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Gorsuch and the first two days of hearings

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March 22, 2017

Neil Gorsuch defended his judicial independence and refused to express his opinion on U.S. Supreme Court decisions – including Roe v. Wade — during the first two days of hearings on his nomination to be a justice.

In his opening statement Monday (March 20) and in responses to questions this morning (March 21), the nominee to the high court assured the Senate Judiciary Committee of his willingness to rule against President Trump, who nominated him. The hearings will continue tomorrow, and the committee is scheduled to vote April 3 on Gorsuch.

As the process continues in the Senate, the primary question appears to be whether the judge on the 10th Circuit Court of Appeals in Denver will receive enough votes to overcome an expected Democratic filibuster. The Republican majority has 52 members, but 60 votes are required to halt a filibuster and vote on confirmation. If the GOP falls short, it can hold a vote to revise the rules and confirm Gorsuch by a simple majority.

Trump nominated Gorsuch, 49, to the high court in late January, nearly a year after the death of Associate Justice Antonin Scalia. Like Scalia, Gorsuch espouses a philosophy and record of interpreting the Constitution and laws based on its original meaning and their text, respectively.

Southern Baptist ethicist Russell Moore described Gorsuch as “an outstanding nominee for the Supreme Court. His high regard for the Constitution makes him a fitting continuation of the legacy of Justice Antonin Scalia.”

“As confirmation hearings continue, my hope is that what will be on display and under discussion will not be partisan politics but rather Judge Gorsuch's eminent qualifications and his judicial philosophy,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in written comments for Baptist Press. “I look forward in due time to seeing him confirmed as the next justice of the Supreme Court."

When asked about judicial independence March 21 by Chairman Charles Grassley of Iowa, Gorsuch said, “I have no difficulty ruling for or against any party” in a case. Later, he told Democratic Sen. Patrick Leahy of Vermont, “I will apply the law faithfully and fearlessly and without regard to persons.

Judicial independence, Gorsuch said, equates to the judicial oath he took “to administer justice without respect of persons, to do equal right to the poor and the rich, and to discharge impartially the duties of my office.”

He doesn’t believe in “litmus tests for judges,” Gorsuch replied to a question from Grassley.

“I wasn’t about to become party to such a thing,” he said, adding no one representing the Trump administration in the nomination process “asked me for any commitments, any kind of promises on how I would rule in any kind of case.

“I have offered no promises on how I would rule on any case to anyone, and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking.”

Sen. Dianne Feinstein of California, the committee’s lead Democrat, expressed particular concern about Trump’s promise he would select pro-life judges who would overrule Roe, the 1973 opinion that legalized abortion throughout the country. She had described Roe as a “super-precedent” in her opening statement March 20.

She asked Gorsuch March 21, “Do you view Roe as super-precedent?”

He replied, “It has been reaffirmed many times.”

Earlier, Gorsuch acknowledged Roe is a precedent of the high court that was reaffirmed in the 1992 Planned Parenthood v. Casey opinion and in several other cases. A precedent is a ruling that sets a legal standard for the future.

In assessing precedent, a judge asks, Gorsuch said, among other questions, “What about the doctrine around it? Has it been built up over the years” or “has it become an island?”

“You start with a heavy presumption in favor of precedent “ and “in a very few cases you may overrule precedent,” he said.

On religious liberty questions, Gorsuch again commented broadly but not about potential cases he might rule on.

Leahy asked if a blanket religious litmus test for entering the United States is consistent with the First Amendment.

“Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country,” Gorsuch said. “If you’re asking me how I would apply it to a specific case, I can’t talk about that for understandable reasons.”

When asked about a religious test to enter the military, Gorsuch said, “That is against the law.”

In his opening statement March 20, Gorsuch told the committee, “[T]hese days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. But if I thought that were true, I would hang up the robe. The truth is I just don't think that's what a life in the law is about.

“If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk,” he said. “And those who came to court would live in fear, never sure exactly what the law requires of them except the judge's will.”

Trump was able to select Gorsuch only after the Republican-controlled Senate refused to act on President Obama’s selection last March of another appeals court judge, Merrick Garland of the District of Columbia Circuit. During the hearings, Democratic members have criticized the GOP leadership for refusing to consider Garland.

The ERLC sponsored a letter Feb. 1 in which more than 50 Southern Baptist and other evangelical leaders called for confirmation of Gorsuch. The signers said they believe Gorsuch’s judicial philosophy meets the thresholds of their “core social principles.” Those precepts include in the Supreme Court’s purview “the protection of the unborn, the strengthening of religious liberty, and a dedication to human flourishing – which we believe can only be accomplished by a biblical definition of marriage and family,” they said.

During his time on the 10th Circuit, Gorsuch agreed with others on the court the Obama administration’s abortion/contraception mandate violated the free exercise of religion rights of Hobby Lobby and Little Sisters of the Poor among other religious groups. He wrote a 2006 book, The Future of Assisted Suicide and Euthanasia, before becoming a judge that argues against legalization of the end-of-life practices. Based on his judicial philosophy, however, Gorsuch has pledged to apply the law rather than his beliefs.

Tom Strode

Tom Strode serves as a correspondent for Baptist Press. Tom and his wife, Linda, have been married since 1978. They have two children with wonderful spouses and five grandchildren. He is a graduate of the University of Missouri and Mid-America Baptist Theological Seminary. Linda and he live in Nashville, Tenn. Read More by this Author

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24