The Wall Street Journal - 07.09.2019 - 08.09.2019

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NOAA’s Plan to Save the Whales Has Maine Lobstermen Boiling

I spent part of my
first summer as a
former governor
working at a coastal
Maine restaurant.
My customers in-
cluded lobstermen,
and a hot topic of
conversation was
the National Oceanic
and Atmospheric
Administration’s at-
tempts to protect the shrinking
North Atlantic right whale popula-
tion. NOAA has ordered Maine to
recommend a plan this month to re-
duce the number of whale deaths in
its coastal waters. There’s only one
problem: No whale deaths due to en-
tanglements or ship strikes have
been recorded in Maine waters since
According to NOAA, entanglement
in endlines—the fishing ropes con-
necting traps on the ocean floor to
buoys floating on the surface—is the
“leading cause of known right whale
mortality.” Facing pressure from en-
vironmental groups, the agency
wants Maine to reduce the number
of endlines deployed in its lobster
fishery by 50%. The lobstermen I
spoke with worry that meeting this
target will gut the lobster industry. I
was so concerned about what I heard

that I wrote to President Trump,
calling his attention to this issue.
North Atlantic right whales num-
bered about 250 in the mid-1990s,
but by 2015 had rebounded to an es-
timated 458. The population has now
fallen nearly to 400 due to fewer
calves being born and a spike in
deaths. The loss of right whales is a
problem, but penalizing Maine lob-
stermen won’t save them.
The Maine lobster fishery and its
supply chain contribute more than
$1.7 billion to Maine’s economy an-
nually. In 2018 Maine lobstermen
hauled in a record 54,000 tons of the
red crustacean. Lobster has practi-
cally become synonymous with the
tourist destination known as “Vaca-
tionland.” Maine attracts about 37
million visitors each summer and
lobster is frequently on their menus
as well as on the souvenirs they take
Tariffs and bait shortages have
hurt the industry, but the lobstermen
I spoke to this summer told me that
NOAA’s proposed regulations could
force many of them out of business.
There is no evidence that making
Maine’s loberstermen pull their lines
out of the water would save even one
whale. Twenty years ago the local in-
dustry changed the type of ropes
used for traps and added special

links that whales could easily break.
The whale population almost dou-
bled after these and additional inno-
vations were adopted in 2009 and
The new regulations would affect
only lobstering by Mainers in the
Gulf of Maine. But North Atlantic
right whales no longer swim in the
Gulf of Maine because the shrimplike

plankton they eat have shifted to the
cooler waters near the Gulf of St.
Lawrence in Northern Canada, where
heavy shipping traffic puts them at
greater risk.
Lobstermen cooperated when the
data supported changes, but recent
data doesn’t support further regula-
tion of Maine’s lobster industry. In-
stead it suggests the need for addi-
tional negotiation with Canada for
more-effective protections.
A June study published in the
journal Diseases of Aquatic Organ-
isms reviewed the circumstances

surrounding 70 known right whale
deaths between 2003 and 2018. En-
tanglement was identified as the
cause of death in 22 cases, of which
14 involved Canadian snow crab
fishing gear. One death involved U.S.
gear, and the remainder were un-
Eight right whales have died so
far this year, all in Canadian waters;
four died from ship strikes, two died
from entanglement. Reducing the
number of Maine’s endlines won’t
stop whale deaths from ship strikes
in Canadian waters. Studies also in-
dicate ocean noise from ships could
be a significant source of whale
stress, possibly contributing to the
lack of calves being born.
Maine’s 4,500 commercial lob-
ster fishermen run small busi-
nesses. In many cases their families
have gone to sea for decades. They
care deeply about protecting the
environment, including whales, and
manage one of the Earth’s most sus-
tainable fisheries.
Meeting NOAA’s proposed endline
target will cost these small busi-
nesses significant revenue and force
many fishermen to quit the industry.
Furthermore, the regulations will
needlessly increase the danger of
what is already one of the most haz-
ardous occupations in America. Halv-

ing the number of endlines means
doubling the number of traps per
line. This will add weight to Maine’s
small lobster boats, making them un-
stable and increasing the risk of fish-
ermen getting caught in trap lines,
falling overboard and drowning.
Instead of implementing ineffec-
tive regulations in an area where
they are unlikely to make a differ-
ence, NOAA should focus on where
the whales are dying, which isn’t the
Gulf of Maine. The Commerce De-
partment should address whale pro-
tection in future trade and environ-
mental agreements with Canada. A
good first step would be for the
Trump administration to place a
moratorium on these regulations,
while a lawsuit being brought
against NOAA by conservation
groups under the Endangered Spe-
cies Act moves forward.
Maine’s entire lobster industry is
in turmoil over this. Thousands of
small businesses at the heart of the
state’s tourist economy can’t plan
what their next year will look like.
Let’s use common sense and science
to truly protect both the right
whales and one of Maine’s most
valuable industries.

