THE SENATE SHOULD CONFIRM JUDGE NEIL M. GORSUCH

Below is my latest column in USA Today on the nomination of Judge Neil M. Gorsuch to the United States Supreme Court.  I testified last week on the nomination before the Senate Judiciary hearing.  I was particularly pleased that one of the other witnesses that day was a GW graduate: Karen Harned (Executive Director, National Federation of Independent Business Small Business Legal Center. Karen has quickly become a leader in Washington on legal and policy matters impacting businesses.  Since the hearing (and publication of this column), the Democrats have indicated that they are preparing for a filibuster.  (My colleague Dick Pierce has an interesting column opposing such a move).

 

As I stated at the hearing, I disagree with some of Judge Gorsuch’s opinions but I believe that he is eminently qualified for the Supreme Court. I am particularly disturbed by some of the attacks on his writings on major issues of our time.  While many lawyers in Washington pathologically avoid any statements or writings on controversial subjects in the hope for government appointments, Gorsuch actively participated in the national debate and contributed interesting perspectives on those questions.  He refused to remain a pure pedestrian as others debated issues like euthanasia.  He should not be penalized for doing so.  One can disagree with his perspective but his analysis is uniformly probative and at times profound.

If there is one thing that should be clear from the confirmation hearings of Judge Neil Gorsuch, it is that he is no Antonin Scalia. And that is a good thing.

Many of us had great respect for Scalia, who was a judicial icon on the court. Yet we do not need a jurist who tries to be a knockoff or facsimile of Scalia. We need someone who is comfortable in his own intellectual skin. The priority should be not to replace a conservative with a conservative but an intellectual with an intellectual. Gorsuch is precisely that type of nominee.

I have long been critical of the preference shown nominees who lack any substantive writings or opinions on the major legal issues of our time. This has led to what I have referred to as the era of “blind date nominees,” candidates with essentially empty portfolios when it comes to any provocative or even interesting thoughts. Such individuals make for good nominees but not great justices.

Gorsuch is a refreshing departure from that trend. He has eagerly and substantively participated in the national debate over some of our most sensitive issues.

Every president and senator has expressed a commitment to placing the best and the brightest on the court, though few seem to agree on the qualitative measures for such nominees. Historically, the record is not encouraging. The actual members of the court have ranged from towering figures to virtual non-entities. To put it bluntly, we have had far more misses than hits among appointees to the court.

To be one of nine, a nominee should be an intellectual leader who has shown both a depth and scope of knowledge of the law and its history. Quite frankly, few nominees have been particularly distinguished on this basis. The low moment came with President Nixon’s nomination of Judge G. Harrold Carswell, who was criticized as the “dull graduate of the third best law school in the state of Georgia” and lacked any scholarly articles or significant decisions. Sen. Roman Hruska famously rose to his defense with the declaration that “even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?” The answer is, of course, no. The highest court is a place for those who have earned the honor of confirmation through a lifetime of demonstrated and exceptional intellectual achievement.

Gorsuch is the gold standard for a nominee. He is widely respected for his writings on legal theory and history, which include refreshingly provocative ideas on the structure of government, morality in the law and interpretive theory. This is, in other words, a full portfolio of work at the very highest level of analysis.

Confirmation hearings often take on an almost mystical character as members and experts hold forth on what type of justice a nominee will prove to be over the course of a long tenure on the court. It is an exercise that not only defies logic but also can border on the occult. If history is any judge, even the nominee cannot say for certain where his tenure on the court will take him.

These hearings always remind me of an often told, but perhaps apocryphal, story of Justice Oliver Wendell Holmes, who was traveling by train to Washington. When the conductor asked for his ticket, Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket, Mr. Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is … where am I going?”

Most nominees are in a position not unlike that of Holmes. People of good faith can evolve on the court and even change dramatically in their new role. I do not expect such a transformation in Gorsuch, who has deep and well-established jurisprudential views. However, I expect he will go wherever his conscience takes him regardless of whether it proves a track to the left or the right. That might make the final terminus uncertain, but it will be an exciting trip to watch.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.

176 thoughts on “THE SENATE SHOULD CONFIRM JUDGE NEIL M. GORSUCH”

  1. @Steve Groen, March 31, 2017 at 1:46 pm

    To follow up on the question of politicians’ accountability to the electorate, and your repeated calls for street demonstrations, in this interview of Ralph Nader on “Democracy Now,” he discusses the much more effective tactic of confronting the pols in town meetings, rather than dissipating energy at rallies or marches. If you don’t want to watch the whole interview, which I heartily recommend doing, his town hall meeting remarks begin at 6:10 in the video:

  2. @Steve Groen, March 31, 2017 at 1:46 pm

    “‘Bill Nelson is usually a centrist on issues like this, but he may be influenced by talk of his having a primary opponent,’ said state Sen. Randolph Bracy, who’s considering a primary challenge of the senator.”

    “Uh oh. Democrat Bill Nelson might be worried about getting himself re-elected. That certainly should override the constitutional mandate of advice and reasoning whether to provide consent. That’s certainly an inconvenience for long-time politicians who don’t rent in Washington.”

    Since when shouldn’t the electorate have a voice in the behavior of those they elect? Would you give all elected officials, once elected, life-time tenure, like Supreme Court Justices? How much unremovable and therefore unaccountable ruling class do you think is required to “let the government function”?

    “Insofar as a filibuster’s having ‘very little, if any, chance of succeeding’ is concerned,” if the Republicans change Senate Rules to take away the filibuster as they’ve claimed they will do, the proposed filibuster will be unsuccessful and Gorsuch confirmed anyway.”

    Maybe the Republicans will change the rules and maybe they won’t, knowing as they do that what rule changes go around, come around, and that they won’t always be in the majority. But to cave without a fight in the face of a threat, which may be a bluff, is to abdicate one’s responsibility to do everything in one’s power to block the life-time appointment of this unabashed corporatist to the extremely powerful US Supreme Court, giving five corporatists a decades-long majority to make the country even safer for Monsanto and Goldman Sachs.

    1. Ken: “Since when shouldn’t the electorate have a voice in the behavior of those they elect? Would you give all elected officials, once elected, life-time tenure, like Supreme Court Justices? How much unremovable and therefore unaccountable ruling class do you think is required to ‘let the government function’?”

      Your first is an interesting question. In other words, when should the representative decide how to vote on any particular issue and when should he or she leave it to the constituents to decide instead? I think the answer is that it depends, but it shouldn’t depend on re-election as a factor. If we’re to have representative government, then it’s the representative who has to make the determination as to what factors to weigh more heavily than others, especially with regard to Senators’ duty to render a confirmation.

      As to your second question, it’s too rhetorical to consider.

      As to your third, you’re advocating an unaccountable ruling class filibuster an unaccountable ruling class. Those are the same folks that voted for a corrupted politician named Hillary Clinton. Even Sanders said she was unqualified at one of their debates and then said she’d make an outstanding president when he spoke at the convention. They’re all liars for political gain.

      Do you think hardcore social and fiscal conservatives liked the idea of confirming relative liberals Sonia Sotomayor (31 nays, after serving on the DC Circuit bench) and Elena Kagen (who never even served as a judge – 37 nays)? It’s the same old story:

      Mitch McConnell, one of the nays against Sotomayor: “Judge Sotomayor is certainly a fine person with an impressive story and a distinguished background. . . . But a judge must be able to check his or her personal or political agenda at the courtroom door and do justice evenhandedly, as the judicial oath requires. This is the most fundamental test. It is a test that Judge Sotomayor does not pass.”

      His nay against Kagen: ““I do not have confidence that if she were confirmed to a lifetime position on the Supreme Court she would suddenly constrain the ardent political advocacy that has marked much of her adult life. The American people expect a justice who will impartially apply the law, not one who will be a rubberstamp for the Obama administration or any other administration. For these reasons, I will oppose Ms. Kagan’s confirmation.””

