The Ultimate Confirmation
It's not difficult to be an unbiased Judge it is a conundrum. I pretty much watched most of the Gorsuch hearing before the Senate Judiciary Committee. I do this for a couple of reasons. I want to know more about this person who will be taking a seat on the highest court in the land, and I want to try to get a peek into that person's beliefs.
In truth you don't get a lot of specific information at these hearings, other than knowing that Supreme Court nominees usually have pretty strong thighs from all that straddling of questions that they go through.
What I want in a judge is an open mind, a working mind that can discern. I want a judge that can listen to arguments and put forth good arguments as well. I am an idealist, I really think a judge can have personal beliefs and opinions but at the same time be open to arguments that may differ from those he/she holds and be able to make decisions based upon facts in a case and have the intellect to interpret the Constitution.
I get the dancing around and the straddling of questions asked but I also think it is a silly routine. I mean no offense to The Honorable Ginsberg who appears to have set a standard for interrogation.
Here are some opinions of Neil Gorsuch from differing points of view. Maybe there is something to be learned about the man in the reading that we couldn't get from the questions of the Senate Judiciary Committee.
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Source: Conservative Review, Who Is Neil Gorsuch? 10 Things You Need To
Know About Trump’s Supreme Court Nominee, By: Nate Madden
Donald Trump has nominated
10th Circuit Judge Neil Gorsuch to fill the late Antonin Scalia’s seat on the
Supreme Court.
Here’s what you need to know:
1. His academic resume alone is very
impressive:
He completed his
undergraduate studies at Columbia University in New York, got his J.D. from
Harvard Law School, and then earned his doctorate from Oxford after studying under
the titanic legal philosopher and natural lawyer John Finnis.
2. There would also be another interesting
first:
After clerking under Justice
Byron White, Gorsuch clerked for Justice Anthony Kennedy. If confirmed, it
would be the first time a
Supreme Court justice sat on the same bench as a jurist for whom he’d previously
clerked.
3. He knows the struggles of being a
conservative on a liberal college campus:
“While in college, Mr. Gorsuch co-founded a
newspaper and a magazine at Columbia University. Both publications – The
Morningside Review (the magazine) and The Federalist (the newspaper) – were
intended to counter what Mr. Gorsuch and his co-founders saw as the
predominance of liberal political views at Columbia during the mid-to-late
1980s. A review of available issues of the The Morningside Review, located in
the Columbia archives, revealed two pieces authored by Mr. Gorsuch: one was a
comment on U.S. policy in Afghanistan; the other, a general defense of
conservative political philosophy. The Columbia archives also contain most, but
not all, of the editions of the The Federalist published during Mr. Gorsuch’s
tenure at the paper. According to its initial statement of purpose, The
Federalist attempted to provide a “classically liberal” forum for conservative
students and others who want to air views not typically heard on campus. Mr.
Gorsuch, one of the paper’s three founders, served on the board of editors and
later as a contributor.”
4. He’s no fan of over-litigation:
Frivolous lawsuit-mongers —
leftist and otherwise — may want to take heed to Gorsuch’s 2005 op-ed in
National Review, where he calls out the Left’s obsession with what
Justice Scalia called “social transformation without representation”:
During the New Deal, liberals recognized that
the ballot box and elected branches are generally the appropriate engines of
social reform, and liberals used both to spectacular effect–instituting
profound social changes that remain deeply ingrained in society today. In the
face of great skepticism about the constitutionality of New Deal measures in
some corners, a generation of Democratic-appointed judges, from Louis Brandeis
to Byron White, argued for judicial restraint and deference to the right of
Congress to experiment with economic and social policy. Those voices have been
all but forgotten in recent years among liberal activists. It would be a very
good thing for all involved–the country, an independent judiciary, and the Left
itself–if liberals take a page from David von Drehle and their own judges of
the New Deal era, kick their addiction to constitutional litigation, and return
to their New Deal roots of trying to win elections rather than lawsuits.
5. He’s pro-term limits (or at least was during
the Bush 41 administration):
Recognizing that men are not angels, the Framers
of the Constitution put in place a number of institutional checks designed to
prevent abuse of the enormous powers they had vested in the legislative branch.
Bicameralism, frequent elections, staggered terms, differing qualifications,
shared and exclusive powers, and state control over election procedures are all
examples of the mechanisms the Framers crafted with the hope of ensuring a
responsive yet responsible legislature. A term limit, we suggest, is simply an
analogous procedure designed to advance much the same substantive end.
