February 2, 2017 John Hanno
“Neil Gorsuch, King Donald’s Judicial Tarbaby”
When Justice Antonin Scalia died last February, President Obama could have nominated a certified progressive, someone as far left politically, as Judge Neil Gorsuch is to the far right, to take his place. But he didn’t; he nominated Merrick Garland, chief judge for the U.S. Court for Appeals of the District of Columbia Circuit. Judge Garland is a Harvard Law School graduate and a highly respected moderate who was almost unanimously confirmed for the second highest court, the D.C. Circuit.
Again, for the umpteenth time, President Obama held out a compromising hand to the entrenched, do nothing, obstructionist Republi-con congress. As usual, they slapped it away.
Under normal conditions Judge Gorsuch, who’s even more conservative than Justice Scalia, is probably not out of the realm of very conservative Judges and can actually sound reasonable on the surface, if we’re to believe some of these public statements he’s made. Are they rehearsed rhetoric or a true insight into the mans character?
“My personal views, as I hope I have made clear, have nothing to do with the case before me in any case.”
“If I believed that judges and lawyers regularly acted as shills and hacks, I’d hang up the robe. I’d turn in my license.”
“No doubt we have to look hard in the mirror when our professions reflected image in popular culture is no longer Atticus Finch but Saul Goodman.”
But these aren’t normal times. Even before Scalia’s funeral, Republi-cons said they wouldn’t accept anyone the President nominated in an election year. But every year is now a campaign and election year. The constitution doesn’t say the U.S. Senate will advise and consent only in the first 3 years of a presidents term. But these dip-ocrits wouldn’t give Judge Garland a hearing or a vote and most Republi-con Senators refused to even meet with him. Some even said that if Hillary Clinton were elected President in November, they would not allow her choice to be nominated; that they would just as soon leave the court with only eight judges.
It’s been reported that the Koch brothers were worried that, had Judge Garland joined the Supreme Court, the Citizens United case probably would have been overturned. So their marching orders to the Republi-con Senators was to oppose Garland at all costs, so that the rich and powerful could continue to undermine our democracy with boat loads of campaign contributions. Senate Majority Leader McConnell’s ranting that Democrats should play fair and not obstruct Judge Gorsuch’s confirmation, demands a new word for hypocrisy. How about high-pocrisy or so-pocrisy?
Some Democratic Senators who’ve studied Judge Gorsuch’s case work and decisions, believe he’s too far to the right to satisfy the 60 vote standard to be confirmed. They believe he consistently favors corporations and the powerful over individual folks and the powerless. They think someone who can’t be confirmed by 60% of the Senators, based on centuries of U.S. Senate history, should not serve a life term on the most consequential court in America. But even more important, is that Democrats believe the Republi-cons have stolen that seat from President Obama and have permanently damaged the credibility of the United States Senate by refusing to allow a hearing and vote on Judge Garland.
It’s not surprising that only 14% of Republicans and 17% of Democrats approve of the Republi-con controlled 2016 congress.
A recent Gallop poll showed the Supreme Court approval rating fell to 42% immediately after their decision to permit governments to use the power of eminent domain to seize private property for economic development purposes and 52% of Americans now disapprove of the Supreme Court. “After the Supreme Court legalized same-sex marriage nationwide and rejected a second major legal challenge to the 2010 Affordable Care Act last summer, Democrats’ (76%) and Republicans’ (18%) approval ratings of the court were the most polarized Gallup had ever measured. Democrats remain significantly more likely to approve, 60% to 32%, but the party gap in approval ratings has narrowed, from 58 percentage points to 28 points.” Independents’ approval of the court today is 38%.
“Gallup has documented that Americans’ more basic trust in government institutions has eroded in recent years, and the Supreme Court, often the most popular and trusted of the three branches of the federal government, has not been immune.”
These take no prisoners Winuts have proved time and again they aren’t giving an inch to the opposition under any circumstances. Winning means everything to them, no matter the consequences to America’s citizens, our political traditions, our Democracy and even their own credibility and reputation. The only thing they value is power and wealth.
The Supreme Court proclaims it doesn’t want to engage in politics, but it’s time they stood up for the Judicial Branch and for the constitution; the court has become just another extension of the Republi-con, un-American radical agenda since even before 2000. They should speak out about the Republican controlled senate’s treatment of Judge Garland. And one of the first questions Senate Democrats should pose to Judge Gorsuch during his senate confirmation hearings should be: Judge Gorsuch, do you believe the Republican senators treated Judge Garland fairly by refusing to meet with him, hold confirmation hearings or vote on his confirmation? And did the Senate fail to do their constitutionally prescribed duty?
And after the hearings, but before the voting, Judge Gorsuch, if he has the integrity required of an independent Supreme Court Justice, should withdraw his own nomination. Judge Gorsuch could then be nominated for the next opening and the Democrats would no doubt confirm him unanimously. Someone has to begin repairing the court and Senates reputation. Is Judge Gorsuch that person? It sure isn’t King Donald.
