A True Originalist Would Decline the Supreme Court Nomination

President Trump nominated 10th Circuit Judge Neil Gorsuch for the Supreme Court vacancy left by Nino Scalia's passing. With the snap of his tiny, orange fingers, President Trump has created drama. This is the seat that Former President Obama tried to fill with Merrick Garland but Republicans refused to even meet with man despite universal agreement that he was qualified. Democrats refer to it as the "stolen seat" and are understandably unmoved by Republican's shamefully hypocritical denouncement of Democrats as already being obstructionist. What about Neil though?   

Gorsuch is being hailed as an originalist. Originalism is a doctrine that favors looking to the original intent of the men who wrote the Constitution when interpreting it today. It relies on "plain reading" of the words that are actually in the Constitution rather than, say, made-up concepts like "penumbral rights." For now, let's leave aside the very real possibility that politically conservative idealogy has body-snatched much of originalism as a theory (see, e.g. Scalia's concurrence in Gonazlez v. Raich wherein he expressed a newfound affinity for applying the Interstate Commerce Clause to actions that were neither commerce nor interstate because it permitted him to vote against dope-sucking hippies in California).   

To say that Republicans prefer originalist jurists is like saying pilots prefer planes with wings. They are positively tumescent excited about Gorsuch. Even Neal Katyal, former Solicitor General in the Obama Administration, said today that Democrats should support Gorsuch's nomination in part because he believes Gorsuch will prioritize the rule of law over party preference and reject Presidential or Congressional overreach. For the reasons stated below, I dissent.  

Originalists look at what the Constitution actually says. Remember that Merrick Garland guy? What did Republicans say the reason they refused to even give him a hearing was? Mitch McConnel said in 2016 that "The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide." Two problems for McConnell. First, the people actually preferred Hillary Clinton. Should she get to nominate someone? McConnell's second and more difficult problem is that the Constitution doesn't give the power of Supreme Court nominations to the people. It gives that power to the President. In fact, the Constitution tried to keep Supreme Court nomination process about as far away from the people as possible.

Article II, section 2, clause 2 says the President (who, by the way, isn't elected by the people either) "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court..." Justices are given life-time appointments so they can take a measured long view of the issue without worrying about re-election or renewed fitness hearings (Article III, section 1.) They may only be removed by impeachment by Congress for bribery, treason and all the other fun high crimes and misdemeanors (again, Article III, section 1.) 

Of course the Senate's role is to advise and consent. First, let's keep in mind also that Senators originally were not elected by the people either. They were appointed by the state legislators rather than directly elected because such a removal would mean the Senate would not "yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions." In other words, they wouldn't follow the capricious whims of the people; instead they would deliberate. 

Second, the founders actually contemplated the Senate rejecting a nominee and did not think such a rejection was reason for grave concern. The President would just nominate someone else and the Senate would vote again. What doesn't appear in the Constitution or the other primary sources is the idea that the Senate would be too obstructionist to even vote at all. If Mitch McConnell felt that Garland was unqualified, he should have the courage to say so by voting against him. Instead, he took his ball and went home claiming "the people" should decide. 

For someone who prefers a literal interpretation of the Constitution, McConnell sure doesn't seem to know what the Constitution actually says. Neither, apparently, does Neil Gorsuch. An originalist with integrity would have deep reservations about benefiting from this kind of gamesmanship. I submit that someone who holds rule of law, procedure, and the manner in which results are achieved above the actual results themselves would denounce the Republican's actions and demand that Garland-the rightful nominee- be given his day in court.