      Did the Republicans filibuster Sotomayor or Kagen when they were in the minority? Isn’t your worry about the political activism of Gorsuch just like McConnell’s concern for activism of Sotomayor and Kagen? The bottom line is that if you’re not in the majority when it comes to confirming a Justice, you better have more dirt than judicial activism to stop it.

      And if you’re still hell-bent on avenging Garland’s rejection, Judiciary committee chairman, Charles Grassley, refused to take up the Garland nomination, and that’s something for which there’s currently no remedy. If Democrats would have maintained a majority in the Senate, this wouldn’t have happened, but that’s the way it goes in a two-party system. Blame the Democrats for losing its majority by disillusioning the Left and continuing on with Schumer and Pelosi as their leaders.

    2. From today’s NYT:

      Republicans have not forgotten.

      “I say to my friends on the other side of the aisle, you’ll regret this,” Mr. McConnell predicted at the time. “And you may regret it a lot sooner than you think.”

      The Senate Democratic leader, Chuck Schumer of New York, has indeed said he regrets his party’s choice then [Schumer talking out of both sides of his mouth because he voted to prevent filibuster of appellate nominees), when Senator Harry Reid of Nevada was the Democrats’ leader. . . .

      https://www.nytimes.com/2017/03/31/us/politics/supreme-court-neil-gorsuch-senate.html?rref=collection%2Ftimestopic%2FU.S.%20Supreme%20Court&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection

      Someone should check to see whether Schumer sided with Reid to prohibit filibuster of appellate nominees in 2013. Only three Democrats voted against the measure (and Schumer wasn’t one of them):

      http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html

      And yesterday, Senators. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota became the first Democrats to announce their support for Gorsuch.

      Suck it up and deal with it.

  3. “Gorsuch Hearings: Airless. Insular. Clubby. Smug.

    “How the grossness of the Gorsuch hearings made the Supreme Court nominee vulnerable to organized resistance.

    The grotesque display of hypocrisy and falsity in Senate Republicans pretending they had been courteous and respectful toward Garland cast an early shadow over the hearings. That same hypocrisy pervades assertions like the one offered by Senate Majority Leader Mitch McConnel last week: ‘If they don’t find Gorsuch acceptable, are they taking the position the vacancy should never be filled? At all?’ Oh, senator. Seriously? Remember Ted Cruz and Richard Burr promising to keep the seat open for four years, way back before the election? You can start to declaim on double standards again, well, never. And the performance of daily wounded outrage that the nominee was suffering grievous personal insult at the hands of Democratic interlocutors and tormentors? See ‘Seriously?’ above.

    “Add to the mix the strange performance of the nominee himself, who came into the hearings with a media and public willing to give him the benefit of the doubt and left us with the impression that he was a good deal more prickly than he needed to be, and a good deal more coached and canned than he wanted to be. A man with a substantial and creditable judicial record walked away from the hearing room having led many of us watching with a greater appreciation of the authenticity and likability of John Roberts, who really was extraordinarily affable and warm throughout his hearings in 2005.

    “Partly it was the sense of great privilege and entitlement that was on display: the strange contrast of Gorsuch’s pride that his daughters were ‘double-black-diamond skiers’ and his seeming disregard for the plight of a frozen trucker. But all the hyper-civility and clubbiness—the demand that respect be mechanically afforded—rankled all the more because of the pervasive assumption that, as a federal appellate judge with impeccable credentials, Gorsuch was entitled to be treated like a war hero.

    “The presumption echoed the ways in which former Sen. Jeff Sessions demanded magical Senate deference and how Sen. Elizabeth Warren was put in the naughty chair for refusing to honor him. Deference and civility are earned by government, not demanded. There was, eventually, something powerfully malignant in the proposition that having blown up every last norm of decency and fair play in the U.S. Senate, this last remaining norm—of unquestioning reverent respect—was the only one that truly matters. [Emphasis added]

    “The final piece of the privilege puzzle that snapped into place after the Gorsuch hearings still feels somewhat inchoate. Senate Democrats attempted to tie Judge Gorsuch to a long progressive narrative of being callous and mechanistic ___ specifically, to claims that he didn’t see it as his responsibility to look out for the ‘little guy.’ This line of attack led to some interesting exchanges, including one with Rhode Island Sen. Sheldon Whitehouse about the trend of the Roberts Court to privilege corporate interests and dark money over democratic processes [and individual , rather than corporate rights]. Minnesota Sen. Al Franken similarly grazed Gorsuch with claims that the judge had failed to protect vulnerable plaintiffs—including the aforementioned trucker, who was fired for refusing to freeze to death in his broken vehicle, as well as an autistic student who received inadequate instruction and services from his public school.

    “In one sense, these attacks were ably parried by Gorsuch’s reply that these were just two cases among thousands, and that he had ruled for the “little guy” in myriad appeals brought by workers and prisoners and pro se defendants. In the larger sense, Gorsuch used his claims to judicial modesty and his deference to the political branches to argue that judges merely interpret the law, and Congress makes them. He repeated his mantra, in various formulations over multiple days, that judges are neutral and have no preconceived notions: ‘Putting on a robe reminds us that it’s time to lose our egos and open our minds. … Ours is a judiciary of honest black polyester.’ [I just threw up a little bit in the back of my mouth.]

    “It is this final claim that may not survive the smug self-certainty of last week’s Senate process. Through no fault of his own, news of the Gorsuch hearings was overshadowed last week both by claims of possible collusion between the Trump campaign and Russia, and by the defeat of Trump’s health care reform efforts. It wasn’t just that the twin stories dragged down Trump’s polling numbers, or that both served as reminders that Trump’s disregard for the rule of law is matched only by his cruelty toward the weakest and poorest.

    “It was that Gorsuch had the misfortune [fortunately for the American public] of facing confirmation as a gold-standard movement conservative at precisely the moment in which Trump himself was exuberantly slashing protections for the hungry, the uninsured, the working poor, public television and the environment, Meals on Wheels, students, and pregnant women.

    “To put it bluntly, just about every ‘little guy’ in America was being sucker-punched by government in some fashion last week at precisely the moment Gorsuch was repeatedly affirming that if someone is going to protect the little guy in America it needs to be Congress and the president, but most certainly not judges. I wouldn’t want to be the judge pledging at this moment in history that there is no room whatsoever for judges to step in as the entire social safety net is slashed. Call it humility or minimalism. It reads as Paul Ryan–grade granny-starving. [Emphasis added.]

    “Maybe it doesn’t matter. Maybe the judge’s fist bumps and athletic feats glossed over the fact that his judicial record shows that everything the Roberts Court has been systemically dismantling—from campaign finance reform to the Voting Rights Act to the contraception mandate of the Affordable Care Act to the federal laws that protect workers, unions, and handicapped kids—doesn’t actually matter.

    “And maybe it didn’t matter that amid all the backslapping, dignified privilege of a Senate hearing, the idea that judges are too lofty and oracular to weigh in on a government bent on dismantling state protections for the weakest sounded less in the key of neutral cerebral umpire than in the key of a careless ski instructor.” [My emphasis]

    “But it is clear that something was way off last week in the Senate, and only part of it had to do with the fact that Barack Obama’s nominee to the Supreme Court was not having a hearing and nobody—including Neil Gorsuch—could offer a coherent explanation as to why. What was off was that Senate Republicans tried to pretend that the judicial branch, alone among the American carnage of government institutions, is worthy of sonorous and unquestioning reverence. In trying to make that case, though, most of these same senators managed to seem even sillier, more hypocritical, and more out of touch with what’s really happening in America than they seemed before.”
    http://readersupportednews.org/opinion2/277-75/42767-focus-gorsuch-hearings-airless-insular-clubby-smug

  4. @Steve Groen, March 29, 2017 at 8:28 pm

    “Complain all you want about the Gorsuch appointment, but we have a foundational law that should be respected, and filibuster when you have very little, if any, chance of succeeding serves what purpose other than the perception that Democrats are shifting left when you and I both know damned well they’re bought and paid for?”

