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Questions of life and death for Neil Gorsuch

The Boston Globe logo The Boston Globe 3/18/2017 By Michael S. Lewis

Senate confirmation hearings for US Supreme Court nominee Neil Gorsuch (above) begin on Monday. © BRENDAN SMIALOWSKI/AFP/Getty Images Senate confirmation hearings for US Supreme Court nominee Neil Gorsuch (above) begin on Monday. Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Many libertarians cheered the selection of Neil Gorsuch, President Trump’s nominee for the Supreme Court, seeing in the federal judge a kindred spirit. But their enthusiasm may be misplaced. Gorsuch, a provocative writer who has published on a range of important subjects, has telegraphed views out of step with libertarian thinking that could influence the way he rules on matters from police shootings to the right to bear arms.

At the center of Gorsuch’s book “The Future of Assisted Suicide and Euthanasia,” originally published in 2006, is a position that has given much joy to his most ardent supporters: “the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

Many will focus on the implications of this statement as it relates to his views on the rights to contraception and abortion. However, the way Gorsuch phrased his thinking is telling, and raises broader doubts about the true extent of his reputed libertarian orientation.

By singling out private persons, Judge Gorsuch implies a preference for the life-taking activities of government officials. Consider that under his formulation, an individual suffering through the excruciating pain of the final stages of cancer who nevertheless remains capable of making a choice to end his or her own life is automatically wrong to make that choice, while a police officer who takes the life of an unarmed teenager is not automatically wrong in choosing to do so. Gorsuch never explains why he would create an automatic rule in one case and not the other, leaving a gaping hole in his statement of moral principle.

Indeed, the notion that there is any such thing as a public-private distinction to be made in a democracy between citizens and government officials is one that has drawn the ire of libertarian thinkers for decades. Among the most prominent was Milton Friedman, Nobel Prize-winning free-market economist who took President John F. Kennedy to task for asking us to ask “what we can do for our country,” noting that we are, in fact, “our country.”

Stated another way, in a democracy, do public actors not draw their power from private actors, the voters? Does that not also implicate public actors in Gorsuch’s moral framework, as adjutants of private actors? Wouldn’t all killing, whether public or private, therefore be “always wrong”? And wouldn’t killing by public actors be worse under an authoritarian regime, where private actors play a lesser role in informing the actions of the government?

His book fails to answer these questions, even as it raises extreme instances of government life-taking. In his description of the history of the euthanasia movement, Gorsuch describes the American eugenics movements as a philosophical forebear, which forced sterilization on citizens in the early 20th century as a matter of law (and was endorsed by the Supreme Court). He also discusses Nazi Germany in the 1930s and ’40s and its euthanasia practices, which included the killing of 200,000 disabled and elderly persons. But his descriptions of these government programs only highlights the implausibility of his formulation and its implied public carve-out, which leaves his judgment regarding the life-taking conduct of governmental officials unstated while raising examples of government conduct that draw our harshest moral judgment.

And so we must ask the following questions: What are we to conclude about the apparent carve-out Gorsuch makes for government officials in an era where so much publicity has been given to police shootings or where questions are drawn about the death penalty and innocence, to say nothing of war? Are we to conclude that conferring public-actor status on life-takers somehow makes the act of killing for this subcategory of people more justified or preferred or entitled to some kind of presumption of moral correctness? And how will this carve-out effect his decision-making as a justice when assessing legal challenges to life-taking activities by state and federal law enforcement?

As we consider these questions, citizens should take note of fresh news stories about Gorsuch’s brief role as an attorney in the Bush Administration during a period of time where government lawyers played a substantial role in providing the legal justifications for enhanced interrogation techniques that would seem to conflict with Gorsuch’s moral position that “all human beings are intrinsically valuable.”

Gorsuch’s rejection of life-taking acts of private persons is doubly interesting because it stands to conflict with the approval of life-taking by private persons embedded in the Supreme Court’s interpretation of the Second Amendment. Justice Antonin Scalia’s historical account of the personal right to keep and bear arms in District of Columbia v. Heller surveys the origins of the right, concluding that it arises, in part, from a private person’s right to oppose usurpations upon his or her liberty by public officials, including through acts of self-defense — life-taking by a private person.

Should we draw from Judge Gorusch’s formulation that he questions the moral foundations of the right? Should we see in his formulation a willingness to revisit or revise the Court’s assertions about its source and scope? Finally, will his desire to restrict private, intentional life-taking effect how he defines the metes and bounds of the Second Amendment right when he is asked to pit those rights against the government’s efforts to stem crime?

As a former homicide prosecutor who engaged in the public work of assessing life-or-death situations, including in the area of gun violence and the line between murder and self-defense, I hope the Senate will ask these questions as Neil Gorsuch’s nomination is considered.

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