The American Legal System: Trump's Nomination of Gorsuch Raises 'Issues of Flexibility'
Feb 06, 2017 03:52 AM EST
A huge controversy is raging over President Donald Trump's nomination of Neil Gorsuch for Supreme Court. While he is being considered for the lifetime job, Gorsuch's legitimacy in the legal mainstream and his capability of protecting the "enshrined rights of all Americans", as well as the flexibility of the overall American legal system, are being questioned.
Trump is planning to appoint the 49-year-old federal judge, who currently sits on the 10th Circuit Court of Appeals, to fill the late Justice Antonin Scalia's vacant seat on the Supreme Court, according to The Atlantic. The nomination could buy Trump some political capital and solidify his political position within his own party amid the provocative rollout of his immigration ban that raised questions over the basic competence of Trump's administration.
The first 11 days of Trump's ruling as a President has also raised questions over the authority of the court within America's political system, the principles or "rules of law" that the system frames, and its ability to legislate - expand the reach of law and discover new, unstated rights. An excerpt of "Law Professors: Three Centuries of Shaping American Law" by Stephen Presser, published in The Economist, seems to trace the answer.
Presser, a professor at Northwestern University, writes that Scalia was grabbing hold of the belief that the law and constitution should be interpreted as they were understood at the time they were enacted rather than stretched by unelected judges. Especially since the original intent was the best mean of manifesting the will of the people, change should primarily come through popular votes and the laws enacted by elected legislators.
However, the approach poses a fundamental challenge to an expansive court, presidency and even to aristocratic position discerned in the law, says Presser. He shows examples of which the challenge resonated among unlikely candidates in the past, notably Felix Frankfurter, a Harvard professor, an architect of Franklin Roosevelt's New Deal, and a Supreme Court judge, who revealed concerns about pushing the boundaries of law too far.
Presser, who calls intelligent people "complex", reminds of the reality that America is consumed by serious legal debates about what the law says, what people think the law should say, and whether that is law. Such realization reflects the struggle over the judiciary's role to enforce laws as they were written, versus the law as a flexible instrument to achieve objectives, many of which are passionately supported and passionately opposed.