    Your defeatist suggestion here that unless and until all Democrats become crowd-funded paragons of political rectitude, we should support the machinations and agenda of the Republican and (and other Democrat) corporatists and fascists, is, to put it charitably, not credible.

    I’m sorry to have to say it, but your continuing to value long-game rhetoric over direct action to prevent a socio-political travesty in the here-and-now tends to explain why you were taken in by Obama’s rhetoric, such that you voted for the hopey-changey charlatan, not just once, but twice.

    Insofar as a filibuster’s having “very little, if any, chance of succeeding” is concerned, see the two reports below:

    How Bill Nelson Shook Up the Gorsuch Nomination Fight

    “MIAMI — Supreme Court nominee Neil Gorsuch seemed to be on track for a full Senate vote when a key Democrat helped throw it in doubt: Bill Nelson of Florida.

    “Nelson’s position had been closely watched. As a Senate indicator species — he’s an institutional centrist with a history of allowing Supreme Court picks to get a full vote — his stance on Gorsuch stood to provide insight into the political calculus of other Trump-state Senate Democrats who, like him, will be up for reelection in 2018.

    “By announcing on Monday his intention to filibuster Gorsuch, Nelson raised questions about the judge’s path to 60 votes and revealed a shift in political fault lines in the confirmation fight. Faced with the prospect of a primary challenge in the event he didn’t filibuster and the likelihood of a tough general election campaign against GOP Gov. Rick Scott either way, Nelson chose to lock down his left flank.

    “ ‘Bill Nelson is usually a centrist on issues like this, but he may be influenced by talk of his having a primary opponent,’ said state Sen. Randolph Bracy, who’s considering a primary challenge of the senator.

    “Pam Keith, a 2016 U.S. Senate candidate also mulling a bid against Nelson, said in a text message exchange that ‘Nelson VERY much is feeling the pressure, as are many Dems in DC.’

    “ ‘Bottom-line is that the base is far more strident than they are,’ Keith continued, adding that rank-and-file Democrats have much to lose if their elected officials help Trump. ‘The grassroots could give a damn about “collegiality” or decorum in the halls of Congress. I think the leaders are learning that the appetite for outright obstruction is as high on our side as it ever was for the Tea Party.’ ”
    http://www.politico.com/story/2017/03/bill-nelson-neil-gorsuch-opposition-vote-236598

    See also, “Gorsuch needs a straight flush to beat filibuster”
    http://www.politico.com/story/2017/03/neil-gorsuch-supreme-court-236604

    1. “‘Bill Nelson is usually a centrist on issues like this, but he may be influenced by talk of his having a primary opponent,’ said state Sen. Randolph Bracy, who’s considering a primary challenge of the senator.”

      Uh oh. Democrat Bill Nelson might be worried about getting himself re-elected. That certainly should override the constitutional mandate of advice and reasoning whether to provide consent. That’s certainly an inconvenience for long-time politicians who don’t rent in Washington.

      “Insofar as a filibuster’s having ‘very little, if any, chance of succeeding’ is concerned,” if the Republicans change Senate Rules to take away the filibuster as they’ve claimed they will do, the proposed filibuster will be unsuccessful and Gorsuch confirmed anyway. For his part in this waste of time and money, Schumer may well succeed in getting himself re-elected too, but there will be no more filibuster on future controversial issues that a filibuster could significantly impact.

  5. @Steve Groen, March 29, 2017 at 12:56 pm
    “I’m a registered Green. I voted for Nader twice, was fooled twice by Obama, and returned to the Greens in February, 2015. I suspect you voted for Hillary Clinton and hope you’ll think twice about voting for an Establishment candidate in the future. Instead, we need a third-party to dilute the Establishment.

    “Attempts at character assassination is a juvenile answer to how the “new originalism” you brought to my attention differs from the textual liberalism of the Warren Court. They’re both politically-engendered.”

    As you’ve shared some of your political background, I’ll reciprocate. I’m not currently affiliated with any political party, was a co-founder of a state Green Party, was one of Nader’s paid state campaign managers in 2000, and would not in a thousand years vote for a corporate welfare queen and warmonger such as Hillary Clinton. I’m a libertarian Christian who sees individuals of all nations as unique manifestations of God, and am therefore intolerant of authoritarianism and collectivism in all its guises, as both are inimical to human liberty and freedom of conscience, when not inimical to life itself in a physical body.

    I wasn’t attempting to answer your question as to the relative merit of legal originalism, I was addressing your reasoning in defense of your opposition to filibustering the nomination of Neil Gorsuch. My accurately calling attention to the similarity of your and Bobby Knight’s thinking is hardly character assassination, unless you’re personally identifying that thinking with your character, in which event that’s on you, not me.

    Before I do answer your question regarding originalist interpretation of the Constitution, please read closely this essay, in its entirety, by law professor emerita Marjorie Cohn, excerpted below, as doing so should facilitate our own discussion of the subject:

    Originalism Would Lead to Disturbing Results

    “Harvard law professor Cass Sunstein, who calls originalism ‘the Time Machine approach to constitutional interpretation,’ maintains that the doctrine could lead to the following:

    “States could ban the purchase and sale of birth control. The federal government could engage in racial discrimination, by excluding African Americans from serving in the military or by mandating racial segregation in schools. The federal government could discriminate against women, by preventing them from occupying high-level governmental positions. States could bring back segregation. State and federal governments could eschew the doctrine of one-person, one vote. States could establish Christianity as their official religion. And the federal government could invalidate environmental laws, including the Clean Water Act and the Endangered Species Act.

    “UC Irvine School of Law Dean Erwin Chemerinsky concurs. Writing recently in the Los Angeles Daily News, he noted that if a majority of the justices accepted originalism, many now-established rights would disappear: The Bill of Rights would no longer apply to state and local governments; the rights to travel, privacy and freedom of association — which are not mentioned in the text of the Constitution — would no longer be protected; and there would be no more protection of the rights to marry, procreate, purchase and use contraceptives, obtain abortions, refuse medical care, and engage in private consensual homosexual activity.

    “Indeed, when the high court found a constitutional right to marriage equality, over Scalia’s objection, in Obergefell v. Hodges, the majority ‘expressly rejected originalism and embraced the idea of a living Constitution whose meaning evolves by interpretation,’ Chemerinsky observed in the National Law Journal.

    ” ‘Justice Scalia professes that he follows the original meaning of the Constitution, but his are the views of the 2008 Republican platform, not of the Constitution’s framers,’ Chemerinsky wrote in his 2010 book, The Conservative Assault on the Constitution.

    ” ‘The bottom line is the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017,’ according to Sunstein. ‘Whether we’re speaking of campaign-finance laws, commercial advertising, gun rights, affirmative action, gay rights, property rights or abortion, originalism has failed to prevent judges from voting in accordance with their political predilections.’

    “Sunstein explains that in these contexts, judges who characterize themselves as ‘originalists’ have nevertheless made decisions that reflect their regressive political positions. ‘Too often, today’s originalists read the Constitution to fit with the latest Republican Party platform, while solemnly proclaiming their reverence for the founding period and their own political neutrality,’ Sunstein wrote on Bloomberg.com. ‘That’s shameful — and it’s a sham.’