Mr. LePage, a Republican, was
governor of Maine from 2011 to 2019.

The giant mammals have
moved on to Canada, but
the feds are targeting a
local industry anyway.


By Paul



ustice Neil Gorsuch has two
rules for his law clerks.
“Rule No. 1: Don’t make
stuff up,” he tells them.
“Rule No. 2: When people
beg, and say, ‘Oh, the conse-
quences are so important,’ and
when they say, ‘You’re a terrible,
terrible, terrible person if you
don’t,’ just refer back to Rule
No. 1. And we’ll be fine.”
He is sitting in a wood-and-
leather chair in his Supreme
Court chambers. He’s discussing
originalism, the idea that the
Constitution’s meaning is the
same in 2019 as in 1788. “Our
Founders deliberately chose a
written constitution,” he says. “Its
writtenness was important to
them. They rejected the English
tradition of an unwritten consti-
tution, because they wanted to fix
certain things.”
To treat the Constitution as a
“living” document, he says, is to
regard it “more or less as a relic,”
something kept “in the back of the
church behind a screen, and you
look at it as you walk by, and you
move on.” But that’s “not what
‘We the People’ agreed to,” he
adds. “We didn’t say five judges—
or nine, or whatever—sitting in
Washington get to govern 330 mil-
lion people. Who would write such
a thing down? Who would agree to
that? That’s not a republic. I don’t
know what that is, but it’s not a
republic. Not a democracy.”

In his new book, “A Republic, if
You Can Keep It”—a mix of
speeches, reflections and excerpts
from his judicial opinions, to be
published Sept. 10—Justice Gor-
such makes the case, he says, that
“we should all be originalists.”
Consider the alternative: “What
happens when judges make it up?”
he asks. “Strange things happen.
You start losing rights, first of all,
that are in the Constitution.”
He cites the Fourth Amend-
ment’s ban on “unreasonable”
searches. “At common law that
pretty much meant, hey, you can’t
go snooping around someone’s
house—or the curtilage, the area
around their house—without a
warrant,” he says. Then, incredu-
lous, he cites Florida v. Riley
(1989), in which the justices “held
that the police may, in a helicop-
ter 400 feet above your house,
hover and peer down without a
warrant. They said that’s not even
a search.”
Nor is it always benign when
judges take it on themselves to ex-
pand rights. “ Dred Scott is for me
the greatest example,” Justice
Gorsuch says. That 1857 ruling
read the Fifth Amendment’s guar-
antee of “due process” as includ-
ing a right to own slaves in U.S.
territories. “That is not in the
Constitution,” Justice Gorsuch
says. “Now, they thought they
were doing it for a good reason.
They thought it was really impor-
tant so they could avoid a civil

war.” Needless to say,
it didn’t work.
What about archaic
practices that the Con-
stitution might permit
but are repugnant to-
day? Justice Antonin
Scalia once weighed
what would happen if a
state brought back
flogging, saying he
“may prove a faint-
hearted originalist.”
Even if the First Con-
gress, which proposed
the Eighth Amend-
ment, didn’t consider it
“cruel and unusual”
punishment, Scalia
couldn’t imagine up-
holding it. Later he re-
versed himself and
called flogging “stupid
but constitutional.”
Justice Gorsuch de-
clines to take his pre-
decessor’s bait. “Well,
I haven’t thought much
about flogging today,”
he deadpans, “and I’m
not too worried about
its recurrence at the
moment. But I am not
a faint-hearted origi-
nalist, and I don’t
think, in fairness to
the old man, that he
was either. I think he was being
After joining the court in 2017,
Justice Gorsuch moved into Sca-
lia’s wood-paneled chambers. A
portrait of James Madison hangs
over a fireplace, and Leroy, a
mounted elk from a Scalia hunt-
ing trip, keeps watch over the
clerks. What surprised Justice
Gorsuch most was how little had
changed since his own clerkship,
with Justice Anthony Kennedy, in
1993-94. He recalls a young Jus-
tice Clarence Thomas walking to
the conference room. “He’s drag-
ging one of those library carts—
I’ll show you one in a minute—
stacked with paper, because back
then everything was paper,” Jus-
tice Gorsuch says.
Fast forward two decades: “I’m
walking out of my office for the
first time to go to the conference
room, and what do I see? Same
man. Same library cart. Same
stack of papers, because every-
thing here is still done by paper.
Nothing’s changed.”
In a few ways, however, Justice
Gorsuch is a variation. A Denver
native, he’s the only member of
the court born in a noncoastal
state. He’s the youngest justice,
turned 52 last week. He may be
the only Protestant. Although
raised Catholic, he said in 2017
that he attends Episcopal services
with his wife and two daughters.
He declines to clarify or to talk
religion: “People would view that
as me tacitly admitting it has
something to do with my day job,
and I reject that.” He’ll say only
that his faith is “a great reservoir
of strength for me. I need it, as a
person. And I find faith in lots of
places, but probably most of all in
the cathedral of the Rocky Moun-
tains. That’s often where I feel
closest to God.”
For a judge, he writes in a con-
versational tone. Scalia avoided
contractions, which he once called
infra dignitatem —beneath dignity.
Justice Elena Kagan said in 2017
that she uses them only in dis-
sents, where she feels able to

