Columns, Congress, Constitutional Law, Courts, Media, Politics, Supreme Court

GAME CHANGER: THE GORSUCH NOMINATION GOES TO CAPITOL HILL

ap17024739756097donald_trump_president-elect_portrait_croppedBelow is my column in The Hill newspaper on the nomination of Tenth Circuit Neil Gorsuch.  If President Trump sought to change the subject from immigration, I doubt this will do it. However, as I discuss in the column, if he sought to quiet restless Republicans over a truly dreadful performance of the Administration in the first week, the nomination should do so. He is a jurist with impeccable credentials and will be very impressive in the upcoming hearings.  He is, to put it simply, a game changer.

THE NOMINATION OF NEIL GORSUCH

With the nomination of Neil Gorsuch to the United States Supreme Court, President Donald Trump not only fulfilled yet another campaign promise (to appoint a conservative to the Court) but showed Washington that he could find the strike zone in American politics.

Up until now Trump has unnerved many Republicans as a pitcher who seemed only to throw at the heads of batters. As bases filled up with badly botched press conferences and executive order rollouts, there was an audible rumbling among members of Congress about the course of the administration. This nomination will quiet some of that rumbling.

Gorsuch is unassailable in his experience, intellect, and demeanor. What is left is his conservative view of the law, but he is not the type of nominee who can be easily “Borked.” In other words, to return to baseball parlance, Gorsuch is a heater right down the middle.

With Gorsuch, conservatives get a nominee with the type of intellectual chops that could fill the void left by Scalia. At 49, he can serve for decades and could prove to be a rallying point for a new conservative Court if Trump replaces any of the three oldest justices: Ginsburg, Kennedy, and Breyer. All three will be in their 80s during Trump’s first term. While Gorsuch will not move the center of gravity on the court in a swap of a conservative for a conservative, any one of these justices could leave a transformed court in their wake if they leave during the Trump presidency.

Gorsuch is the closest you can get to conservative aristocracy in Washington. He is the son of  Anne Gorsuch Burford, the first female head of the United States Environmental Protection Agency from 1981 to 1983. He spent time in Washington, D.C. and attended Georgetown Preparatory School. He studied at Columbia, Harvard and Oxford.

He went on to clerk for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991–1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy from 1993–1994. That connection as a former Kennedy clerk could be highly useful in securing the vote of the perennial swing voter of the court.

Gorsuch is largely an unknown on abortion. However, he appears to accept that legislators can legislate to achieve moral ends. He wrote a law review article in 2000 and a book in 2006 that criticized assisted suicide laws. Some six states currently have such laws.

Gorsuch, who is an Episcopalian and would be the only Protestant on the Court, is also very strong on religious freedom. Indeed, that may be an area that could become the very signature of his tenure on the Court. He voted in favor of Hobby Lobby and Little Sisters of the Poor in their challenge to the Affordable Care Act’s contraceptive mandate. Gorsuch wrote that the government had transgressed upon “sincerely held religious beliefs.”

Gorsuch could also prove highly influential on federalism. His writings reveal a more firm position on states rights than some members like Chief Justice John Roberts, who is still blamed for effectively gutting federalism in the first Obamacare ruling (by finding a violation but then upholding the law under a tax theory despite that violation). Indeed, Gorsuch could prove a driving force to resume the federalism revolution that we saw under the late Chief Justice William Rehnquist.

The most interesting aspect of Gorsuch’s jurisprudence is his view of agencies — a view that would produce an immediate change on the Court as a deviation from Scalia’s voting record. Gorsuch has criticized the decision (a view that I share) and has indicated that he would prefer a less deferential approach to agency decision-making.

Scalia upheld such deference, though I have heard that he privately expressed qualms about that aspect of his jurisprudence toward the end of his life. It is his position on federal agencies that I consider the most interesting in this nominee. Gorsuch has warned how federal agencies “concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In a line that could now become prophetic, Gorsuch declared “Maybe the time has come to face the behemoth.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and teaches a course on the Constitution and the Supreme Court.

 

68 thoughts on “GAME CHANGER: THE GORSUCH NOMINATION GOES TO CAPITOL HILL”

  3. “…However, he appears to accept that legislators can legislate to achieve moral ends. …

    How can this be justified when the Constitution expresses a separation of Church and State?

    I’d like to know why that concept has been so thoroughly steamrolled?

  4. https://www.ca10.uscourts.gov/opinions/10/10-1192.pdf

    Whoever is vetting Judge Gorsuch, please read Noman v. Social Security Administration. 10th Circuit opinion 10-1192. It says

    In response to Mr. Norman’s “flurry” of frivolous, abusive, and repetitive pro se complaints from 1989–91, the district court issued an order instructing him not to file any more complaints “without the representation of any attorney licensed to practice in the State of Colorado and admitted to practice in th[e district] court, unless [he] first ha[d] obtained leave of the court to proceed pro se in accordance with specific procedures.” Ketchum v. Cruz, 775 F. Supp. 1399, 1404 (D. Colo. 1991).