    Gorsuch’s Originalist Views Would Further a Right-Wing Agenda

    “Gorsuch has ruled against protections for people with disabilities, expressed disapproval of LGBTQ people’s equal rights, found that corporations are ‘persons’ that can claim religious rights, favored big corporations over workers, and lined up with polluters against agencies charged with protecting clean air and water. Based on his previous rulings and writings, he would likely conclude that the Constitution does not protect the right to abortion.

    “In 2005 to 2006, while serving as principal deputy associate attorney general in the Bush Department of Justice, Gorsuch argued against Guantánamo detainees who sought to bring habeas corpus petitions to challenge their detention, opposed the Detainee Treatment Act’s prohibition of cruel treatment, argued that ‘enhanced interrogation’ (a euphemism for torture) works, and defended Bush’s warrantless surveillance program. Sen. Patrick Leahy (D-Vermont) said Gorsuch ‘appear[ed] to be a cheerleader for President Bush’s views on executive powers.’

    “After visiting Guantánamo, where guards were violently force-feeding prisoners, Gorsuch wrote to the prison operation commander, ‘I was extraordinarily impressed. You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.’

    “Gorsuch, who handled all ‘terror litigation’ in his Justice Department office, would likely be receptive to upholding Donald Trump’s Muslim Ban when the issue of its legality inevitably reaches the Supreme Court. Jennifer Daskal, Just Security’s founding editor, predicted, ‘He could end up being the decisive vote in a range of future cases that involve executive branch policies that push at, or cross, the line of legality — defended based on expansive claims of unreviewable executive authority in the arena of national security.’

    “Americans should be ‘deeply concerned that [Gorsuch] won’t be a meaningful check on Donald’s Trump’s illegal and unconstitutional agenda,’ said Marge Baker, executive vice president of People for the American Way.

    “If confirmed to the Supreme Court, we can expect Gorsuch to use his originalist theory to uphold a dangerous right-wing agenda.”
    http://www.truth-out.org/news/item/39922-gorsuch-would-use-originalism-to-affirm-right-wing-agenda

    1. Ken Rogers: I’m happy to hear you’re a Green! Kudos.

      As for your argument and the argument of every liberal attorney in the Western Hemsiphere that Gorsuch is the worst thing since Genghis Khan, I agree with you! Sheesh.

      Social conservatives have had to sit through decades of implied rights having been found by liberal judges since the Warren Court years that to this day do not sit well with them. For instance, where do you see Miranda rights or reverse absorption of 14th Amendment equal protection into Due Process Clause of the Fifth Amendment or regulation of what race gets to eat at somebody’s private diner in the Commerce Clause? The Constitution is just as plausibly read as not having implied rights other than those in the Ninth Amendment (whatever they may be), and that’s where Gorsuch’s head is at. So was Scalia’s, and so is Alito’s and Thomas’s.

      Complain all you want about the Gorsuch appointment, but we have a foundational law that should be respected, and filibuster when you have very little, if any, chance of succeeding serves what purpose other than the perception that Democrats are shifting left when you and I both know damned well they’re bought and paid for? Sure, the conservative Justices are unpalatable looking at it from the Left, but harden up and play by the rules. It’ll make matters worse by filibustering when the Democrats have sent their message by wholly rejecting the nomination.

      The Democrats lost this starting with Bill Clinton’s neoliberalism, putting on Bush Lite for eight years of no hope and no change, and then anointing as its nominee a corrupted politician from a corrupted party that couldn’t beat a buffoon. Thank them for what’s in store for us.

      It’s got to get worse before it gets any better, and Trump will likely get us there. The hundreds of thousands across the globe that have been killed, maimed or left homeless over the past 16 years, solely for an economy that now sees half of the US unable to pay for a $500.00 emergency expense and the wealthy exponentially wealthier, deserve change just as much as you and I do.

  6. @Steve Groen, March 29, 2017 at 10:27 am

    That’s interesting reasoning, Steve. I’ve heard a very similar “argument” once before, when the basketball coach and political philosopher Bobby Knight observed, “I think that if rape is inevitable, relax and enjoy it.”

    This coach and political theorist also supports Trump, though not as passively as you do:

    “While speaking to an Evansville, Indiana crowd, Knight defended Trump against claims that the candidate was not presidential enough, comparing him to Harry Truman, who Knight said was accused of the same thing.

    “ ‘They told him that he wasn’t presidential, and Harry Truman, with what he did in dropping and having the guts to drop the bomb in 1944, saved, saved billions of American lives,’ Knight said. ‘That’s what Harry Truman did and he became one of the three great presidents of the United States. And here’s a man who would do the same thing because he’s going to become one of the four great presidents of the United States.’ ”
    http://abcnews.go.com/Politics/donald-trump-bobby-knight-team-campaign-trail/story?id=38745670

    1. I’m a registered Green. I voted for Nader twice, was fooled twice by Obama, and returned to the Greens in February, 2015. I suspect you voted for Hillary Clinton and hope you’ll think twice about voting for an Establishment candidate in the future. Instead, we need a third-party to dilute the Establishment.

      Attempts at character assassination is a juvenile answer to how the “new originalism” you brought to my attention differs from the textual liberalism of the Warren Court. They’re both politically-engendered.

  7. @Steve Groen, March 28, 2017 at 6:03 pm
    “I’m not the only one who has reason to oppose a filibuster and at the same time oppose the nomination.”

    Will you be good enough to share your reasons for opposing a filibuster of Gorsuch?

    1. I already have been good enough to do so, Ken. The Constitution awards the President with the pleasure to nominate and the Senate with the right to advise and consent on every Supreme Court appointment. That’s as objectively textual as it gets. The Republican majority says yea and the Democratic minority (including Senator Sanders) says nay to a person.

      Let the government function. Stalling is showing their true colors, i.e., how attached the Democrats are to Republican political antics, which prevented Judge Garland’s confirmation. Yet, under the current circumstances, the Democrats realistically cannot prevent Senate consent. When will they ever learn?

      I applaud the Democrats who oppose the nomination but who support cloture on the Gorsuch nomination.

      1. Steve Groen – I am personally disappointed that you are not supporting Gorsuch. 🙂 It is so unlike you not to be open-minded.

  8. In view of Neil Gorsuch’s description of himself as an ‘originalist’ in the mold of that “lion of the law” Antonin Scalia, it’s highly important to assess the legitimacy of that interpretive legal theory. In the following essay in Dissent Magazine, Professor Saul Cornell throughly deconstructs it:

    New Originalism: A Constitutional Scam
    Saul Cornell ▪ May 3, 2011

    AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public.

    Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans.

    Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

    At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons.

    Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

    ORIGINALIST CONSTITUTIONAL theory developed during the Reagan years as a critique of activist judges. Its theorists argued that a jurisprudence focused on the original intent of the Founders would serve as a means of limiting the discretion of judges. This theory proved controversial from the start and was subjected to a number of withering criticisms. One of the many problems with the theory stemmed from its shaky historical foundations.

    Simply put, the Founders did not speak with a single voice on most constitutional questions. Thus, traditional originalism collapsed as evidence accumulated that the Founding generation disagreed on most of the major constitutional issues they confronted. If Madison and Hamilton could not agree on how to interpret the Constitution, how could modern judges claim to have found an objective means to discern the true meaning of its text? [My emphasis]

    “New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics. In contrast to traditional originalism, new originalism emerged at a time when the Supreme Court was dominated by a conservative majority, as it is today.

    The goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives. (A few liberals have embraced a version of this theory, hoping to use it to revive and expand aspects of the Fourteenth Amendment, but this is a small minority within the originalist movement.)

    For right-wing scholars and judges, new originalism serves as a type of constitutional camouflage. It allows “conservatives” to create their own living constitution and advance a form of judicial activism, while claiming to be simply engaged in an act of constitutional redemption. [Emphasis added]

    New originalism eschews a focus on original intent and instead concentrates on the public meaning of the Constitution. Yet, if one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.

