Ladies and gentlemen: Your new Supreme Court justice

Assuming that Trump’s nominee Neil Gorsuch is confirmed (and he really shouldn’t even be up for confirmation since Obama’s nominee Merrick Garland was blocked), here’s what we have in store:

  • An “originalist” like Scalia, who believes that the Constitution should be interpreted as it was at the time it was written
  • A “textualist“, who believes that the context in which a law is made is irrelevant to its application: it should be applied exactly as the text states without regard to what was going on in society when the law was made or what the intent of the law was.
  • In the Hobby Lobby case, Gorsuch voted to allow Christian employers to discriminate against customers based on the employers’ religious beliefs. His opinion also buttressed the right of employers, on religious grounds, to refuse to pay for contraception.
  • Favors the death penalty
  • From Wikipedia: “Gorsuch has never had the opportunity to write an opinion on Roe v. Wade. However, in his 2006 book The Future of Assisted Suicide and Euthanasia, Gorsuch wrote that he opposed euthanasia and assisted suicide and that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

You can read more about Gorsuch’s philosophy on the ScotusBlog.  He is only 49; if confirmed, he’ll be tilting the court to the Right for a long time.

Here’s the New York Times‘s “ideology line” showing where Gorsuch falls on the spectrum of Supreme Court justices, taken from an analysis by Lee Epstein, Andrew D. Martin and Kevin Quinn. 

screen-shot-2017-02-01-at-7-16-10-am

 

Should Gorsuch be confirmed? If Obama had not nominated Garland, whose nomination was simply deep-sixed—and wrongly—by Republicans, then Gorsuch is an appropriate candidate for a conservative President and a conservative seat on the Court. By all accounts , he’s smart and not horribly divisive. His record itself warrants confirmation.

But, mindful of l’affaire Merrick, Senate Democrats will be putting up a fight on this one. I’d say that they shouldn’t do that, as it’s just as obstructionist as we have accused Republicans of being. Fighting Gorsuch is a losing battle, and even if confirmed, he’s not going to change the court: it will still be 5-4 in favor of conservative justices, with the possibility of Anthony Kennedy being a swing vote toward the progressive side.

What happened to Merrick Garland was reprehensible, but we can’t compensate for that by going after Gorsuch. Time to suck it up, for that’s all we can do.

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Neil Gorsuch

97 Comments

  1. Randall Schenck
    Posted February 1, 2017 at 8:08 am | Permalink

    I think the demos can refuse based on the guy’s beliefs and knowing how he will judge, mostly with the bible and not the law. So what if he finally gets in, fight the good fight.

    • Posted February 1, 2017 at 11:42 am | Permalink

      Or, slightly differently: use the nomination hearings to (attempt to) get this guy to put his views into the record (or his refusal to do say). A sort of “who watches the watchers” preemptively. I’ve never thought that nomination hearings are just about “yes or no”, but about this sort of thing. (After all, if it were just “yes or no”, why not just have a vote?)

  2. Sastra
    Posted February 1, 2017 at 8:09 am | Permalink

    Another relevant question is asking who the alternative might be, if Gorsuch is blocked. I wouldn’t put it past Trump to nominate Judge Roy Moore, in a fit of pique.

    • eric
      Posted February 1, 2017 at 9:53 am | Permalink

      Yes, most of the other names currently floated are much worse. But any successful block by the Dems would likely cause the GOP to change their current plans and possibly nominate someone who could get around the next block.

      Personally I don’t think a block is at all likely, but ‘consider the current alternatives’ is not a good reason for a senator to give up, if that senator really truly thinks Gorsuch is a bad choice.

      • Sastra
        Posted February 1, 2017 at 10:17 am | Permalink

        Yes, blocking Gorsuch might force the Republicans to put up a more reasonable nomination — or it might make them double down.

        If Trump is controlling the nominations, then I would not expect him to try for a compromise. Au contraire. He’s not only petulant and vengeful, he doesn’t really give a crap about anything but protecting his ego and giving his loyal fans something to roar about. I can easily visualize him allowing the Supreme Court opening to remain unfilled for months if not years as he brings up pick after pick, each one more ghastly and unqualified than the last, expecting the Democrats will fold.

        Though,come to think of it,they might not under those circumstances. Even his own party could be outraged over his selection of, say, someone like Larry Klayman. Divide and conquer. Trump is the Republicans’ own worst enemy.

        • Kiwi Dave
          Posted February 1, 2017 at 4:18 pm | Permalink

          In 2006 Gorusch received unanimous confirmation from the Senate Democrats, including Obama, Kennedy, Clinton, Schumer, Kerry, when nominated for the Tenth Circuit Court of Appeals. What has changed about him since then to make him so unsuitable?

          • Sastra
            Posted February 1, 2017 at 4:28 pm | Permalink

            He’s being scrutinized more carefully, for his rulings would carry more weight. But yes, I suggested below that he might be a better candidate than many other conservative judges.

            • tomh
              Posted February 1, 2017 at 4:51 pm | Permalink

              One thing that has changed is ten years worth of decisions. Hobby Lobby to start with.