    Ask Judge Gorsuch what those specific procedures are that will allow one to regain the right recognized in the U.S. Judiciary Code 28 USC § 1654 see

    https://www.law.cornell.edu/uscode/text/28/1654

    In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

  5. As far as game changer…

    I don’t know much about the Supreme Court nomination, but I think Trump’s first week qualifies.

    I kinda like it.

  6. anon: “The Commander in Chief,Trump,is responsible. Glad I don’t have a job defending the indefensible.”

    Hoo, Boy. You and me both. Remember Benghazi?

  9. The personal proclivities of any judge originate their arguments for or against the issue at hand. One is inherently conservative or resisting change for fear of losing stability or progressive/activist seeking out change for the better. This has been so throughout the history of mankind.

    Every judge is given the legal history of the country as the backbone of their argument. Some judges take this one step further and reference what the originators of the laws were thinking or what they really meant. There are many recorded documents, letter, essays, and other iterations that illustrate the thoughts of the men at the time(s) the words were written. However, these sources were written by those men at that time.

    For a judge to use as the core of their argument their somehow mysterious ability to understand better than others the intent of men who pondered much different issues in much different times is next to ludicrous. Yet Scalia combined an almost encyclopedic grasp of the law with his selective interpretation based on just this mysterious ability. Now we have Gorsuch with the same song and dance routine. Gorsuch is who he is and will, as did Scalia, design his interpretations around his personal views whether they originate religiously, are a conditioned response due to his upbringing, or acquired through and reinforcing a specific physiological bent, i.e. left brain/right brain. He will be no different than any 21st Century person. However, using a special relationship with the founding fathers and what they meant is no different than the Imams and Popes leading the population with their claims of mysterious and unique conduits to sacred texts and/or beings.

    This quasi religious approach to the law is what keeps this country from evolving to what, and here I take the same liberty, the founding fathers truly desired, the cutting edge of humanity. Humanity is different from all other species in that it seeks to regulate the forces of nature which drive all things. In this way mankind is the creator of all the devices that have been used, are used, and will be used in attempting to keep us from annihilating ourselves. When we throw off the responsibility to govern ourselves onto a fabricated deity or a group of people who lived centuries ago in another time and circumstance, we become irresponsible and closer to that simply and dangerous force of nature. Gorsuch is a step backward.

    1. issac – you assume that progress is better. It is not. We progressed into the 20th century and got 2 world wars, the Spanish flu, polio epidemics, etc. Was any of this better?

        1. issac – that was a very cogent response. Did living in Canada freeze your brain cells?

    2. I so applaud your view. If people are not able to effect the changes NECESSARY to survive and thrive in a civilised manner, through legal channels without the constant upheaval by the legal entanglement and thwarting by those in the minority who still cling to PERSONAL views that are not consistent….where does that leave us? When the law and legal minds serve only themselves against the represented people does that not make the ‘Legal’ body more akin to an organized Mob? Is this not why we have a separation of Church and State written into our founding documents? Where people are free to make their own choices in their own lives to their own selves you do not have to do the things you don’t believe in, but if we are set to live in a land where people can do as they will to others and the consequences are to be accepted s deemed ‘Biblically proclaimed and so viable’, then we have already lost everything we stood for. Even Jesus got to move on ……..

  10. If he’s for States’ Rights, he should favor states making their own way with regard to cannabis, abortion, and assisted suicide. So there’s an inconsistency here, sometimes called a lie.

  12. Experience does not mean talent. Hobby Lobby case was based on plaintiff lies and an unconstitutional interpretation (doesn’t sound originalist to me) that legal entities (NOT a person) based on profit have unequal special rights that real, breathing, living Americans do not. Will McConnell likely eventually go nuclear to get this steaming pile of bible buffalo chips in………..probably yes…….

    Much like the incompetent (excuse me….bigly incompetent, infantile liar in thief) a big loss for the USA.

  13. ” … quiet restless Republicans over a truly dreadful performance of the Administration in the first week, the nomination should do so.”
    ****************************
    Dreadful week? It was only dreadful if you oppose his policies and hoped he didn’t mean what he said. It was a week of fulfilling every election promise possible. I’ve never seen more activity from an administration in my lifetime nor one more dedicated to doing what it said it would do. Elections and campaign promises do have consequences even if we haven’t seen that little truism for a long, long time. Feathers got ruffled to be sure but that’s on the the opposition who compare Hitler favorably to Trump. Trump is the needed yang to the leftist ying zeitgeist. If the Republicans are nervous, it’s because they are part of the quickly draining swamp. Every riot, every call for assassination, every Hollywood attack and every clever dig by a career politician regardless of party cements him as a popular hero among his growing base. Oppose him at your peril. Nothing more powerful than an idea whose time has come, to steal a phrase.