    New originalists are dismissive of history. They argue that original meaning, as they construe it, is simply different from historical meaning. If this claim were true, then historians would have no special expertise when it comes to understanding the original meaning of the Constitution. This view is utter nonsense. Different historical methods can certainly yield different answers to the question of what the Constitution meant.

    Social historians might give preference to what ordinary Americans thought the Constitution meant, while legal or constitutional historians might lay greater stress on the opinions of legal and judicial elites. It might well be the case that there was no consensus in the Founding era on what a specific provision of the Constitution meant. What is clearly false is the new originalist claim that original meaning is not subject to the rules of verification that apply to all historical works.

    New originalists are especially fond of Justice Scalia’s majority opinion in District of Columbia v. Heller, the controversial case that stuck down Washington’s handgun ban. John McGinnis and Michael Rappaport, law professors who are proponents of new originalism, applaud Scalia for applying the Founding era’s original methods to the problem of the Second Amendment.

    In Heller, Scalia cast aside the preamble of the Second Amendment, which declares that the purpose of the amendment is to protect a well-regulated militia. According to Scalia, the Founders believed that preambles should only be used to clarify an ambiguity in the text.

    This approach was so odd that Justice Stevens’ dissent chided Scalia for interpreting the latter part of the Second Amendment first, and considering the preamble second—in essence reading the text backward. The sources Scalia cites for this bizarre approach turn out to have no connection to the Founding era at all. Scalia cited two legal treatises written in the nineteenth century and a single early-eighteenth-century English case that had come into disrepute by the time the Second Amendment was written.

    The reason for Scalia’s neglect of Founding-era sources is obvious if one actually reads sources from the period, which support Stevens’, not Scalia’s, reading. Take, for example, the views of then–Chief Justice John Jay, one of the coauthors of the Federalist, who opined in a 1790s decision that “a preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.”

    Jay’s method, the orthodox approach favored by judges and lawyers in the Founding era, flatly contradicts Scalia’s view of preambles. (It also contradicts the new originalist claims about intent.)

    John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.)

    For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes.

    Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans.

    Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

    Yoo’s theory is idiotic in the eighteenth-century sense of the word: it treats ordinary Americans as if they had no public voice—in other words, as idiots. Ignoring the real voices of eighteenth-century Americans is an important part of new originalism’s methodological obfuscation. Yoo and other new originalists suggest instead that we interpret the Constitution from the point of view of an “informed, objective reader in 1787-1788.”

    Gary Lawson, another prominent conservative new originalist, calls this fictive reader “a fully informed reader,” while Georgetown’s Randy Barnett, one of the most vocal public intellectuals in the new originalist movement, dubs his fictive reader “a typical rational man on the street.”

    Using fictive readers in place of actual historical ones effectively turns constitutional interpretation into an act of historical ventriloquism. The fictive readers imagined by new originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document—a strange coincidence indeed![My emphasis]

    Even more remarkable is the claim made by some new originalists that we should not give any special weight to what people at the time actually said because, unlike new originalists, Madison, Jay, Hamilton, or any other actual person from that period would have had political motives.

    In their constitutional fantasy world, historical evidence cannot be used to impeach originalist claims because it would involve claims about actual practices by historical actors who were often blinded by their biases. By contrast, new originalists believe they have transcended their own political interests and created a methodology that reveals the objective meaning of the Constitution. Having cast the vast majority of Americans as idiots, and discounted the views of elites for their political biases, one might wonder what is left to the concept of original meaning. The answer is new originalist meaning ultimately has nothing to do with history: it is a modern ideology dressed up in historical clothing.

    IN ORDER to determine original constitutional meaning, some new originalists have turned to philosophy. Lawrence Solum, a law professor and popular law blogger, argues that modern ordinary language philosophy provides a means of discerning the objective meaning of the Constitution’s text. Reading Solum’s originalist theory, one might be tempted to conclude that philosophers of language had reached a clear consensus on issues of meaning, but the reality is that philosophers remain deeply divided over these questions.

    Even if philosophical consensus existed, one would still need to develop some type of historical methodology to apply one’s philosophical theory to the past. Rather than take the time to do the history right, Solum and other new originalists prefer history-lite, endorsing a method favored by Justice Scalia, who advises that we consult old dictionaries to ascertain the original meaning of the Constitution.

    One problem with this approach is that the earliest American dictionaries were written after the Constitution and were not produced according to the rules of modern lexicography. More often than not these texts were prescriptive, not descriptive. They were idiosyncratic products of their authors, who often had ideological, political, and linguistic agendas. Thus it is simply anachronistic to argue that one ought to consult historical dictionaries from the Founding era to elucidate a set of fixed linguistic facts that can be used to unravel the meaning of the text of the Constitution.

    One wonders if any theory drawn from modern ordinary language philosophy could yield an objective theory of constitutional interpretation given that the Founders were themselves deeply divided over the nature of constitutional interpretation. Indeed, one of the most basic divisions within the Founding generation was between those who believed that the Constitution had to be interpreted according to the rules of ordinary language and those who believed that the Constitution ought to be interpreted according to a formal set of rules gleaned from Anglo-American jurists such as Sir William Blackstone.

    Even if one decided which version of ordinary language philosophy to use, and one perfected a historical method to implement this approach, the result would not be objectivity; what one would have done is simply taken sides in one of the Founding era’s most basic disputes. Philosophy cannot replace history and cannot erase the fact that any theory of constitutional interpretation begins with a political choice about interpretive method.

    THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago.

    Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.

    Indeed, in Heller, Justice Scalia used an Anti-Federalist text written by the “Dissent of the Pennsylvania Minority” as one of the keys to unlocking the meaning of the Second Amendment. His methodology makes it easy for him to take a text articulating the beliefs of the dissent of the minority of a single state ratification convention and transform it into a proxy for public meaning.

    In the wacky world of new originalism, dissent becomes assent, minorities become majorities, and the interpretive method of the Anti-Federalist losers supplants the methods of the Federalist winners. Such creative rewriting of the past makes for interesting alternate histories, but it is not a serious scholarly methodology for understanding the historical meaning of the Constitution. It is a legal scam. [Emphasis added]

    The periodic revival of Anti-Federalist constitutional ideas is in some sense hardwired into the structure of American constitutionalism. While such a process has often been self-conscious, at other times Americans have unknowingly reinvented an essentially Anti-Federalist critique of the Constitution.

    Given the expansion of federal power in modern America, particularly of executive and judicial authority, a revival of Anti-Federalist criticism seems inevitable. In this sense, new originalism is unremarkable; it is simply the latest in a long line of dissenting movements to revive an Anti-Federalist critique of the Constitution. What is a bit embarrassing is that its authors do not seem to be aware of the Anti-Federalist origins of their theory.

    There is one significant difference between new originalism and the original Anti-Federalist focus on public meaning. The Anti-Federalists were motivated by a desire to reduce the power of lawyers and judges. Ultimately their goal was to allow the people to have a larger say in interpreting the Constitution.

    Public meaning was a form of popular constitutionalism designed to limit federal judicial review, not empower it. As originally understood, this theory was not designed to freeze the meaning of the Constitution at the Founding moment, but actually was closer in spirit to modern theories of a living constitution. The supreme irony of new originalism is that, if one follows the original version of this theory, it leads to something like the modern theory of the living constitution—the antithesis of new originalism.

    Justice Scalia may believe we have a dead Constitution, the legal equivalent of a fly in amber. This was not how most Americans in the Founding era would have viewed the matter. Originalists, both old and new, argue that the theory of the living constitution lacks the legitimacy of their own theory.

    In fact, the historical pedigree of the theory of the living constitution is it least as good as traditional originalism, and far better than that of new originalism. The fact that Americans are deeply divided today over the relative merits of originalism and the rival theory of the living constitution ought to come as no surprise—Americans were divided over the very same issue when the Constitution was first proposed more than two hundred years ago.