          • GBJames
            Posted February 1, 2017 at 4:47 pm | Permalink

            “What has changed about him since then to make him so unsuitable?”

            Six years of judicial history that didn’t exist before?

  3. Barry Lyons
    Posted February 1, 2017 at 8:11 am | Permalink

    If Gorsuch had any shred of decency (by accepting the nomination it’s clear he has zero integrity), he would refuse the position and say that the seat belongs to Merrick Garland.

    I’ll go further: ANY nominee should refuse the seat on the grounds that it belongs to Garland.

    Yes, a man can dream.

    • jwthomas
      Posted February 1, 2017 at 8:43 am | Permalink

      Garland would have been tougher
      on law and order and the expansion of executive power, and he’d likely have moved the court further to the right than Gorsuch. The notion that the Democratic Party will save us is delusional. Watch the votes for approval of Trump’s cabinet nominees for the proof.

      • Robert Ryder
        Posted February 1, 2017 at 9:24 am | Permalink

        Garland would have pushed the court further to the right? That’s absurd.

  4. BobTerrace
    Posted February 1, 2017 at 8:24 am | Permalink

    What happened to Merrick Garland was reprehensible, but we can’t compensate for that by going after Gorsuch. Time to suck it up, for that’s all we can do.

    I disagree.

    Since the sad-excuse-for-a-human-being-in-chief is in his last year of his presidency, due to his upcoming impeachment, the senate should refuse the nomination of Gorsuch equivalent to what the Republicans did for Garland’s nomination by Obama.

    • GBJames
      Posted February 1, 2017 at 9:04 am | Permalink

      I pretty much agree with you. But that just leaves it to President Pence. I see a dismal future no matter what. But I’m tired of Democrats playing nice while Republicans play Lucy.

    • Posted February 1, 2017 at 10:52 am | Permalink

      +1

    • Mjohnson
      Posted February 1, 2017 at 2:23 pm | Permalink

      Impeachment would require a majority in the House of Representatives, and the Democrats currently do not have a majority. Even if the House is successful it is still up to the senate to try the president (this is similar to what the republicans did to Bill Clinton, he was impeached by the house and later acquitted by the Senate).

      Since the democrats do not have a majority in the house and the senate, there is zero chance that your prediction will occur.

      • GBJames
        Posted February 1, 2017 at 2:55 pm | Permalink

        I don’t agree that it is zero chance. The Republican House would much prefer to deal with President Pence. Trump is too volatile and will embarrass enough of them often enough that they will turn on him. There will be plenty of justifiable cause for impeachment when it happens.

      • tomh
        Posted February 1, 2017 at 2:58 pm | Permalink

        Zero chance? Well, if you’re a betting person, like our esteemed host, you could make some money, as Ladbrokes puts the odds at 11/10 that Trump will be impeached or resign before his first term ends.

  5. Posted February 1, 2017 at 8:28 am | Permalink

    What happened to Merrick Garland was reprehensible, but we can’t compensate for that by going after Gorsuch.

    The Democrats need to stop bringing a knife to a gun fight.
    The democrats shouldn’t act as reprehensible as the republicans. They should act more</i) reprehensible. Only in this way can we go back to a 2 party system. We've effectively had a one party system for decades now.

    • Sue Sommers
      Posted February 2, 2017 at 1:04 pm | Permalink

      I heard Cory Booker say the Republicans changed the rules. It won’t do Democrats any good to use the rules that no longer apply. (Not actual quote.)

  6. Posted February 1, 2017 at 8:28 am | Permalink

    Rolling over and playing dead is terrible politics. It demoralizes the base, and a demoralized base it what leads to weak election results. Democrats need to stand firm and block any and all Trump nominees (assuming T. does not become sane and nominate someone reasonable).

    • Posted February 1, 2017 at 8:37 am | Permalink

      Okay, you’re right. I’ve changed my mind (seriously). We should give them as good as we got.

      • Flamadiddle
        Posted February 1, 2017 at 8:59 am | Permalink

        Well holy D*g in heaven! Someone bows to a more powerful argument. In public. Are you,, perchance, a skeptic? This type of behaviour is all too infrequent.

      • J.Baldwin
        Posted February 1, 2017 at 11:08 am | Permalink

        I’m still of a mind similar to your original stance, Prof. Coyne. If one believes that the Republicans took the low road regarding Merrick, taking the same low road now just perpetuates the cycle. If you’re going to have a party guided by principles, it’s time to suck it up. As far as ginning up the base, I’ll remind you that the base is fractured beyond recognition. Instead of firing up a splintered faction of an old order, build a new base from the rubble…one with civility, fairness, and justice as guiding principles.

      • Carl
        Posted February 1, 2017 at 12:11 pm | Permalink

        Prof. Coyne, I am truly saddened that you reverse yourself on the best and most noble comment made in the original piece.

        • Curt Nelson
          Posted February 1, 2017 at 1:25 pm | Permalink

          I’m saddened that we continue to think that being nice and reasonable about things will pay off when the evidence shows it won’t.

