DeMint: Gorsuch is a model for future judicial nominations
© Greg Nash

Most politicians are probably glad to put the Neil Gorsuch experience behind them, given the partisan rancor surrounding his confirmation battle. They shouldn't be. Debates over the "nuclear option" aside, the process by which he was selected offers presidents of both parties a model for future nominations. 

For many decades, presidents have played their cards close to the vest as they weighed potential candidates for the high court. Some anonymous source might leak a name or two, but no one could be sure how reliable the information was. It was often simply guesswork. So when a nominee's name emerged, it was often a complete surprise. (Hello, Harriet Miers.)

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That wasn't the case this time. President Trump turned convention on its head and made his selection process transparent from start to finish. Well before he was elected, he announced his intention to name a justice from a list of individuals compiled by conservative organizations such as The Heritage Foundation. Gorsuch was among those suggested. Months before the Senate confirmed him, everyone knew he was among those being considered by the president.

 

As a result, by the time Trump tapped Gorsuch, the judge had been thoroughly vetted by anyone with an interest in the process. The media had plenty of time to dig into his background. So did the senators who would be asked to vote on him. There was no need to scramble in the wake of a nomination — and therefore more time to ensure that what we learned was based on good authority, not rumor or speculation.

The American people were, in effect, given a chance to vote on the nominee. This includes grassroots conservative groups who could see the depth of all the candidates on the president’s list and see that Trump was indeed adhering to his campaign promise to select a judge who applies the law as written — not as he would like it to be written.

Throughout the process, Gorsuch showed that he takes his job seriously, striving to keep his personal views out of the courtroom and demonstrating his fidelity to the Constitution. Try as they might, Senate Democrats could not derail the confirmation of this highly qualified and well-respected judge. Gorsuch’s confirmation is a victory for those who believe that courts should not overstep their limited role in our government.

Hopefully, Trump will follow the same playbook for any future Supreme Court vacancies during his administration and select other nominees with a record of applying the laws and Constitution according to their original public meaning. We need judges who understand that they are not legislators in robes who can pluck whatever meaning they wish from a so-called "living Constitution." And since many cases never reach the Supreme Court, Trump should apply the same standard for selecting lower court nominees.

The stakes are high. The newest justice joins the court just in time to hear the last few cases of its current term, including one involving a state discriminating against churches in giving out public grants. In the coming years, Gorsuch and the other justices will likely have to adjudicate the clash between religious liberty and gay rights—in cases dealing with cake bakers, florists, and others involved in the wedding industry.

Gun rights is another area in need of the Supreme Court’s attention. Since the court’s landmark Second Amendment rulings in 2008 and 2010, the lower courts have struggled to define the contours of that right outside the home. Finally, a key legal doctrine that props up the administrative state—Chevron deference—may be on the chopping block.

Gorsuch’s confirmation, unfortunately, does not change the balance of power on the Supreme Court between justices who are committed to the text and original public meaning of the laws and Constitution, and those who put their policy preferences and personal beliefs first. Over time, liberal activist justices have steered the court away from our Founding Fathers’ vision of the Supreme Court as “the least dangerous branch” of government and transformed it into one that wields power over virtually every aspect of American life.

The only way to reset this imbalance is for President Trump and future presidents to prioritize appointing justices with a proper understanding of the limited but crucial role our courts play — and to do so in a transparent manner. The confirmation of Neil Gorsuch is an important first step toward returning the Supreme Court to its proper role. 

Jim DeMint is president of The Heritage Foundation. He represented South Carolina in the United States Senate from 2005-13.


The views expressed by contributors are their own and are not the views of The Hill.