Is Neil Gorsuch Anti-Duck?

Neil_Gorsuch_February_2017Rubber_duckies_So_many_ducksJudge Neil Gorsuch is scheduled to complete the long and grueling questioning of his confirmation hearing today. Indeed, he may finish a bit early.  Like past nominees, Gorsuch declined to discuss cases and said little about his positions on possible cases dealing with subjects like abortion.  Nominees are trained to hit grounders in these hearing and avoid pitches in the corners or trying to put anything over the wall.  He stayed with that strategy and the Democrats have made little progress in undermining his stellar record.  I have two columns out today at USA Today and The Hill newspaper discussing different aspects of the nomination.  I am scheduled to testify at the hearing on Thursday when they call expert witnesses.  There remains one disturbing question, however, that needs to be addressed:  is Judge Gorsuch anti-duck?

  Thus far, the only disappointing moment came when Judge Gorsuch failed to answer what may have been the most important question asked during the hearings, a question posed by the high school son of Arizona Sen. Jeff Flake whether Gorsuch would rather fight 100 duck-sized horses or one horse-sized duck during his confirmation hearing.

Judge Gorsuch failed or declined to give an answer, leaving Senators with the difficult decision of what to do in light of the failure to give his position on the key question.  This is not a question barred by the “Ginsburg Rule” since no horse or duck or duck-sized horse is in a pending case before the Judge.  It has raised the question of what Gorsuch is hiding and whether he is biased in favor of horses as a Colorado judge and well-known Broncos fan.  Duck organizations have raised the alarm over his possibly being “in the saddle” for big horse interests.  Whether we have a nominee who is pro-horse is perhaps left chilling then the question of whether he is so anti-duck that he was speechless when confronted by Flake.  Gorsuch’s well-known love for fishing adds to the concern.  Ducks can interfere with fishermen and Gorsuch’s ducking the duck question could raise an issue of a lack of judicial impartiality.

For the ADA (the American Duck Association), the concern is heightened by the fact that he is replacing a man who would often hunt ducks and eat them.  They are therefore crying fowl at the notion that Judge Gorsuch could not or would not answer this penetrating question.

The answer by the way is clear:  you fight the 100 duck-sized horses.  Now before I hear the neighing from horse apologists.  The weight of a horse can reach 2,200 pounds and the height can be as much as six feet.  In comparison the weight of a duck is three pounds and less than a foot in height.  Of course the weight of a duck has been a long-standing debate, including in quasi-judicial proceedings:

Putting that debate aside, facing a 2,200 pound, six-foot duck is a daunting prospect.  Extrapolating the increased dimensions on height, the beak of the duck alone would present a menacing weapon of three foot bone covered by a hardened layer of epidermis known as the rhamphotheca.  No rational (or unbiased) person would face such a menacing mallard over a bunch of 8-inch horses.  A two-ton duck could deliver a death-dealing blow in a single attack (putting aside the possibility of retaining the ability of flight at its immense size).  The only existential threat of being trampled to death by tiny horses would be to the most passive victim.

That returns us to the troubling question of what the nominee is hiding and whether ducks can expect a fair shake from a Justice Gorsuch.

175 thoughts on “Is Neil Gorsuch Anti-Duck?”

  1. @Paul Schulte, March 24, 2017 at 8:47 pm

    “Ken Rogers – I would posit that the concept of being owned depends on whose ox is being gored.”

    OK, so you posit that. And?

  2. @Paul Schulte, March 24, 2017 at 7:35 pm

    “Ken Rogers – just to get this straight, any time the SC splits 5-4, the losing side is ‘owned’ by the winning side?”

    If you’ll read my comment at 10:01 am today, you’ll see what I meant about Gorsuch’s having been owned by the other two judges on the panel hearing TransAm Trucking, Inc. v. Administrative Review Board,

    1. Ken Rogers – I would posit that the concept of being owned depends on whose ox is being gored.

  3. @Steve Groen, March 24, 2017 at 3:32 pm
    Thanks for posting that, Steve. His open hostility, as witnessed by the interviewed attorney for the trucker, is additional evidence that far from being a neutral arbiter of the law, Gorsuch is a passionate ideologue whose emotional response to the case in question engendered an illogical dissent on his part, about which he was “owned” by the other two judges on the panel.

    The Alliance for Justice review of his record alone makes it clear to me that Gorsuch is a reactionary authoritarian who would do great social harm were he to be confirmed to the Supreme Court

    1. Ken Rogers – just to get this straight, any time the SC splits 5-4, the losing side is ‘owned’ by the winning side? My understanding is that the justices are allowed offer up their own dissents or sign off of a minority dissent, just like the majority. Would someone who has clerked at the SC tell us if they keep score?

      1. Each justice has a franchise to file his own concurring or dissenting opinion.

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