        • Curt Nelson
          Posted February 1, 2017 at 1:27 pm | Permalink

          I’m saddened that we continue to believe that being nice and reasonable will pay off when the evidence shows it won’t.

          • Carl
            Posted February 1, 2017 at 1:33 pm | Permalink

            Nastiness and irrationality is not the answer. Being intelligent, principled, and civil is. This is not the same thing as being a dupe or a patsy.

            • Curt Nelson
              Posted February 1, 2017 at 1:57 pm | Permalink

              The opposite of reasonable is not irrational.

              This is why the meme “spineless Democrats” is out there and why a man like DT won the presidency despite 8 years of horrific Republican behavior.

  7. Historian
    Posted February 1, 2017 at 8:29 am | Permalink

    In his speech after Trump introduced him, Gorsuch mentioned that he is sustained by his faith. As part of his ultra-conservative philosophy, he is apparently very religious. From the liberal perspective, Gorsuch is bad as Scalia.

    I think the Senate Democrats should oppose him as strongly as possible. If they cave, the party’s base will revolt. The Democrats could block the nomination with the filibuster, which would require 60 votes to nominate (The Republicans have only 52, the Democrats 48). True, the Republicans could invoke the “nuclear option” and change the Senate rules to require only a simple majority to nominate. It is not a sure thing that the Republicans would do this since at least a few of them, out of political pragmatism and tradition, very much support the concept of the filibuster. And if they do invoke the nuclear option, would the end result be any different than the Democrats caving? I don’t think so.

    Until a ninth justice is confirmed, the Supreme Court remains at eight members, split between liberals and conservative, which means that the conservative justices haven’t been able to dominate. Liberals should try to keep this situation as long as possible. Ultimately, a conservative justice will probably be confirmed. But, Democrats need to fight. They need to show their base that Merrick Garland and the stolen seat have not been forgotten.

  8. Grania Spingies
    Posted February 1, 2017 at 8:29 am | Permalink

    I will never be able to fully wrap my head how people manage to be pro death penalty but anti assisted suicide & abortion in any situation; given that they always claim they are anti the latter two for reasons of sanctity of life.

    How do they reconcile this to be a consistent philosophy?

    • Posted February 1, 2017 at 8:55 am | Permalink

      How do they reconcile this to be a consistent philosophy?

      [Explaining how they see it.]

      Life is sacred because God says so, but God, being the creator, also has the right to take life. A properly conducted government derives its authority from God, and governs on Earth on his behalf in accordance with Biblical principles, and so has the right to take life, whereas a “private person” does not.

    • Sastra
      Posted February 1, 2017 at 8:58 am | Permalink

      How do they reconcile this to be a consistent philosophy?

      The same way they reconcile a God of Infinite Mercy and Love who invented Hell.

    • GBJames
      Posted February 1, 2017 at 9:35 am | Permalink

      Since when does religion seek philosophical consistency?

    • chris moffatt
      Posted February 1, 2017 at 11:24 am | Permalink

      It’s called ‘cognitive dissonance’ and is the same as how Gorsuch can be an “originalist”, believing that the constitution must be interpreted according to its original 18th Century context, and a “textualist” believing that law must be interpreted without reference to its context.

      • Grania Spingies
        Posted February 1, 2017 at 1:34 pm | Permalink

        Yeah, that bit had me furrowing my brow too.

        • infiniteimprobabilit
          Posted February 1, 2017 at 11:40 pm | Permalink

          Me too.

          (The answer, of course, is that he can then choose whichever way suits him at the time.

          What, me, cynical?)

          cr

  9. Barney
    Posted February 1, 2017 at 8:30 am | Permalink

    PCC,
    An appointment that is just as worrying for your profession (and the world in general):

    Jerry Falwell Jr. Says He Will Lead Federal Task Force on Higher-Ed Policy

    Jerry L. Falwell Jr., president of Liberty University, has been asked by President Trump to head up a new task force that will identify changes that should be made to the U.S. Department of Education’s policies and procedures, Mr. Falwell told The Chronicle on Tuesday.

    The exact scope, size, and mission of the task force has yet to be formally announced. But in an interview, Mr. Falwell said he sees it as a response to what he called “overreaching regulation” and micromanagement by the department in areas like accreditation and policies that affect colleges’ student-recruiting behavior, like the new “borrower defense to repayment” regulations.

    http://www.chronicle.com/article/Jerry-Falwell-Jr-Says-He-Will/239062/

    • Randall Schenck
      Posted February 1, 2017 at 12:37 pm | Permalink

      Hell, why don’t they just crank up Trump U. Put one in every town and call it public ed. Just a small admittance fee at first and them pow, let them have it.

  10. Charles Phillips
    Posted February 1, 2017 at 8:35 am | Permalink

    “the intentional taking of human life by private persons is always wrong”.
    Neatly worded to allow for the state intentionally taking lives…

    • Sastra
      Posted February 1, 2017 at 9:00 am | Permalink

      … or, alternatively, an angry mob.