    1. Dreadful day yesterday, eh? That is unless going after Australia is part of your new world order.

    2. That was my thoughts as well Mespo. They’re still trying to measure Trump by his predecessors; especially the last one.

        1. Military officials say Trump approved first covert operation without sufficient intelligence, ground support or backup.

          1. So you believe his military advisors told Trump we do not have “sufficient intelligence, ground support or backup” and Trump said “sounds good to me, go for it”? And you didn’t think to question the reasonableness of that claim? What is the source for that “news”? Wow!

              1. ” Military officials said that there was insuffient intelligence” after the raid.
                That raises a couple of questions:
                Did Trump consult with “military officials” BEFORE the raid.
                And what did “military officials” say about the sufficiency of intellegence BEFORE the raid?

                1. tnash – according to the article the raid had been planned by Obama. Was there the same lack of information, planning, backup in his plan.

                  1. Obama refused to approve the raid because there was insufficient intelligence, etc. I think Trump did a great thing by moving two of the statutory members of the NSC to the back bench. He guarantees that he doesn’t get the best information, not that he would listen.

                    1. “Obama refused to approve the raid because there was insufficient intelligence, etc.”

                      bettykath,
                      Do you have a source for that? I ask because the article that has been attached in this thread does not agree with that statement.

                    2. Bettykath,
                      I have no way of knowing who advised Trump on this mission, or what specific advice and recommendations wers given.
                      -On a related matter, three anonymous NFL coaches will discuss why the losing team had an inadequate game plan.
                      Sceduled for Monday morning.

                    3. bettykath is always loaded w/ “alternative facts.” Obama HATED raids. They were too messy for the Prissy Prez. Obama quickly fell in love w/ drones and used them almost exclusively until leaving office. The MSM and the liberal lemmings[w/ a few exceptions] never said a peep as Obama shredded woman and children from above. Being robotic himself, they fit his fastidious nature. We have 8 years of catching up on gathering hard intelligence.

                    4. Nick – Bill Clinton was the same way as Obama, kill from above. No boots on the ground.

                    5. bettykath – if I were Trump, I would be concerned that members of the Armed Forces were telling tales out of school.

                1. Paul Schulte…
                  If we are going to have anonymous “military sources” weighing in in the adtermath of missions with American and/ or civilian casualties, then we seem to be in a new era re involvement of “military sources” with the press.

              3. “Trump approved the early Sunday morning raid, but it had been in the works under the Obama administration for months.

                The New York Times reported that Obama’s national security aides had approved the plans for the risky attack and that Obama had not acted because the military wanted to launch that attack on a moonless night. The next such night would have been after his term.”

                So anon, if I’m reading this correctly there was sufficient intelligence for the prior President to launch the attack but not enough for the current one? What was Trump missing, a meteorologist to explain moonlight coverage over Yemen?

                1. But Obama did not give final approval for the risky endeavor and did not go forward with it. Trump met with his advisors over dinner and decided to give the go ahead. Obama has been criticized for being too cautious but in this case he made a wise decision and President Trump did not.

                  1. anon – Obama was waiting for the next dark moon which wouldn’t happen until he was out of office. This is like Kennedy and the Bay of Pigs. BTW, do you think Obama would have gone to the funeral of the SEAL?

                    3. Paul you asked if ‘I’ thought that Obama would go to THE(this) SEALs funeral and my answer was Yes, I do. Are you changing your question or is this a whole new one because you didn’t like my previous answer? Are you a Lawyer (‘sadist’) ?

                  2. “The New York Times reported that Obama’s national security aides had approved the plans for the risky attack and that Obama had not acted because the military wanted to launch that attack on a moonless night. The next such night would have been after his term.””

                    anon, don’t be deliberately obtuse. Obama did not launch the attack because the moonless night did not occur until after his term.

                    1. “Glad I don’t have a job defending the indefensible.”

                      Your resume is proving you’ve never successfully defended anything, let alone the indefensible.

                  3. anon,
                    If you cannot accept your own posted article in its entirety then you discredit your entire argument. I do not fault Obama for NOT moving forward on the mission and I do not fault Trump for moving forward. You would want us to believe Trump simply overruled his advisers and ordered the mission for political purposes. Using your logic, we should have seen Trump hotels come crashing down because he ignored his engineers just to get his name up in lights.