    1. “For right-wing scholars and judges, new originalism [my emphasis] serves as a type of constitutional camouflage. It allows “conservatives” to create their own living constitution and advance a form of judicial activism, while claiming to be simply engaged in an act of constitutional redemption.” I like this characterization, and from reading Endrew F v. Douglas County, I think that’s what Gorsuch did. He wasn’t following precedent – he was undercutting it (lying) and making his own precedent. Clearly, it involves intellectual dishonesty.

      On the other hand, how can be one be intellectually honest and construe Justice Douglas’s emanation of a “penumbra” of rights leading to a procreative right of privacy without viewing it in the same light as the “old originalism,” or perhaps more aptly constitutional liberalism?

      Enquiring minds . . .

  9. “WASHINGTON (AP) — A showdown over President Donald Trump’s Supreme Court nominee and Senate’s rules loomed as the number of Democrats opposing Judge Neil Gorsuch grew to more than 20 on Tuesday.

    “Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat, Michigan’s two lawmakers, Sens. Debbie Stabenow and Gary Peters, and Maryland’s Chris Van Hollen announced that they would vote against Gorsuch. Republicans, who hold the majority in the Senate, are intent on getting Trump’s choice confirmed before Congress’ two-week break in mid-April.

    ” ‘Judge Gorsuch’s hearing reinforced my fear that he would favor corporations and special interest elites at the expense of American workers and families,’ Durbin, a member of the Judiciary Committee, said of the four-day confirmation hearing last week. He announced his opposition on the Senate floor.”
    https://www.yahoo.com/news/senate-dems-opposing-trump-court-pick-grows-stabenow-153610976–politics.html

  10. @Steve Groen, March 28, 2017 at 10:32 am

    “[T]hese people,” as you say, are not ‘out to destroy the government.’ They’re out to managing it in a way that differs from the way you and I would manage it because they have a different political perspective. That’s it.”

    I ran across last night this essay by Matt Taibbi which describes in florid detail the Trump-Bannon corporate agenda of “deconstructing the administrative state.” To characterize it as you do as reflecting merely a “different political perspective” suggests a serious misapprehension of that corporate agenda’s radicalism. One needn’t agree with everything Taibbi says here (I certainly don’t) to appreciate his main point regarding how dramatically it favors corporations over people:

    “Trump the Destroyer
    “Trump Has Stuffed His Cabinet with Tyrants, Zealots and Imbeciles—All Bent on Demolishing Our Government from Within”

    “Some appointees were less terrifying than others. Former ExxonMobil chief Rex Tillerson at least pays lip service to climate change and probably has enough smarts to complete one side of a Rubik’s Cube. Treasury pick Steven Mnuchin would struggle to make a list of the 30 most loathsome Goldman Sachs veterans. These and a few others were merely worst-case-scenario corporate-influence types, industry foxes sent to man regulatory henhouses.

    “But the rest were the most fantastic collection of creeps since the ‘Thriller’ video. Many were blunderers and conspiracists whose sole qualification for office appeared to be their open hostility to the missions of the agencies they were tapped to run. [My emphasis]

    “Trump’s choice for EPA director, Scott Pruitt, was a climate-change denier who infamously zeroed out the environmental-enforcement division from the Oklahoma attorney general’s office. For secretary of labor, Trump picked a fast-food titan who prefers robots to human workers (robots, he said, don’t file discrimination suits!).

    “Trump put a brain surgeon in charge of federal housing, picked a hockey-team owner to be secretary of the Army, and chose as budget director a congressman best known for inspiring a downgrade to America’s credit rating by threatening to default on the national debt.

    “Trump’s pick for energy secretary, Rick Perry, reportedly not only admitted that he didn’t know what the Department of Energy actually does, but had called for that very agency’s elimination as a presidential candidate (and forgot that fact during a debate). Moreover, Trump had brutalized Perry during the campaign as a dimwit among dimwits, whose ‘smart glasses’ affectation didn’t fool anyone.

    “For Trump and his inner circle to name Perry to any Cabinet post at all felt like trolling, like a football team wrapping the mascot in packing tape and mailing him to Canada. But to send someone you’re on record calling an idiot to run the nation’s nuclear arsenal, that doesn’t fit easily in any bucket: mischief, evil, incompetence – it’s even a little extreme for nihilism.

    “Trump’s lead adviser, the fast-talking Breitbart Svengali Steve Bannon, would ultimately explain the thinking behind Trump’s appointments in front of the CPAC audience. “If you look at these Cabinet appointees, they were selected for a reason,” he said. The mysterious figure described that reason as the “deconstruction of the administrative state.” [Emphasis added]

    “This seemed to confirm the darkest theory of the Trump administration: a state-smashing revolution disguised as populist political theater. A do-nothing Cabinet could ease back on its discretionary authority to save public lands, enforce workplace protections, uphold emissions standards. It could (and soon would) stop investigating crooked police departments. It could redirect funds meant to study climate change or viral outbreaks.”
    http://readersupportednews.org/opinion2/277-75/42627-trump-the-destroyer

    Taibbi doesn’t here address the reality of the pre-existing corporate state and its revolving door of public sector/private sector chieftans, but “deconstructing” environmental- and people- protective agencies altogether is to give corporations even more license to do whatever they please at the public’s expense.

    You ask, “Why is it that NO SENATOR VOTED ‘NO’ FOR EVERY NOMINEE TO TRUMP’S CABINET?”

    You tax Democrats with their caving toTrump regarding short-term agency heads, but then when they talk about trying to block by filibustering the life-time appointment of the radical corporatist Gorsuch, to the extremely powerful and influential Supreme Court, you incredibly denigrate their efforts, urging steet demonstrations, instead, rather than in addition to.

    Speaking of Gorsuch, after I attend to some pressing business, I’ll post excerpts from and links to two essays regarding the political sleight-of-hand of Scalia’s and Gorsuch’s “Originalism,” which latter masquerades as objective textualism, but is actually an extra-constitutional apologia for the authoritarian, corporate state, at the expense of the rights of individual citizens.

    1. “You tax Democrats with their caving toTrump regarding short-term agency heads, but then when they talk about trying to block by filibustering the life-time appointment of the radical corporatist Gorsuch, to the extremely powerful and influential Supreme Court, you incredibly denigrate their efforts, urging steet demonstrations, instead, rather than in addition to.”

      I’m not the only one who has reason to oppose a filibuster and at the same time oppose the nomination. I find no congressional Democrat supports Gorsuch’s nomination. In fact, in terms of the Senate, only Republicans support his nomination.

      Have you heard whether Pat Leahy (member of the judiciary committee), Chris Coons (member of the judiciary committee), Dick Durbin, (member of the judiciary committee), Richard Blumenthal (member of the judiciary committee), Joe Manchin, Heidi Heitcamp, Claire McCaskill, Jon Tester, Joe Donnelly, and Jeanne Sheehan have changed their minds and decided to join the filibuster?

      http://www.nationalreview.com/corner/444718/nine-senate-democrats-say-gorsuch-deserves-vote
      http://nypost.com/2017/03/27/democrat-not-inclined-to-join-filibuster-on-gorsuch-vote/

      Will the ranking member of the judiciary committee, Diane Feinstein, or Amy Klobuchar (member of the judiciary committee) join the filibuster?

      If not, why not? They’re less patriotic than Schumer?

      “Speaking of Gorsuch, after I attend to some pressing business, I’ll post excerpts from and links to two essays regarding the political sleight-of-hand of Scalia’s and Gorsuch’s “Originalism,” which latter masquerades as objective textualism, but is actually an extra-constitutional apologia for the authoritarian, corporate state, at the expense of the rights of individual citizens.”