“let it go a little bit more.” Jus-
tice Gorsuch doesn’t hesitate to
deploy them, starting in the first
paragraph of his first majority
opinion. “That’s just the way I
write,” he says, perhaps a bit be-
wildered at the question. “There’s
no self-consciousness to it. I think
good writing doesn’t need to be
legalese, doesn’t need to be im-
penetrable—that doesn’t persuade
me.” But as for being colloquial:
“Good writing is more like what
we speak than it is what lawyers
sometimes aspire to.”
He hasn’t joined the court’s
“cert. pool,” through which most
of the justices divide among their
clerks the task of analyzing peti-
tions for appeal. He’s glad the pool
exists—a thorough process that
creates a memo on each petition
filed—but also believes in having
some eyes outside it. “There are
8,000 people a year who want this
court to hear a case,” he says. “We
only hear about 70. I don’t think
it’s asking too much of me to
spend a little bit of time looking at
those and doing it in-house, in our
chambers, the old fashioned way.”


nother theme of his book is
the separation of powers as
a bulwark of liberty. People
know the Bill of Rights, Justice
Gorsuch says, but as with any con-
tract, “what makes it good is an
enforcement mechanism, and
that’s what the separation of pow-
ers is—it’s our enforcement mech-
anism for these promises.”
The Framers made it hard to
pass legislation, so that laws
“would be relatively few in num-
ber, clear, and the product of
widespread social consensus.” But
that has led to a creeping en-
croachment on legislative power.
When the executive branch effec-
tively becomes a lawmaker, he ar-
gues, “one of two things happens.”
Either “you elect a king,” or “the
king can’t even control the people
who do make the laws,” in which
case “nobody controls them.”
Two cases from the court’s
2018-19 term illustrate the danger.

In Gundy v. U.S. , four
of eight justices—Brett
Kavanaugh wasn’t con-
firmed in time for the
a willingness to apply
greater scrutiny to
Congress’s delegations
of power. At issue was
a 2006 law authoriz-
ing prison time, up to
10 years, for sex of-
fenders who failed to
register. But for old
convictions, Congress
deputized the Justice
Department to decide
how the new rules
would apply.
The law told the at-
torney general, in ef-
out the criminal legal
liability of a half a
million citizens of the
United States,” in Jus-
tice Gorsuch’s words.
“They happen to be
unpopular citizens,
and nobody is going to
defend their conduct.
But aren’t they the ca-
naries in the coal
mine, is the question
I’ve raised.”
The second case, Ki-
sor v. Wilkie , involved
judicial deference to administra-
tive agencies. James Kisor asked
the Department of Veterans Affairs
for retroactive disability benefits.
An internal administrative judge
denied his claim. When he ap-
pealed, the VA initially prevailed
thanks to precedents, notably
1997’s Auer v. Robbins , that tell
courts to defer to an agency’s in-
terpretations of its own ambiguous
regulations. Five justices declined
to overrule Auer but left it “zombi-
fied,” as Justice Gorsuch put it in
an animated opinion calling for it
to be overturned outright.
He wonders why courts that
have judicial power under the Con-
stitution would defer like this to
administrative judges. “They are
employees of the executive branch
interpreting their own rules in
ways adverse to that veteran,” he
says, “and then saying, ‘Hey you,
Mr. Article III Judge—independent
judge, nonpolitical judge, life-ten-
ured judge, doesn’t-care-what-peo-
ple-think judge—all right, you have
to listen to my interpretation of
the law, and you have to adhere to
it, even if you think, indepen-
dently, it’s wrong.’ ”
A common reply to these cri-
tiques is that modern society is so
complicated that citizen-legislators
need the ability to delegate to ex-
perts. As Al Franken put it at Jus-
tice Gorsuch’s confirmation hear-
ing: “What we senators don’t want
to be doing is deciding how much
lead can be in your water, or what
the distance in the slats are in a
baby’s crib.” After the Gundy rul-
ing this June, skeptics worried
that the FDA might lose the au-
thority to approve drugs.
But agencies existed long before
the courts decided to defer to
them, Justice Gorsuch says, “and
life seemed to work out OK.” He
regards the argument as a reduc-
tio ad absurdum: “Nobody is of
the view that the government
should come to a grinding—I
mean, that’s silly, right—a grind-
ing halt,” he says. “Oh, the world
will end.... Nuclear war will fol-
low next, right? Isn’t that where

