Neil Gorsuch is not a SCOTUS nominee that Democrats would choose, but is he the best we can get? (More)
“A reasonable reader in the past”
Currently an appellate court judge in the 10th Circuit, Gorsuch advocates an ‘originalist’ textualism in the mold of Antonin Scalia:
The overlaps between Gorsuch and Scalia become clear when you read the speech Gorsuch delivered after Scalia’s passing. Beyond its personal encomia devoted to Scalia, the speech lays out Gorsuch’s fundamental approach to interpreting law and the Constitution, which is very similar to the late justice’s. Both are textualists, concerned primarily in the literal text of laws and less in their legislative history or social context of passage.
Gorsuch also speaks admiringly of the approach taken by Supreme Court Justices Sonia Sotomayor and Elena Kagan’s opinion and dissent, respectively, in last year’s case of Lockhart v. U.S., a criminal appeal concerning whether a mandatory minimum sentence applied to a defendant convicted of a sex offense. The justices disagreed sharply, but their disagreement was solely over how to interpret a vague antecedent in the text of the statute establishing the mandatory minimum.
“Neither [the opinion nor the dissent] appealed to its views of optimal social policy or what the statute ‘should be,’” Gorsuch said. “Their dispute focused instead on grammar, language, and statutory structure and on what a reasonable reader in the past would have taken the statute to mean – on what ‘the words on the paper say.’”
Note the deft change of tense from “what a reasonable reader in the past would have taken the statute to mean” to “what ‘the words on the paper say [in the present].’”
There are three problems with this ‘originalist’ textualism:
First, because Gorsuch dismisses legislative history as a guide to interpretation, we can’t even nail down who that “reasonable reader in the past” is. Justice Scalia’s opinions often cited people who had nothing to do with drafting a provision, and sometimes texts that had nothing to do with the provision itself, as evidence of what specific words ‘meant’ back then. But how do we know if the people being quoted were “reasonable?” Well, because their words seem to suggest … interpretations that Justice Scalia liked.
Which brings me to the second problem. That “reasonable reader in the past” is all-too-conveniently dead. An ‘original textualist” can simply declare that William Featherton is the “reasonable reader in the past” and his use of “person” in an 1867 newspaper column is the standard for what “person” means in the Fourteenth Amendment … and no one can ask Featherton whether he agrees or disagrees.
Even if Featherton would agree, there’s a third problem. Why should 21st century citizens be shackled by the understanding of a 19th century writer? If Featherton believed that “person” really meant only “adult male” – as most 19th century men believed and too many 21st century men still wish – should that antiquated mindset mean the Fourteenth Amendment still excludes women … as Justice Scalia once argued?
Gorsuch, like Justice Scalia, insists that ‘originalist textualism’ is ideologically neutral. But it’s not. It enshrines an era when white men absolutely dominated society, and at great cost to women and people of color. Yet we’re to believe it’s merely a coincidence that almost all ‘originalist textualists’ are … white men.
“No one before us disputes”
As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.[Emphasis added.]
Yet in a footnote, Gorsuch concedes that is a lie:
See Gov’t Br. at 9 n.6 (acknowledging that some of the drugs referenced in the ACA mandate can “inhibit implantation”); Plaintiffs’ Complaint ¶ 95 (suggesting same and citing an FDA publication). The dissent takes issue with the government’s concession and asserts that the drugs referenced in the ACA mandate do not have the effect of preventing the implantation of a fertilized egg. See Briscoe Op. at 3, 31. But the dissent also acknowledges that the devices referenced in the mandate do have this effect.
In fact there is not a shred of medical evidence that any birth control method “can destroy a fertilized egg.” The forced birth movement makes that claim … but they can’t prove it:
According to the Code of Federal Regulations, The American College of Obstetricians and Gynecologists and the National Institutes of Health, pregnancy begins when a fertilized egg implants in the womb. Until it affixes to the woman’s womb a fertilized egg can not receive nutrients from the woman’s body, which is essential for it to grow. Implantation is also the only way in which a pregnancy can be determined, there is no test that can tell when an egg has been fertilized – there is no way of knowing whether or not this has happened.
If you can’t possibly know whether an egg has been fertilized unless it implants, then you can’t possibly prove that the pill, patch, implant, or IUD “can destroy a fertilized egg” by preventing implantation. Simply declaring that “No one here disputes” is no substitute for scientific evidence.
Beyond that, Gorsuch clearly believes that an employer’s conscience trumps an employee’s conscience. Never mind that health insurance is earned compensation for labor provided, just like salary. The only difference is one of accounting, and a mere accounting distinction should not erase an employee’s conscience in favor of her employer’s.
“Just say no?”
For these reasons, and because Senate Republicans refused to even consider Merrick Garland, Scott Lemieux says Senate Democrats should filibuster Gorsuch:
If the question is what Senate Democrats should do, though, there is little question: Just say no. If Senate Republicans want Gorsuch, they should have to eliminate the filibuster for Supreme Court nominations. There are compelling reasons, both general and specific to this nominee, why Senate Democrats should go to the mat.
He makes a good argument, except for two points. First, there’s little question that Senate Republicans would indeed kill the filibuster for Supreme Court nominees, allowing the God-King to appoint an even worse candidate for the next vacancy. Second, Gorsuch believes in a stronger and more independent judiciary, and the New York Times’ Neil Katyal argues that we’ll need such a judiciary to rein in the God-King:
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence – a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.
In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law’s meaning, he wrote, they “are not fulfilling their duty to interpret the law.” In strong terms, Judge Gorsuch called that a “problem for the judiciary” and “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” That reflects a deep conviction about the role of the judiciary in preserving the rule of law.
However, I’m still concerned that his views on executive power could undermine Trump acting unilaterally on immigration. Indeed, many are already cheering this possibility.
We don’t know if the Trump administration asked him about his views on immigration, but it will have no power on him once confirmed. What could Trump have done? I am not particularly well connected to the federal judges or State Supreme Court justices, but I do know of a handful of judges who have privately expressed very strong views on immigration. Someone who is better connected should know dozens, some of whom would be confirmable. Maybe one of these people advised Trump to pick Gorsuch. However, the fact that Hardiman, who appeared to be weak on immigration, became a finalist makes this unlikely.
For the record, Reid believes the Court should declare that immigration is one of the president’s “plenary powers” and thus let the God-King issue and enforce whatever orders he pleases. Anything less is “weak on immigration.”
I don’t know what Senate Democrats should do. I think Gorsuch’s ‘originalist textualism’ is a fancy-words excuse to cherry-pick history for dead people who said or wrote something you like. His Hobby Lobby opinion is both dishonest about the medical facts and dismissive of women’s consciences. Most of his opinions read like doctrinaire pro-business conservatism, and his argument for a stronger judiciary seems primarily aimed at gutting regulations on business rather than stopping the God-King’s attempted coup.
Yet if Senate Democrats let the filibuster die over Gorsuch, I fear the God-King may have even more radical Court nominees on his list … and we’ll have no defense left.
Photo Credit: Nicholas Kamm (AFP/Getty Images)
Good day and good nuts