02 February, 2017

SCOTUS ~ President Trump seeks to fill the vacancy

President Trump has nominated Judge Neil Gorsuch to fill the Associate Justice vacancy in the Supreme Court of the USA created by the death, in February 2016, of  Associate Justice Antonin Scalia.  Judge Gorsuch is currently serving as a Federal Appellate judge in the United States Court of Appeals for the Tenth Circuit.

In March 2016, President Obama nominated Judge Merrick Garland  to fill the vacancy but, for entirely political reasons, this did not proceed to the required nomination hearing - see CNN Politics 16th March 2016.  Judge Garland’s nomination lapsed on 3rd January 2017 at the end of the 114th Congress.  Judge Garland appears to have behaved with exemplary dignity in the face of all of this. 

Interpretation of the Constitution is, of course, the fundamental role of the Supreme Court of the USA and it is this which has resulted in some rulings of the court being highly controversial.  It also adds a very significant political element to the process of selecting new justices.  The court has the power to declare that legislation is unconstitutional.  Interestingly, this right was established by the Supreme Court in Marbury v Madison  5 US 137 (1803) – see the judgment.  

The White House announcement of Judge Gorsuch's nomination notes that Judge Gorsuch "has a superb intellect, an unparallelled legal education, and a commitment to interpreting the Constitution according to its text."  [My underline].  The announcement continues - "Judge Gorsuch was born and raised in Colorado. He attended Columbia University and Harvard Law School. After graduating with honors, he received his doctorate from Oxford University as a Marshall Scholar.   Judge Gorsuch clerked for Judge David Sentelle of the D.C. Circuit and both Justices Byron White and Anthony Kennedy on the Supreme Court.  Following a successful career in private practice, Judge Gorsuch joined the Department of Justice as the Principal Deputy Associate Attorney General.   In 2006, President George W. Bush nominated him for the U.S. Court of Appeals for the Tenth Circuit, and he was confirmed by voice vote without objection.   He has served with distinction, earning a reputation as a brilliant jurist with an outstanding intellect and a clear, incisive writing style, and he is universally respected for his integrity and fairness to all parties."

Since Justices have life tenure, if Judge Gorsuch is eventually appointed, he could serve for many years.  He is 49 years old at present.  The longest serving justice to date is William Douglas who served 36 years - from 1939 to 1975.

Formal written documents such as the United States Constitution have given rise to schools of thought as to how they are to be interpreted.  Neil Gorsuch is described as a proponent of originalism, the idea that the Constitution should be interpreted as perceived at the time of enactment, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law.   The links below lead to material considering these terms.  
A similar tension exists in the UK with regard to the European Convention on Human Rights (ECHR) - The Guardian 22nd December 2013.  The European Court of Human Rights has developed the "living instrument" doctrine so that the various rights are to be interpreted according to modern conditions and attitudes - J. Silvis - Human Rights as a Living Concept.  The 2011 speech by Lady Hale (Deputy President of the Supreme Court of the UK) is well worth reading on this subject.

Previous post:

14th February 2016 - Vacancy at SCOTUS.


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