these kind of arguments always
lead? In high school debate, the
end argument was ‘Then nuclear
war will follow.’ ”
One twist is that Scalia spent
years defending deference as a
practical judicial restraint. “Even
Homer nodded,” Justice Gorsuch
says. “Justice Thomas tells a won-
derful story about sitting with
Justice Scalia, and somehow Auer
comes up,” he recounts. “Scalia
asks, ‘Who wrote that terrible
opinion?’ And Justice Thomas says
to Scalia, ‘Well, you did, Nino.’ ”
Justice Gorsuch has a down-to-
earth manner. He has talked about
raising chickens, along with a goat
named Nibbles, while his daugh-
ters were in 4-H back in Colorado.
In one speech included in the
book he says America has a judi-
ciary of “honest black polyester.”
When he joined the 10th U.S. Cir-
cuit Court of Appeals, someone
asked if he owned a robe. “I was
not born with a robe. I do not
have arobe.WhywouldIhavea
robe?” he says.
A court staffer pointed him to a
local uniform-supply shop. “I’m a
frugal man,” he says. “The stan-
dard choir outfit is a pretty good
deal! So that’s what I bought, and
that’s what I still use. It’s a little
worse for wear.” One of the book’s
funniest lines comes on Judge
Gorsuch’s first day, when he trips
while stepping up to the bench.
“Neil,” his wife advises, “you have
to lift your hem as you climb
He emphasizes the justices’ ca-
maraderie. Although the court
takes only “the 70 hardest cases a
year,” it rules unanimously in
about 40% of them. “That does
not happen magically,” Justice
Gorsuch says. “Get nine people to
agree on where to go to lunch.”
He credits such consensus to
“hard work, collegiality and mu-
tual respect.”


hen the justices meet in
conference or to hear
cases, they start with a
round robin of 36 handshakes. “It’s
a beautiful gesture,” Justice Gor-
such says. “We eat lunch together
a lot. Justice [Stephen] Breyer
comes in, it seems like, every day
with a new knock-knock joke from
his grandkids. We don’t talk about
business. We talk about family. We
talk about life.”
There are high jinks, too. When
Justice Kavanaugh arrived, it fell
to Justice Gorsuch, as the most ju-
nior colleague, to plan the wel-
come dinner. He took a risk in lin-
ing up the entertainment. You
know those giant foam heads of
presidents that footrace during
Washington Nationals baseball
games? “I hired two of them,” he
says, dropping to a giddy whisper,
“and they had a race in the Great
Hall of the Supreme Court of the
United States.”
Which two? “I think we had
Washington and Jefferson,” he
says. “Washington won, and the
chief justice had the checkered
flag. And I confess, I didn’t tell
anybody because I thought it
might be better to ask for forgive-
ness than permission on this one,
and I wasn’t sure how it was going
to go.” Well? “It was a huge hit,
because we of course have a lot of
baseball fans on the court.”

Mr. Peterson is a member of the
Journal’s editorial board.

The High Court’s Rocky Mountain Originalist


Trump’s first justice

discusses his new book,

the dangers of the

administrative state, and

why the Constitution’s

meaning never changes.

THE WEEKEND INTERVIEW with Neil Gorsuch| By Kyle Peterson

Free download pdf