      I’d be interested in the two essays, but I don’t know that you want to take on “objective textualism” as a standard of constitutional interpretation. Otherwise, Griswold v. Connecticut goes out the window.

  11. @Steve Groen, March 27, 2017 at 2:23 pm
    “Make noise in the street instead, and let the government function.”

    Let’s see if I’ve got this straight:

    Bannon: “One of President Trump’s three main goals is to deconstruct [destroy] the adminstrative state.”

    Rogers: “That explains why he has chosen either totally inexperienced and/or agency-hostile people to head the federal agencies he wants to destroy, so they can do it from within, and it also explains his choice of a 49-year-old Supreme Court nominee who loves big corporations and hates federal agencies.”

    Groen: Let the government function by not opposing the executive appointments of these people who are out to destroy the government. After all, how much destruction of government-protected individual rights can a politically radical corporate wolf in sheep’s clothing accomplish in 30-40 years on the Supreme Court? Forget directly and rudely trying to block this guy’s appoinment by filibustering it, and respectfully get out there and make noise in the street.

    1. Get back to us when you’ve learned what the term-of-art ‘administrative state’ actually means.

    2. Ken Rogers: I’m happy you didn’t put in quotes what you think I wrote.

      “Groen: Let the government function by not opposing the executive appointments of these people who are out to destroy the government. . . .”

      “[T]hese people,” as you say, are not “out to destroy the government.” They’re out to managing it in a way that differs from the way you and I would manage it because they have a different political perspective. That’s it.

      I respect very much your egalitarianism, but you cannot play the high and mighty card here without acknowledging the tens of thousands Obama killed or let be killed, the escalation of war, the regime change (which among other things led to the annexation of Crimea and destabilization of the entire Arab rim of the Mediterranean), and the reduction of our civil liberties as “a minor inconvenience,” all to keep the economy moving and as consideration to his benefactors. Where was the outrage then when he was playing the part of Dick Cheney? It’s just as probable under your rhetorical characterization of my position that Obama too was “out to destroy the government.”

      Ask Sheldon Whitehouse and Amy Klobuchar (both of whom I respect immensely) and Diane Feinstein and Charles Schumer (both of whom I don’t) why they supported the nomination of partisan Tea Partier Michael Pompeo as CIA Director. Why is it that NO SENATOR VOTED ‘NO’ FOR EVERY NOMINEE TO TRUMP’S CABINET?

      https://www.nytimes.com/interactive/2017/01/31/us/politics/trump-cabinet-confirmation-votes.html?_r=0

      It’s a pipe dream to believe that over the course of the next two years the Senate will somehow enlighten itself and vote against confirmation of Neil Gorsuch. Even if you were to delay the confirmation, do you really believe Trump will offer another nominee? If Trum did change nominees, do you really believe he’d settle for someone who doesn’t share his extreme right-wing values? Do you think Trump will publicly morph from the thin veneer of a cartoon populist to the plutocrat you and I both know he is?

      When enough members of Congress realize the holiday from real lie is over if they don’t do what the people in the street want, that’s when change will come.

  12. The job of Democrats is not to win elections or SC nominations. It is to prevent the Left from doing so.

    1. Thwarting the left has become the sole remaining function of the Democrats and even that is not bad for a party that is dead as a door nail in everything except recognition of the fact.

  13. @Paul Schulte, March 26, 2017 at 7:28 pm
    “Ken Rogers – he got the ABA’s highest rating. Gorsuch can’t be all bad.”

    Who said he was? I’m sure that Dick Cheney has redeeming qualities as a human being, but that doesn’t mean he should have been VP of the United States, with the power to wreak the death and destruction that he did.

    Here’s the ABA’s standing committee’s statement on judicial nominations:

    “The standing committee does not propose, endorse or recommend nominees,” Degan told the senators. “Its sole function is to evaluate a nominee’s integrity, professional competence and judicial temperament, and then rate the nominee as ‘well-qualified,’ ‘qualified, or ‘not qualified.’ In so doing, the committee relies heavily on the confidential, frank and considered assessments of lawyers, academics, judges and others who have relevant information about the nominee’s professional qualifications.”
    http://indalaw.com/news/view/9624/ABA_Gorsuch_confirmation_hearing_testimony.html

    The ABA also found Alito and Roberts “well-qualified,” and look at their record of decisions.

    And this won’t trouble (psychopathic) scofflaw advocates of torture, but it should trouble the rest of us:

    “Feinstein then asked whether the ABA committee had an opportunity to examine documents given to the senate regarding Gorsuch’s work as principal deputy associate attorney general during President George W. Bush’s administration. Feinstein had questioned Gorsuch on Tuesday about language which appeared to condone the use of waterboarding and other torture techniques, the Los Angeles Times reported. [Emphasis added]

    “ ‘We did not have an opportunity to review those materials; we would base our information on the personal knowlege of those who dealt with Judge Gorsuch, and if he was acting in his capacity as a lawyer to anyone, that may be protected by the privilege,’ Degan told Feinstein.

    ” ‘But we are happy to review that if necessary in order to determine if we need to adjust the rating. But based on what I heard, I don’t believe that it would change the opinion of the committee.’ ”

    Based on what she “heard”?! Why didn’t she just go on to say, “He seems like such a nice man, so if people who worked with him say he enabled some torture, like Professor Yoo, he must have had his reasons.”

    Nor does this:

    “After confirming that 55 lawyers had been involved in the ABA committee’s evaluation of Gorsuch, Kennedy asked, ‘These 55 attorneys, are they all Republicans?’

    “ ‘No sir,’ said Degan.

    “ ‘Are they all Democrats?’

    “ ‘No sir, very varied,’ Degan said. ‘Big firms, small firms, Democrats, Republicans—in fact, we don’t even get into political affiliations, Senator.’

    One has to wonder how Degan knows that the 55 attorneys are a “very varied” mix of “Democrats [and] Republicans,” if they “don’t even get into political affiliations.”

    Not that it matters much with which wing of the War Party they identify, whether with the Wall-Street-MIC-controlled Democratic Party or the Wall-Street-MIC-controlled Republican Party.

    ABA to World: “It’s all good.”

    1. David B Benson – Obama’s nomination dies with him out of office. Garland is not an option.

  14. @Steve Groen, March 26, 2017 at 7:34 pm
    “The nuclear option ultimately confirms him. Right?”

    Yes, if the Republicans change the Senate rule requiring 60 votes to stop debate (“invoke cloture”), then they would have enough votes to confirm Gorsuch, but then the Democrats could do the same thing when they’re back in the majority, and the Republicans know this.

    As I said previously, I think it’s important that the Democrats call the Republicans on the threat, rather than just rolling over and letting him be confirmed without doing everything in their power to prevent it.

    In a worst case scenario, It might also be a good anti-dote to Gorsuch’s elitist arrogance that such a drastic measure was required to confirm him.

    1. Ken Rogers – I think the Democrats are very sore losers. They have always been the ones that used the rules of the Senate to get what they wanted. Now, out of power and powerless, they are acting butthurt. Granted, the Republicans have not been paragons of virtue.

      1. Paul Schulte, leaving your racism for another day, your hypocrisy never ceases to amaze. Did you think the Republicans were sore losers when they refused to consider Merrick Garland who the “illegitimate half-breed” nominated on March 16, 2016?

        1. Steve Groen – the Republican were following tradition, which says no SC judges approved in an election year.

          1. Fictitious tradition

            The Supreme Court seat left vacant by the death of Justice Antonin Scalia has been unfilled for more than 400 days, the longest opening on the court since the 1860s. This is largely because President Barack Obama’s nominee, Merrick B. Garland, was blocked by Senate Republicans, who argued that a justice should not be seated during an election year.