  11. Jeff
    Posted February 1, 2017 at 8:52 am | Permalink

    Maybe I’m missing something, but (using the definitions given in this post), how can someone be both an “originalist” and a “textualist”? These seem to be in opposition.

    • darrelle
      Posted February 1, 2017 at 8:56 am | Permalink

      Yeah. Noticed that right off. It’s okay for whoever is in charge to kill people, but not for people to kill themselves, because every life is sacred. Makes perfect sense.

      • darrelle
        Posted February 1, 2017 at 9:40 am | Permalink

        Oops. Wrong place. The above was supposed to be a response to Charles Phillips, comment 10, just above. Senility so soon?

    • Dragon
      Posted February 1, 2017 at 10:19 am | Permalink

      Easy. If you are both, you can use either argument to support a post hoc rationalization of what you personally want, or know Baby Jesus wants. If you are only e.g. an originalist, there may be a topic where pretending the forefathers wanted exactly what you want sounds disingenuous*. Especially when you are disingenuous, you don’t want to sound disingenuous.

      * Because a constitutional lawyer who is an originalist must know many of the forefathers wrote the contrary but pretends they didn’t. Re: Scalia on corporations.

  12. darrelle
    Posted February 1, 2017 at 8:52 am | Permalink

    I think the Democrats should do all that is possible to block Gorsuch’s nomination. Sure, the ends don’t necessarily justify the means, but I really don’t think there are any downsides here ethically or tactically speaking.

  13. Geoff Toscano
    Posted February 1, 2017 at 8:52 am | Permalink

    I don’t know about other countries, but living in the UK I find myself unable to recognise this Supreme Court appointment fiasco. Appointment to the Supreme Court in the UK is not, in any way, political. It is based entirely on legal experience and expertise and is, to all intents and purposes, done by a legal committee. To have the kinds of views, biases, and prejudices that seem to accompany US appointments would be likely to bar an individual.

    The irony is that academically anyone in the US getting near to the point where they might be nominated, has to be a very gifted person, with appropriate pedigree. Ivy League will feature inevitably, as does Oxbridge in the UK. So the only factor distinguishing the judges isn’t a lack of legal or reasoning ability, rather a supernatural fog that exists in those who hold strong religious views.

    • darrelle
      Posted February 1, 2017 at 9:35 am | Permalink

      “To have the kinds of views, biases, and prejudices that seem to accompany US appointments would be likely to bar an individual.”

      That is indeed the issue. Requiring people to make decisions based on their best, intellectually honest interpretation of the law rather than their ideology is a tough requirement. Several of the more recent SCJ don’t even bother to try, and don’t even bother to try and hide that their decisions are ideologically driven.

      Really, it is impossible to remove ideology from the process. At base the problem is that much of the ideology of the SJCs on the Right sucks.

      “So the only factor distinguishing the judges isn’t a lack of legal or reasoning ability, rather a supernatural fog that exists in those who hold strong religious views.”

      I can’t agree with that. I’ve met plenty of PhDs that exhibit shockingly poor reasoning skills. Consider Scalia. I’m sure someone will comment that he was real smart. I never saw any indications of that. For a classic example (one of many) . . .

      “Mere factual innocence is no reason not to carry out a death sentence properly reached.”[Antonin Scalia]

      Yes, one could argue that that is evil, and it is. But it’s also stupid.

      • Geoff Toscano
        Posted February 1, 2017 at 10:12 am | Permalink

        If the last part of your comment is true, which I’m sure it is, then that is sad. It takes Scalia to the point of being sub-human.

      • Posted February 1, 2017 at 2:54 pm | Permalink

        I do not understand what Scalia meant. How can a death sentence be properly reached if the factual innocence of the convict is known?

        • Pali
          Posted February 1, 2017 at 4:35 pm | Permalink

          Much as I hate Scalia, in context the quote isn’t all that damning. Essentially, a man was seeking his release under habeus corpus (unlawful detention) grounds as new evidence had arisen showing his innocence. Scalia’s apparent intended meaning (according to the following Snopes article) was that new evidence doesn’t make the original conviction unlawful, therefore habeus corpus is not a relevant issue regarding the case and that other forms of legal relief are sufficient for dealing with new evidence.

          http://www.snopes.com/scalia-death-penalty-quote/

  14. Jim Knight
    Posted February 1, 2017 at 8:53 am | Permalink

    I was an Infantryman in Vietnam, and I am a “private person.” I had to learn the difficult lesson of coping with what happened over there. I wonder what his positions on war and PTSD are?

  15. Posted February 1, 2017 at 9:09 am | Permalink

    That NYTimes graphic…ugh.

    You noted the paper that it’s based on. Well, here’s how that paper generates its “ideology scores”:

    “If a judge is appointed from a state where the president and [exactly] one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.”

    Colorado has one Republican Senator (Corey Gardner), so Gorsuch’s “ideology” is based entirely on Corey Gardner’s ideology as assessed by DW-NOMINATE.

    Gardner was elected to the Senate in Nov. 2014. But DW-NOMINATE only has data through the end of 2014, so its dataset doesn’t include *any* of Gardner’s time as a Senator; it only includes his time in the House from 2011-2014. Since then, he has moved considerably to the center.