Gorsuch and Guzman argue that
this has been upended by the party system, legislative seniority, committee
assignments and things of that ilk, thus precipitating term limits.
6. He’s literally written a book on life
issues:
7. He’s also a rock star on federal regulations
administrative law:
One area where Neil Gorsuch
appears to be more of an originalist than
Justice Scalia is on the question of giving federal agencies the ability to
interpret statutes themselves and make de-facto regulations. The
so-called Chevron
Deference is one area where Gorsuch has made substantial waves
as an appellate judge with a dynamite opinion back in August:
“There’s an elephant in the room with us today.
We have studiously attempted to work our way around it and even left it unremarked.
But the fact is Chevron and Brand X permit executive bureaucracies to swallow
huge amounts of core judicial and legislative power and concentrate federal
power in a way that seems more than a little difficult to square with the
Constitution of the framers’ design. Maybe the time has come to face the
behemoth.”
“For administrative law
nerds, U.S. Tenth Circuit Court Judge Neil Gorsuch’s” Chevron opinion “is about
as thrilling as it gets,” reads a press release from the Pacific Legal
Foundation.
8. He’s no fan of over-criminalization:
“What about our criminal
justice system, you might ask. It surely bears its share of ironies too.
Consider this one. Without question, the discipline of writing the law down—of
codifying it—advances the law’s interest in fair notice. But today we have
about 5,000 federal criminal statutes on the books, most of them added in the
last few decades, and the spigot keeps pouring, with literally hundreds of new statutory
crimes inked every single year."
“Neither does that begin to
count the thousands of additional regulatory crimes buried in the federal
register. There are so many crimes cowled in the numbing fine print of those
pages that scholars have given up counting and are now debating their
number."
“When he led the Senate
Judiciary Committee, Joe Biden worried that we have assumed a tendency to
federalize, ‘Everything that walks, talks, and moves.’ Maybe we should say
‘hoots’ too, because it’s now a federal crime to misuse the likeness of Woodsy
the Owl. (As were his immortal words: ‘Give a hoot, don’t pollute!’)
Businessmen who import lobster tails in plastic bags rather than cardboard
boxes can be brought up on charges. Mattress sellers who remove that little
tag? Yes, they’re probably federal criminals too."
9. He pulls no punches on due process rights:
Another notable area of Neil
Gorsuch’s jurisprudence revolves around the Fourth Amendment and his decisions
on issues surrounding search and seizure — especially as they relate to
technology and cyber security. “New technologies bring with them not only new
opportunities for law enforcement to catch criminals,” he wrote in an opinion
in U.S. v. Denson,
“but also new risks for abuse and new ways to invade constitutional
rights.”
In another case, which
focused on police entering a property without consent, Gorsuch ruled that
the home owner had “unambiguously” revoked the government’s ability to enter
his home unwarranted when he posted a no-trespassing sign on his property.
10. He won’t be that easy to confirm:
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Source: The New
Yorker, Behind Neil Gorsuch’s
Non-Answers, Every sign suggests that he
would be at least as conservative a judicial activist as Samuel Alito, By
Jeffrey Toobin
Ruth Bader
Ginsburg, the diminutive liberal colossus of the Supreme Court, has built a
distinguished record as a Justice, but her legacy as a nominee is more dubious.
In her confirmation hearing before the Senate Judiciary Committee, in 1993, she
refused to answer most questions about how, if confirmed, she would rule. In an
oft-quoted phrase, she vowed to give “no hints, no forecasts, no previews.”
Nominees have invoked this stonewall ever since. Last week, Neil Gorsuch,
Donald Trump’s choice to fill the seat of the late Antonin Scalia, proved an
especially ardent follower of what has come to be known as the Ginsburg rule.
Asked repeatedly
by members of the committee about his views of such cases as Roe v. Wade and
Citizens United, Gorsuch not only refused to answer but went on to say that his
feelings, if he had any, were of no consequence: “It’s not a matter of agreeing
or disagreeing. It’s a matter of it being the law, and my job is to apply and
enforce the law.” Gorsuch portrayed himself as a kind of judicial automaton,
obligated to pay mindless obeisance to the Court’s prior rulings. This
interpretation of the role of Supreme Court Justices is, to put it charitably,
incorrect—they can and do overturn their earlier holdings. And Trump didn’t
nominate Gorsuch simply because he knows how to follow precedent. He nominated
Gorsuch because his career resembles a lab experiment synthesizing every trend
in modern conservative thought.
