Sen. Sherrod Brown Wants A Liberal Legislator On The Supreme Court

Ohio Sen. Sherrod Brown announced his opposition to the nomination of Judge Neil Gorsuch to the Supreme Court almost before the words were out of the President Trump’s mouth.  He should reconsider and pay more attention to the people of Ohio than the Washington, D.C. shrieking machine.

Judge Gorsuch is simply unassailable as a judge.  He graduated with honors from both Columbia University and Harvard Law, followed by a doctorate in legal philosophy from Oxford.  His decade on the federal Tenth Circuit Court of Appeals has earned him nearly universal respect — even from President Obama’s former acting Solicitor General, who wrote in Wednesday’s New York Times urging liberals to support Gorsuch.

So what’s Sherrod Brown’s problem?  It’s simple: He wants a liberal legislator on the bench.  In his microwaved statement of opposition, Senator Brown failed to cite any flaw of character, any failure of judicial reasoning, any absence of scholarship or wisdom for opposing Gorsuch – or, at the very least, not giving the nominee a full and fair hearing before opposing him. Our senator simply listed reasons that sound like they came straight out of a legislative campaign.

For example, he claims Judge Gorsuch is guilty of “arguing against the rights of working Americans to band together to hold Wall Street and corporations accountable for abuses.” That’s not at all what Judge Gorsuch did — in fact, it’s not what judges do.  (It is what some legislators do, and the legislature is the proper place for such arguments.)

Judge Gorsuch is the kind of judge most Americans say they want — a judge who applies the law and decides cases, not some black-robed Franken-legislator making up laws and accountable to no one.  In a Marist poll conducted at the end of December, fully 80% of Americans say they want a judge that applies the law and the Constitution as written.

If Sen. Brown talked to regular Ohioans, he’d find that at least 80 percent share that view — and Judge Gorsuch is just this sort of judge.  In a case last year, he wrote about the role of a reviewing court:

“[O]urs is the job of interpreting the Constitution.  And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Cordova v. City of Albuquerque, 816 F.3d 645, at 661 (2016)

Precisely so.

Sen. Brown wants judges to start with the desired result – that inkblot from projecting hopes and dreams — and to work backwards.    The problem is that some day, such a judge will have a different desired result than Brown or you want.   The fair, and honest way to judge it start with the facts, apply the law, and announce the result.  If the result is bad, it is the province of Congress to change the law by passing a new statute or amending our Constitution.

Senator Brown’s list of liberal litmus tests – decisions that placate Planned Parenthood, promote over-reading discrimination lawsuits, advance nanny-state over-regulation — are simply not what a judge or judging should be about.  A judge should be judged on the process of judging: is there a reasoned, intellectually rigorous and consistent approach to applying the law?  By that only reasonable measure, Judge Neil Gorsuch stands tall. I look forward to Ohioan and all Americans getting to hear President Trump’s nominee make his case. It’s a shame that Sherrod Brown has made up his mind before the first hearing.

Dave Yost has been Ohio’s Auditor of State since 2011.