    So, to sum up: the graphic that assesses Gardner’s “ideology” is based on a single organization’s two-years-out-of-date assessment of a single Senator’s voting record from a period in which he was not actually in the Senate.

    Please don’t use it. It’s useless at best, actively misleading at worst.

  16. Posted February 1, 2017 at 9:10 am | Permalink

    I tend to agree with Jerry on this one. The expansion of executive orders in scale and scope was criticized by lots of people for the very reason that when a guy we hate gets those powers- precedent has been set and we’ve lost the argument. Granted, I might have done just as Obama did in light of the refusal to cooperate on any efforts from the Republicans- it was always a tough situation. However, why make “stomp my foot until I get my way” our leaders’ M.O.’s? We’ve seen several leaders on the right begin to stand up to the sweeping illiberal policies being put into effect- those are the ones we need to be compromising with. That conversation cannot be had if everything coming from the Right is ignored and blocked from the get-go. Some things we cannot cave on, but the confirmation of a conservative Justice, who as Mr. Coyne pointed out is not that outlandish given our countries split ideologies, is a reasonable place to demonstrate that we’re not simply trying to keep conservatives out of government- we’re trying to uphold American values that both sides have valued for a long time. Those include compromise and cooperation with ideological opposites. When we demonstrate to conservatives that cooperation is not possible- the only way they can move any center-right policies forward is to stay in their corrupt camp and deal with the fallout. This is the exact reason why so many Republicans were vocally critical of Sen. Cruz’s refusal to cooperate with Democrats. Government standstills are good for no-one.

    • Historian
      Posted February 1, 2017 at 9:26 am | Permalink

      The whole Republican strategy under Obama was not to cooperate. Obama tried to compromise but was rebuffed. This strategy was eminently successful for the Republicans. If the Democrats think that cooperation with the Republicans will somehow bring the country together then they are total saps. Democrats are unlikely to move many Republicans to the center by cooperating. This is a failed strategy. What Democrats need to do is to recruit more voters from the vast pool of people who are alienated from the system. These people need to be shown that Democratic policies will improve their lives.

      For all too long the Republican bullies have beaten the Democrats to their knees. It is time for Democrats to get up and not be bullied any more. I suppose I could be classified as part of the Democratic base. And, like many of my compadres, I urge Democratic leaders to realize that they are in a no-holds barred fight. If they don’t realize this or are unwilling to act, they need to be replaced by people who anatomically have a spine.

      • Randall Schenck
        Posted February 1, 2017 at 12:39 pm | Permalink

        I can only agree with this. War was declared long ago so get to it.

  17. Craw
    Posted February 1, 2017 at 9:40 am | Permalink

    He should be speedily confirmed; the senate has dragged its heels on confirmation far too long already.

    >:D

    • Posted February 1, 2017 at 1:16 pm | Permalink

      I assume you’re talking about confirming Merrick Garland.

  18. Taz
    Posted February 1, 2017 at 9:45 am | Permalink

    The Democrats should not shy away from playing by the rules laid down by the Republicans. With Trump in power, their only consideration should be: “what will play better in 2018?” I don’t know the answer to that – I hope they do.

  19. Kevin
    Posted February 1, 2017 at 9:48 am | Permalink

    The Gorsuch pick is a reminder that law is still very much old world.

    Organizations, like DOT and NPFA /NEC are going to continue to do what they always do without the hubris and archaic idea that a few individuals are limited to do.

    Engineering controls and Bayesian analysis are the groundwork for the constraints that determine the majority of actions in our lives.

    Minimized human suffering through science. It’s a slow march but will eventually make Supreme court justices irrelevant.

  20. Dominic
    Posted February 1, 2017 at 9:54 am | Permalink

    Now they will stop him being blocked
    independent.co.uk/news/republicans-change-rules-so-trump-cabinet-pick-cant-be-blocked-a7557391.html

  21. eric
    Posted February 1, 2017 at 9:58 am | Permalink

    Should Gorsuch be confirmed?…

    …By all accounts , he’s smart and not horribly divisive. His record itself warrants confirmation.

    But, mindful of l’affaire Merrick, Senate Democrats will be putting up a fight on this one. I’d say that they shouldn’t do that, as it’s just as obstructionist as we have accused Republicans of being.

    I think there’s a difference between serious and careful review, vs. obstructionism. Gorsuch looks good on paper, but the media and Dems have been background checking him for, what, a week? Maybe two or three? Take a couple months to review his record. Ask lots of questions. Give him the sort of vetting the GOP refused to even start on with Merrick. If nothing untoward turns up, then we can talk the ethics of obstructing vs. ‘advising and consenting.’ But I think a giveupski at this point is conceding too much; it’s not even doing the standard due diligence the Senate is supposed to do.

  22. Posted February 1, 2017 at 10:00 am | Permalink

    I heard on CNN that a potential strategy for the administration is to pick a fairly traditional nominee now in the hope that it will placate Kennedy and prompt him to retire. Then pick a more conservative nominee to replace him.

