Some Thoughts on Judge Gorsuch’s Nomination
A colleague of mine once said that in the first half of your career you are trying to figure out what is right. In the second half, you are trying to convince everyone that you are right. I guess I’m still in the first stage, and in that spirit I want to make some observations about Judge Gorsuch. (For the record, I think that he should be confirmed by the Senate.)
First, I think that his nomination shows that originalism is alive and well. After Justice Scalia died, some people (like Eric Posner) declared that philosophy dead on the assumption that nobody else who cared about interpreting the Constitution in that way would be confirmed. He was wrong. The elevation of Judge Gorsuch does not make the Court an originalist institution, of course, but there could be more Trump appointments in the coming years–you never know.
Second, administrative law is poised for some major changes. Over on Balkinization they just held an online Symposium in Adrian Vermeule’s new book Law’s Abnegation, which states as its central thesis:
Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.
In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.
As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.
So this confident argument does not look so convincing now. Judge Gorsuch has openly called for Chevron to be cut back or overruled, and he’s not the only one on the Court who feels that way. Are there five votes to gut Chevron once he is confirmed? I doubt it, but who knows.
One way of thinking about these two points is that a little intellectual humility goes a long way. The other is that when everybody says buy, it’s probably time to sell.