Tuesday, March 28, 2017

Gorsuch: Two Views of the Man

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: 
A bio prepared by the Alliance for Justice during his confirmation process in 2006 outlines his conservative student journalism 30 years prior:
“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): 
According to a 1992 paper he co-authored shortly after finishing law school at Harvard:
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: 
After studying the issue at Oxford, Gorsuch penned a book about the moral and legal arguments surrounding the end-of-life debate, entitled “The Future of Assisted Suicide and Euthanasia.” Published by Princeton University Press, the work is cited extensively in Ryan Anderson’s Heritage Foundation paper on physician-assisted suicide from 2015. 
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: 
In a 2013 lecture at the Federalist Society, Gorsuch tackled head on the problem of having far too many laws on the books:
“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:
With a resume this impressive, Senate Democrats are going to put up one hell of a fight to get someone more “mainstream,” as Minority Leader Chuck Schumer, D-N.Y. (F, 2%) has demanded. Republicans will either have to get rid of the filibuster for judicial nominations or invoke the two-speech rule to get Gorsuch onto the bench.

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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. ♦

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