  23. Karl Withakay
    Posted February 1, 2017 at 10:01 am | Permalink

    I’m not sure about this. I kind of feel like the Democrats should save their powder fro winnable battle.

    However, any SCOTUS nomination the Republican President makes in the last year of their term is fair game for tit for tat.

  24. tomh
    Posted February 1, 2017 at 10:05 am | Permalink

    Gorsuch, and all Trump nominees, should be opposed on the grounds that the next justice should be chosen by a majority president. The Court seems to be getting along fine with eight, and if another seat opens it will be back to an odd number. There is nothing magical about having nine justices.

  25. Cate Plys
    Posted February 1, 2017 at 10:07 am | Permalink

    I agree with Jerry’s basic point that this guy would not be out of line (or at least, not crazy out of line) for a Republican president to nominate, if it weren’t for the Merrick Garland fiasco. My only quibble: He isn’t being nominated for a “conservative seat.” No seat on the Supreme Court should be automatically of any political stripe. The way the court has been stacked since Reagan at least, it does seem that we all take it for granted that these conservatives get to be replaced with more conservatives. Here’s a good place not to normalize. Not that it’s possible to ever reach the utopia of having completely un-partisan justices, of course. But at least someone like Garland was pretty neutral.

    • eric
      Posted February 1, 2017 at 12:12 pm | Permalink

      I agree. Moreover, from a practical matter, there is no possible way Trump or the Senate or the House would replace RBG with a liberal, so the concept of a ‘political seat’ is going to go out the window this term anyway.

      • Cate Plys
        Posted February 1, 2017 at 4:08 pm | Permalink

        Yes, exactly!

  26. KD33
    Posted February 1, 2017 at 10:32 am | Permalink

    “Suck it up” on Gorsuch may be the right response, but barely. The best reason I can see is that he’s “not divisive,” the lead tag on so much press about him today. But make no mistake, he will be voting hard right, straight down the line. And when do we stop sucking it up? Repubs have gerrymandered the landscape to inoculate their Congressional majority against true democracy; orchestrated a powerful state- and national-level judicial strategy to roll back women’s rights, with increasing damage; reached into our schools to rewrite history and bowdlerize science; blatantly disregarded decades of legislative convention to obstruct an opposition president, at great peril to our economy (remember the budget standoffs?) and shove through agency heads that are dripping with conflict of interest and are at best borderline competent; changed laws with the intent of making it harder for traditional Dems to vote; called effective new policies that have significantly improved American health simply “failed laws,” contrary to evidence; denied the clear facts of climate change; have ominously muzzled science within government agencies; institutionalized discrimination by religion; repeatedly hurt our economy with ideology-driven policies that have been proven to not work (actually one of my biggest worries for the next 4 years); and appear once again to use the tools of “defunding” to disproportionately hurt the poor and women. This track record does not reflect “polarization” in America. It’s a one-sided, slow-motion power grab by a morally and ethically challenged political group. I’m getting tired of sucking it up.

    • Pabs
      Posted February 1, 2017 at 11:09 pm | Permalink

      Agreed. I’m glad PCC changed his mind. I want to see principle and integrity somewhere in my country’s government, but I also want the lives of my fellow citizens to be respected and improved, or at least not worsened.

      The Republican party has been machinating for decades to cripple democracy so they can ensure a permanent grip on every lever of government; and we see time and again that once they get power, they use it to break things. It appears to have mostly come to fruition now. If the Democrats – who are by no means paragons of nobility, of course, but are the closest realistic thing we have right now to a progressive, secular, egalitarian option – can’t figure out how to either play the game just as ruthlessly as the Republicans or force them to start playing in good faith, people will be hurt and democracy will be stunted for decades (possibly centuries?) to come.

      Garland was an objectively moderate choice, nominated as an olive branch and an attempt at reasonable governance. He was obstructed out of bald, petulant spite. Gorsuch is no such thing. There are legitimate, civil rights-related reasons to deny him the seat. We need the remaining tatters of progressive ideals in our government to stiffen the spines of the Democratic party heading into the 2018 midterms, and then some.

  27. busterggi
    Posted February 1, 2017 at 10:48 am | Permalink

    Why confirm anyone? We don’t need a Supreme Court when we have a Supreme Leader to make all our decisions.

  28. busterggi
    Posted February 1, 2017 at 10:48 am | Permalink

    Why confirm anyone? We don’t need a Supreme Court when we have a Supreme Leader to make all our decisions.

  29. Mark Cagnetta
    Posted February 1, 2017 at 10:57 am | Permalink

    We learned from Scalia that an “originalist” simply means, “I’ll interpret the Constitution according to my Catholicism.” I learned in sixth grade what the First Amendment means and it has nothing to do with granting religion autonomy over our government.

  30. Ken Kukec
    Posted February 1, 2017 at 11:07 am | Permalink

    If Gorsuch is confirmed, for the first time since J.P. Stevens retired in 2010, there’ll be a Protestant on the Court again, to go with all the Catholics and Jews. Maybe Trump means to create an “Episcopalian seat” with this appointment, the way Woodrow Wilson did a “Jewish seat” with the appointment of Louis Brandeis.