A ruggedly
handsome Coloradan—this President cares a great deal about appearances—Gorsuch
has an appealing manner and an impressive résumé. He did well in good schools,
held prestigious clerkships, worked at a fine law firm, took a senior post in
the Department of Justice, and for the past decade has served on the Tenth
Circuit Court of Appeals. From his boyhood days as a Republican Senate page to
his decades of volunteer work for G.O.P. candidates, Gorsuch has been a strong
party loyalist. (Like many Republican pols, he refers to the “Democrat,” rather
than the Democratic, Party.)
His background
also includes a dose of pro-corporate, deregulatory libertarianism, as
reflected in his close relationship with the billionaire Philip Anschutz, a
client turned mentor. A sampling of authoritarianism can be seen in Gorsuch’s
service in George W. Bush’s Justice Department, where he helped craft a
proposal for the treatment of detainees at Guantánamo. (The Supreme Court later
ruled it unconstitutional.) There’s social conservatism, too, evident in his
one book, a critique of death-with-dignity laws and physician-assisted suicide.
“All human beings are intrinsically valuable,” he wrote, “and the intentional
taking of human life by private persons is always wrong.” It’s easy to read the
book as a coded attack on abortion rights.
To the extent
that Gorsuch said anything of substance at his hearing, he put himself across
as a mainstream figure. He said that he had participated in some twenty-seven
hundred cases on the appeals court, and had voted with the majority in
ninety-nine per cent of them. This proves only that most cases are routine.
(Even the Supreme Court issues unanimous rulings more than half the time.) The
hard cases are the ones that matter, and it’s reasonable to project how Gorsuch
would vote in them. He would oppose abortion rights. (Trump promised to appoint
a “pro-life” Justice.) His predilection for employers over employees is such
that it yielded a circuit-court opinion of almost Gothic cruelty. When subzero
temperatures caused a truck driver’s trailer brakes to freeze, he pulled over
to the side of the road. After waiting three hours for help to arrive, he began
to lose feeling in his extremities, so he unhitched the cab from the trailer
and drove to safety. His employer fired him for abandoning company property.
The majority in the case called the dismissal unjustified, but Gorsuch said
that the driver was in the wrong.
As a Justice,
Gorsuch would embrace the deregulation of campaign finance symbolized by the
Citizens United decision. (He argued in an opinion that judges should evaluate
limits on political contributions using the same tough standards that they
apply to racial discrimination.) His most famous Tenth Circuit decision had him
taking a side in the culture wars. In Hobby Lobby Stores, Inc. v. Sebelius, he
ruled that a multibillion-dollar corporation could withhold federally
guaranteed rights to birth control from thousands of female employees because
of the religious beliefs of the corporation’s owners. (His position was upheld,
5–4, by the Supreme Court.) In an embarrassing coincidence, on the second day
of Gorsuch’s testimony, the Court unanimously rejected one of his holdings in
the Tenth Circuit, ruling that it denied adequate educational opportunities to
students with disabilities. Every sign suggests that Gorsuch would be at least
as conservative a judicial activist as Samuel Alito.
It’s also clear what Neil Gorsuch is not: Merrick Garland.
Gorsuch’s nomination is inextricable from its shameful political context. When
Scalia died, more than eleven months remained in Barack Obama’s Presidency, but
Senate Republicans refused to give his nominee even a hearing. This departure
from norms was all the more outrageous because the tactic was used to block a
moderate; the Republicans denied Obama his constitutional right in order to
trade a Justice who might have been less liberal than Stephen Breyer for one
who might be as radical as Clarence Thomas. Such a turnabout seems especially
disturbing given that the F.B.I. and other agencies are now investigating the
very legitimacy of the Trump Presidency. Indeed, Chuck Schumer, the Democratic
leader in the Senate, has called for a delay in the Gorsuch vote until there is
some clarity about the Trump camp’s ties to Russia. Last week, he also promised
to lead a filibuster against Gorsuch’s confirmation, but Republicans, in
response, vowed to change the Senate rules to allow them to confirm the nominee
by a simple majority.
The Supreme
Court is, as political scientists like to say, a counter-majoritarian
institution: the President and the members of Congress must answer to the
voters; the Justices, who serve for life, answer only to the commands of the
Constitution. But, in doing so, it’s their duty to speak for those who lack
political power. The Trump era has already meant trouble for these people—the
poor, the sick, dissenters, immigrants—and Gorsuch, for all his intellectual
distinction, has shown scant regard for their concerns. There’s little reason
to believe that he would as a Justice, either. ♦