            Since 1900, however, the Senate voted on eight Supreme Court nominees during an election year. Six were confirmed. On average, a nominee has been confirmed, rejected or withdrawn within 25 days.

            As Senate hearings begin for President Trump’s nominee, Judge Neil M. Gorsuch, here is a timeline of Supreme Court vacancies.

            https://www.nytimes.com/interactive/2016/02/15/us/supreme-court-nominations-election-year-scalia.html

        2. Steve, how was Paul’s posting racist? BTW, do you suffer from memory lapses? Joe Biden along with many other Dems made a declaration during Bush’s last year in office: NO SCOTUS NOMINEES MADE DURING A PRESIDENTIAL ELECTION.

          1. It isn’t. He’s a progressive. They utter ‘racist racist racist’ as if they had Tourette’s.

    2. Ken Rogers, I value your sincerity, but the Democrats only do what their donors tell them to do. They’re as much whores as the Republicans are. To turn around this derelict barge sporting its skull and crossbones, Chris Hedges said it best: it will take you and me out in the streets – peacefully, I might add – to make change. Inertia and apathy are the real enemies.

      1. I’m confused. Rogers seems to be arguing for activism. You seem to be arguing for Inertia.

        You are right about Democrats of course. But they can be herded by popular opinion, it’s just very very time, energy and resource consuming for the results one gets.

        So I probably agree with you even if I think Roger’s argument has considerable merit, but this comment (Inertia and apathy are the real enemies) seems a bit tops-y-turvy at odds with your argument that there isn’t much point in doing anything in the Gorsuch case.

        1. No doubt I didn’t explain myself well enough, and I apologize for that. Inertia and apathy are the real enemies of street protest.

          As for confirming Judge Gorsuch, Article II mandates the President “nominate . . . by and with the [a]dvice and [c]onsent of the Senate” . . . judges of the Supreme Court. The president has done this, and the Senate appears to overwhelmingly favor the nomination both in and out of committee.

          This spectacle of filibuster after what the Democratic Party gave the Left in November is a little too late and a cheap bite out of the same apple as if that party somehow represents the Left anymore. That party gave us a corrupted candidate and a corrupted-national committee leadership, and that doesn’t ruminate in empty stomachs any longer.

          The bottom line is the Democratic Party should not put on a facade of trying to stop the nomination when it cannot be stopped. Gorsuch is an absolute power-hungry A-hole if his lack of humility is an indicator, and this may very well affect his opinions, but he’s otherwise as qualified as any of them and you have to admit personal background and politics have historically affected opinions of the left-leaning Justices of the Supreme Court.

          Make noise in the street instead, and let the government function.

          1. I agree in the sense that there is zero chance that the Democrats will fillibuster. And I would put the same chances on them doing it for any reason, good or bad. But not because due to past behavior they now have some weird responsibility to maintain their profile as Vichy traitors to their constituents, or because, given the same behavior, it would be hypocritical or too little too late.

            Dems will wave their hands a little as usual as if that is more than enough to satisfy the base, and then they will repeat the same old mantra about keeping their powder dry. Rince, repeat. Republicans would be something other than Republicans if they did not follow through with such precedent making moves and go to the next level next time this happens, refusing hearings of any kind, 1 year or 8, for Democrat nominations to the SC.

            Repubs basically already have a tradition; “We don’t take nominations from Chicken Sh*ts.”

            1. Update:

              Repubs basically already have a tradition; “We don’t take nominations from Chicken Sh*ts.” And Democrats are perfectly happy with that arrangement.

          2. Steve Groen – you don’t suppose Gorsuch will bring the wisdom of the middle-aged white guy to the SC?

    3. The guy has ‘elitist arrogance?’ I found him quite down to earth. At first his intellectual honest and offering only the info that was asked was sort of disarming and he was hiding something.

      Then, as time went on, and this pattern never changed, I realized that what I saw/heard was the real deal and he was impersonating no one but himself. Elitist arrogance? No. Humility.

      As far as the nuclear option and whether or not it should be invoked or not, Dirty Harry has gone down in infamy on this one and to try to shift blame to anyone but Dems on this stretches the bounds of incredulity.

  15. “This has led to what I have referred to as the era of “blind date nominees,” candidates with essentially empty portfolios when it comes to any provocative or even interesting thoughts”

    Professor Turley, please name names of those who were confirmed as Judges who meet your criteria of a “blind date nominee”. I have a few thoughts, what are yours?

  16. @Steve Groen, March 26, 2017 at 7:38 pm

    “Schumer is a schmuck.”

    Steve, aren’t you flirting, if not actually having illicit relations with, the argumentum ad hominem.?

    One needs to support righteous behavior in anyone who manifests it, regardless of his past conduct.

    Filibustering Gorsuch’s nomination is the right thing to do, and the senators who support that don’t need to agree with us on every issue to merit our support with respect to this issue.

    I have, in addition to those about Schumer’s, many very serious reservations (to put it mildly) about Trump’s agenda, but his withdrawing the US from TPP, for example, is highly laudable, and I give him credit for that.

    Shouldn’t we take cooperation, in what we see as the right thing to do, wherever we find it, without requiring that the cooperating parties agree with us in every, or even most, particulars?

    Giving the avid representatives of plutocracy on the Supreme Court a majority, in order to resume really having their way with the rest of us, is not my idea of a good time, so notwithstanding our serious differences, I support the Senator from Goldman-Sachs in his effort to keep Neil “Worse-Than-Scalia” Gorsuch from sitting in with the Supremes.

  17. @Steve Groen, March 26, 2017 at 4:46 pm
    “Ken, I understand your argument. I don’t like this anymore than you do, but if it’s not Gorsuch then Trump will nominate someone else likely even worse than Gorsuch, who is at least a competent radical in sheep’s clothing.

    “Is it your reasoning the Democrats can delay this Senate confirmation for two years and get enough relief at the mid-term elections to then delay it for another two years thereafter until Trump is hopefully out of office?”

    That’s defeatest thinking, Steve. Let Trump (Bannon) send up the next guy on the Federalist Society’s list of rabidly politicized judges if Gorsuch is successfully filibustered, and let him enjoy the same treatment that Gorsuch has whined about, i.e., be subjected to some actual questions and challenges regarding his judicial philosophy and dubious decisions from the bench. Third political hack, same treatment.

    Gorsuch’s radical politics and level of judicial competence are two sides of the same coin.

    Watch and listen again to what the trucker’s attorney said about Gorsuch’s being the most hostile judge he had ever argued a case in front of, and then read Gorsuch’s hostile and irrational dissent in that case. How can you characterize that as being “competent”?

    I’m singularly unimpressed by his “vaunted intellect” and self-proclaimed capacity for empathy for the unincorporated litigants he has deigned to hear out in his court.

    He reminds me of a couple of other Bush Administration standouts, Harriet Meyers and Alberto Gonzalez, except he’s a lot more jittery and smug.

    The guy needs to be sent back to the 10th Circuit where he can continue to be tutored in logic by the other two judges, or perhaps be made White House Counsel, so he can advise Trump, as he apparently did Junior, on the legal niceties of “enhanced interrogation.”

    1. Ken Rogers – he got the ABA’s highest rating. Gorsuch can’t be all bad.

      1. BTW, it’s not a defeatist’s thinking. It’s being sick and tired of these two hack parties, one of which is lead in the Senate by hack called Schumer who thought the Democratic Party should target moderate Republicans rather than progressives for votes last November. He should put his head in a bucket of water for five minutes as far as I’m concerned. He has no room to throw any weight around, because he’s part what got us here in the first place.

    2. What is it about Neil Gorsuch that is an incompetent “radical in sheep’s clothing? I’m curious, too I’ve read a lot and seen much more in the ways of writings from the left and the right and I’ve only heard flimsy stuff like that of Al Franken and Diane Feinstein.

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