leadership of adults who would be volunteers in the organization who were also openly gay. In language that is practically Orwellian, the Boy Scouts spokesman said,

“For more than 100 years, the Boy Scouts of America, along with schools, youth sports and other youth organizations, have ultimately deferred to the information on an individual’s birth certificate to determine eligibility for our single-gender programs. However,” said the spokesman, “that approach is no longer sufficient as communities and state laws are interpreting gender identity differently and these laws vary widely from state to state.”

The article on the announcement that appeared in the New York Times, an article by Niraj Chokshi opened with this,

“Reversing its stance of more than a century, the Boy Scouts of America said on Monday that the group would begin accepting members based on the gender listed on their application, paving the way for transgender boys to join the organization.”

The key issue to look at that is the opening set of words: “reversing its stance of more than a century.”

Now I want to be understood very clearly when I say the Boy Scouts of America hasn’t had a stance over against transgender involvement for a century. If you go back a century, no one would’ve even understood what we’re talking about here. But 100 years ago, there would’ve been the common sense that we understand who a boy is and who a girl is and also the common sense that you can’t have the Girl Scouts of America if you don’t know what a girl is and you cannot have the Boy Scouts of America if you don’t know what a boy is. There is tremendous loss in this, and I say that as a former Boy Scout and one who throughout my lifetime has had great admiration for this organization and its role in American society, especially in the lives of so many boys and young men.

But the larger sense of loss is the tragedy for the entire society when it is unable to draw the necessary distinctions that affirm God’s purpose in creation and will also lead to human happiness and human flourishing. To state the matter just fundamentally, it is a real tragedy that boys will not know organizations for boys, nor girls organizations for girls. Oh, and one last point, the mother of the child at the center of this policy change, this child who was a girl identifying as a boy who is now to be admitted to the Boy Scouts programs, she said that she would not allow her child to rejoin unless the scout leader who made the previous decision leaves. So not only here do we have evidence of the moral and sexual revolution at its greatest volume, we also see the fact that it intends to accept nothing but total surrender.