    I’m not surprised Trump chose Gorsuch. Trump likes bright, shiny resumes. And Judge Gorsuch has nothing if not that — degrees from Columbia, Harvard, and Oxford, a Supreme Court clerkship, public-sector service, and a 10-year stint on the federal appellate bench.

    Trump also likes his appointees to look like they came from central casting. The demeanor of the tall, well-groomed, ramrod-straight Gorsuch is one of rectitude, thoughtfulness, and bonhomie — Atticus Finch, if Gregory Peck suddenly lost all the melanin in his hair.

    Given his qualifications, Gorsuch would be a shoe-in for confirmation under ordinary circumstances. But these are no ordinary circumstances: the pall of the Garlick debacle hangs heavy over the senate chamber, and will be felt no doubt in his Judiciary Committee questioning. I’ve certainly got the red ass over the bullshit pulled by Mitch McConnell and his tribe last year, and I’m plainly far from the only one. Expect senate Dems to extract a pound of flesh one way or the other.

    In this regard, I’m even miffed a bit at Obama for not pushing the Garland matter harder, for not making Republicans — particularly GOP senators running for reelection in blue and purple states — pay a price for their obstructionism. He should’ve been out there flogging them from the stump every day. He didn’t, I figured, because he thought Hillary would win and get the appointment, and he didn’t want to upset the apple-cart of her campaign strategy (such as it was). Can’t really fault him there; I thought the same thing.

    • Posted February 1, 2017 at 1:08 pm | Permalink

      For which, he’s now being blamed for her loss.

      • Ken Kukec
        Posted February 1, 2017 at 1:16 pm | Permalink

        That’s ridiculous; he worked harder for her election than any incumbent has for any would-be successor in the past century.

    • Sastra
      Posted February 1, 2017 at 1:25 pm | Permalink

      Yes, I thought the same thing re central casting. It’s been noted in more than a few places that Trump wants people who look the part. He no doubt imagines that the immediate reaction is the important one, like judges listening to an audience clapping when the winner of the Miss Universe pageant is announced. Yeah, she’s a looker. He picked a winner.

      • Badger3k
        Posted February 1, 2017 at 1:42 pm | Permalink

        Wait a minute – how does Bannon fit in? The man looks like he should be sipping sterno around a trash-can fire.

        • Sastra
          Posted February 1, 2017 at 1:47 pm | Permalink

          Bannon’s not for the public, he’s the insider, the personal friend from third grade, the guy with the dirty mags and his dad’s bottle of Jack Daniels waiting for Donnie behind the Yacht Club at midnight.

        • Ken Kukec
          Posted February 1, 2017 at 2:12 pm | Permalink

          Man looks like an unmade waterbed. But, as Sastra said, he’s strictly a creature of the west wing, not fit for public consumption.

      • Ken Kukec
        Posted February 1, 2017 at 2:24 pm | Permalink

        Yeah, I’m pretty sure that’s the only reason Trump gave Mitt Romney some play for Secretary of State, he looked the part — well, 1that, and he wanted to dangle it and snatch it away as payback for Romney’s having called him everything but an orange man during the primary campaign.

  31. JonLynnHarvey
    Posted February 1, 2017 at 11:13 am | Permalink

    The courts ruled long ago that the 7th amendment must be corrected for inflation.

    It guarantees right to trial by jury (as opposed to lone judge) if you are sued for an amount greater than $20 (sic).

    If you are an “originalist” and/or “textualist” does the border-line between right to a jury vs. settling for a judge revert to $20???

    “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

    • Posted February 1, 2017 at 11:46 am | Permalink

      There are a few places like that, aren’t there? The salary of the president?

    • Ken Kukec
      Posted February 1, 2017 at 12:16 pm | Permalink

      As far as I can tell, the Court isn’t about to grant certiorari on the issue of the jurisdictional amount necessary to trigger the right to a jury trial in civil cases. (Most jurisdictions, I believe, allow a plaintiff to opt for “small claims” court before a judge alone, but do not prohibit him or her from seeking a jury trial in a court of general jurisdiction.)

      The more serious question I have for constitutional “textualists” — and one I’ve yet to get a satisfactory answer on — concerns the Fifth Amendment Double Jeopardy clause. It provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb” — nothing in the text concerning imprisonment, or probation, or a fine. Accordingly, under a straightforward texualist interpretation, a prosecutor should be free to put a defendant on trial multiple times for a crime for which those are the prescribed penalties (which is to say, for the vast majority of crimes, inasmuch as we’ve abrogated limb-amputation as a punishment, and the death-penalty applies in only a limited number of cases in the states that retain it). That would, however, represent a major sea change in Anglo-American jurisprudence.

      I query whether so-called “textualists” have the strength of their conviction to follow their logic through on this matter.

      • JonLynnHarvey
        Posted February 1, 2017 at 8:42 pm | Permalink

        “Life AND limb” was already an idiomatic expression for risk in general dating back to the 1600s.
        Very early on the courts recognized that the wording implied no double jeopardy for any crime regardless of penalty.