                    1. The Commander in Chief,Trump,is responsible. Glad I don’t have a job defending the indefensible.

                1. Tell that the Turley.This blog post is from the his column in the Hill or didn’t you read it?

          2. “Military officials” = anonymous sources = zero.

            The difference between Trump and Obama: Obama would have already imprisoned the reporter and left them to rot in prison till they disclosed their anonymous military source, who committed a felony military crime in talking to the press.

        2. If you call that a “disaster,” exactly how do you define post-Obama/HRC Libya. There were many weekends last fall when hundreds died fleeing terrorist controlled Libya, and two thousand attempting to flee in one weekend.

          And post-Obama’s Syria is a splendid success, yes?

    1. Good job misrepresenting the facts! What the President said was that if it becomes necessary to go nuclear, then he thinks MM should, but that he couldn’t tell him what to do. He merely expressed his opinion.

      Can’t you find any true things to whine about? FFS.

  15. The judge is going to take a terrible beating from the Democrats, so I wish him well. I will try to watch the hearings if I can stomach the nastiness of the Dems.

    1. It’ll be quite a blood bath — for them. He’s smarter, more photogenic and doesn’t have to declare on any position. That’s called a witness trifecta.

  16. Dreadful? By the time they get done kicking socialist ass there will be names left to take. Looks like the RINOs woke up to reality and rejoined the Repubic. I still want to see the nuke option but using the Senate Parlementarian was a kewl move and the results of that exlax treatment has left results all over the DNC ‘wash’ rooms. The swamps are overflowing!

  17. I am betting the game does not change for the Democrats. Republicans might settle down some, and take a shot of testosterone. But the Democrats are not bound by either the facts, or “reality.” There are no such arbitrary limits on their narratives.

    Was “Hands up! Don’t shoot!” true, in an objective sense? No. Did it matter to the Democrats? No. Was Trayvon Martine ever anything other than a thug who got shot while assaulting and battering Poor Old George Zimmerman, No. Did it matter to the Democrats? No. Is Trump a “Nazi”? No. Does it matter to the Democrats? No.

    Similarly, it isn’t going to matter who or what Gorsuch is. He will be trashed by the Democrats if it suits their purposes, and it probably will. He will be characterized as a racist, or misogynist, or extremist, xenophobe, crook, or Trump lackey, or whatever. There doesn’t have to be any truth to the charge. By and large, the Democratic Party Leadership are not honest and sincere people, They are merely power seekers. That’s all that matters.

    The only thing that could alter this dynamic is if sincere and honest Democrats, of which there are a few here and there. If those Democrats are loud enough so that it attracts the attentions of the few decent members of the Main Stream Press, then they may moderate the attacks to some degree. But other than that, it’s Bork Time!

    IMHO.

    Squeeky Fromm
    Girl Reporter

  18. Yes he is a jurist with impecable credentials, however, his views that multiple prior decisions of the Court were and are defective because they are progressive in nature, rather than how the Founders might have ruled several centuries ago is to say that said Associate Justice is wiser individually than those collectively before him, is to say that there is only one correct view and one correct answer to matters of Constitutional law.

    With that position, I respectfully dissent.

  20. With all due respect, you had similar praise when Ms. Conway was signed on to join their team. “Alternative facts” are not “impressive”.

    1. Still but hurt after losing three months ago? Wow, get therapy.

      BTW, KC used your forbidden term in reply to Progressives boasting fewer persons witnessed Trump’s inauguration than Obama’s. You apparently missed JT’s blog comprising evidence that KC and Trump were correct when you include all persons viewing a display of any kind.

      I’m sure still to this day you deny Bill Clinton “lied” even though he pleaded guilty to felony perjury. And remember, “If you like your doctor, you can keep your doctor…If you like your insurance, you can keep your insurance.”

      Millions of people post-ACA work three part time jobs because employers stopped full time positions because the ACA forces them to provide health benefits.

      1. It’s awfully presumptuous of you to assume that just because I criticized the KC “recommendation” by this blog that I am a supporter of Clinton or Obama/ACA. I’m not. Maybe you should look up the break-down of why it’s bad to “assume”.I am not “hurt” from the election; I’d be very disappointed with a Clinton presidency as well. I do, however, appreciate credibility and transparency in my elected officials, regardless if I vote for them or not. KC certainly does not promote credibility. If you can’t see that even as a Trump supporter, that kool-aid must taste good. Either way, it’s good to know that there are people of all perspectives on this blog, as it is not an echo-chamber. Peace.

        1. Also, if you think that people *just now* started working more than one job post-ACA, you must’ve been born after 2008. Which is good that young people such as yourself are interested in the law. You’ve come to a great blog to learn from.

Comments are closed.