        • Ken Kukec
          Posted February 2, 2017 at 8:41 am | Permalink

          I certainly understand that; it’s part of my point. I’m not sure how a “texualist” can deal with idiomatic phrases under such circumstances — especially when the same constitutional amendment elsewhere contains the word “liberty,” the term the drafters presumably would have used if, under a texualist interpretation, the double jeopardy clause was meant to apply to imprisonment.

  32. Maria
    Posted February 1, 2017 at 12:14 pm | Permalink

    I feel like I’m in a nightmare and I can’t wake up.

    • Posted February 1, 2017 at 12:40 pm | Permalink

      I said those very words last night after watching the evenings news, and I’m in Canada!

  33. Posted February 1, 2017 at 12:35 pm | Permalink

    I fear that we may need to think further out: there is the distinct possibility that Row v. Wade is going to fall, and abortion will once again only be legal in certain states.

    The problem for Liberals is that they give in so often that slowly, bit-by-bit, they find themselves on entirely ground. It’s no longer a matter of protecting a woman’s right to choose, but helping the poor who will now be forced to give birth to unwanted children (who will grow up to be criminals, if the numbers of Freakonomics play out once again – watch for crime statistics to start climbing in about 16 years from the date of the law being tossed out.

    Fortunately, technology is more advanced now, and one issue will be drug smuggling to the poorer states the necessary Plan B drugs, as well as other medicines that will need to be developed and distributed to the poor. I forsee charities set up to do just this.

    Hope for the best, but plan for the worst, or you end up assuming that Hilary Clinton is our President and have no plans for the apocalypse (or at least a couple of wars, trade and otherwise).

  34. Historian
    Posted February 1, 2017 at 12:44 pm | Permalink

    Many pundits have argued that by virtue of his education and experience, Gorsuch is qualified to be on the Supreme Court and that should end the matter. Assuming that such utterances are made in good faith, these people have little understanding of the reality prevailing in the age of cutthroat politics initiated by the right wing and its impact on the lives of many millions of people. What should count is the nominee’s judicial philosophy. Here’s an analogy. Should a well-educated creationist be welcomed to a university biology department simply by virtue of educational credentials? I think not. Likewise, when considering a nominee for the Supreme Court, senators need to consider the person’s judicial philosophy through his/her writings, speeches, and court decisions. If the nominee’s philosophy is significantly at odds with that of the senator, then the only logical thing to do is vote against confirmation. The Republicans during the Obama years rejected nominees for various positions simply on the basis that the nominee was considered too liberal or simply to obstruct Obama. Thus, any Democratic senator who should vote for Gorsuch will be betraying the party’s principles. That is the world we live in. Too much is at stake. Democrats should no longer be patsies for the ruthless Republicans.

    • Sastra
      Posted February 1, 2017 at 1:34 pm | Permalink

      I just read an interesting article here which argues that Gorsuch is actually surprisingly good on some issues. He ‘has a proven record of standing up to the executive branch’ is strong on the 4th amendment, and has been fair on immigration.

      It’s possible that Trump outsourced the selection of the nominees and specifically picked Gorsuch not because he’s an authoritarian dream candidate, but because he’s handsome and looks the part.

      The writer notes “Trump has nominated a thoughtful judge who seems as likely to challenge the inevitable future Trump power grabs as any justice on the court. The added bonus here is that should it come to that, Trump would be opposed by his own nominee.”

      I don’t know. But perhaps it’s wise to consider accepting Gorsuch on merits.

      • tomh
        Posted February 1, 2017 at 2:11 pm | Permalink

        On the other hand, his lengthy record on church-state issues is abysmal, he will undoubtedly uphold abortion restrictions and limit gay rights. He wrote a whole book on the evils of assisted suicide. He consistently sides with corporations and would limit federal regulators doing their jobs, among a host of other right-wing positions. I’m not saying it’s likely Trump would nominate anyone any better, but there’s no reason to view him through rose-colored glasses.

        • Sastra
          Posted February 1, 2017 at 2:15 pm | Permalink

          No, not rose-colored glasses. But letting in some light, if it’s there.

  35. Ken Kukec
    Posted February 1, 2017 at 2:48 pm | Permalink

    Trump’s selection of Gorsuch was a sop to movement conservatives and the Republican establishment. He figured he’d let ’em have one since he doesn’t give a damn about what SCOTUS does — and won’t unless and until the Court crosses him. Then, there’ll be hell to pay, with Trump taking off after individual justices in his tweets. (“Dying RB-Ginsburg says immigration ban unconstitutional. Must be senile. Sad!”)

    More and more, the congressional Republicans signing on to Trump’s agenda sound like the abused spouse of the town drunkard. (“If only he’d stay off the tweet-machine; he can be so nice!” “He only strikes out when he feels illegitimate because people mock his numbers. Please stop!” “He was so sweet on our birthday when he gave us this shiny, new Supreme Court justice. Why can’t he always be like that?!”)

  36. HaggisForBrains
    Posted February 3, 2017 at 4:02 am | Permalink

    sub


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