The Donald could have attempted to bridge America’s political divide, repair the damage done to the U.S. Senate and to the United States Supreme Court by nominating Judge Garland himself. But he again proved that he’s a mere shadow of the man he replaced as president. He’s an ideological con man with a radical far right agenda in tune with congressional Republi-cons. King Donald touts the validity of the U.S. Constitution but by instructing Mitch McConnell to invoke the nuclear option to get Gorsuch confirmed at all costs, he’s undermining the other two coequal branches of government. King Donald continues to turn America into an Autocracy.
What the Republi-cons have to remember is that America is quickly changing. Old White folks are dying off to the tune of 10,000 a month. If it wasn’t for voter suppression, FBI Director Comey and Russian interference, this crew would not have been in power for the next century. They may need the filibuster in the very near future because the pendulum is swinging in the direction of justice for all.
So I’ll ask the same questions David Leonhardt asks in “Why Democrats Should Oppose Neil Gorsuch.” What do Democrats do now; should we just pick our fights, the ones we can win? No! No! No! We should oppose any and all Republi-con transgressions that go against American values and norms, human decency and American Democratic principles.
The 100’s of thousands of patriotic Americans, who have protested daily since Trump’s inauguration, want the Democrats to stand up to this radical King’s Court. After 8 years of sensible and drama less governance, Trump’s daily excursions into chaos have folks throughout the country and around the world worried about King Donald’s radical agenda. His poll numbers are tanking so they pushed up the Supreme Court nomination to take America’s mind off the administrations early missteps and true intentions, taking America Back to The Robber Baron Era. John Hanno
P.S. Newsweek’s Kurt Eichenwald has stated as good a case as one can to vote against confirming Gorsuch.
Newsweek Opinion
Eichenwald: Neil Gorsuch Is Supremely Qualified, and Must Not Be Confirmed.
By Kurt Eichenwald February 1, 2017
This is a very hard column to write. I’m about to abandon everything I believed for much of my life about the proper principles for federal governance. Unfortunately, too many of our political leaders did that long ago, which makes this conclusion inevitable: Federal Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, must not be confirmed. Democrats must fight it to the bitter end. The preservation of the final, tattered remains of American constitutional government demands it.
This has nothing to do with Gorsuch as a nominee. On first assessment, there is no doubt he is eminently qualified, perhaps more so than several other sitting justices were at the time of their nomination. He has done it all. His legal education is first-rate, with a law degree from Harvard and a doctorate in jurisprudence from Oxford. He has seen up close how the Supreme Court works, serving as a clerk for Justice Byron White and then Justice Anthony Kennedy. For more than a decade, he has served as a judge on the U.S. Court of Appeals for the 10th Circuit, where he has gained a reputation as someone committed to the rule of law. He is a member of the federal Advisory Committee on Appellate Rules.
There was a time in history when that would have been enough. And if someone with Gorsuch’s pedigree had been nominated by, say, George W. Bush in his first term, I would be supporting Senate confirmation under Article II of the Constitution—not because I agree with him on policy, which to me has usually been irrelevant in selecting a judge, since the high court is not supposed to be filled with the equivalent of lifetime senators. If he is qualified and has a philosophy of jurisprudence that is widely recognized as legitimate—which Gorsuch does—that would be enough.
But no more. Gorsuch, unfortunately, must be sacrificed on the altar of obscene partisanship erected by the Republicans in recent years. Temper tantrums designed to undermine the Constitution for naked political purposes cannot be rewarded. Our government cannot survive the short-term games-playing that has replaced fidelity to the intent of the Founding Fathers’ work in forming this once-great nation.
This goes back to the unconscionable decision of Republicans who refused to consider any nominee put forward by President Barack Obama following the death of Associate Justice Antonin Scalia. Obama nominated Merrick Garland, another eminently qualified candidate, who served as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the nation. But in a decision that will go down as one of the greatest abuses of the Constitution in this nation’s history, the Senate’s Republican majority, under the leadership of their unprincipled majority leader, Mitch McConnell, declared they would not give Garland hearings, would not examine his qualifications and would not take a vote.
Instead, they made up a rule: A nominee for the Supreme Court can be considered for only three-quarters of any president’s term. In the fourth year, confirmations have to wait until after the election. And so the Supreme Court has been hobbled for coming up on one year—and, because the confirmation hearings will inevitably drag on, it will be for months more to come.
The Republican fiat horrified those who care about the Supreme Court as an institution. Sixteen scholars sent a letter to Obama to express their dismay, writing, “The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate’s best practices and noblest traditions for much of our nation’s history.”
A letter to the Senate leadership, signed by 356 legal scholars, said refusing Garland a vote “is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.”
In another move, 33 law professors issued to Obama and the Senate Republicans an open letter stating, “The Senate’s constitutional duty to ‘advise and consent’—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court, and the Senate confirmed 21 of these nominees.”
No matter—the Republicans would not budge. Garland received no hearings, no vote, no consideration whatsoever.
And don’t think this has anything to do with a philosophy about how the court should run. When Obama in 2013 nominated Patricia Ann Millett to be a judge for the all-important circuit court in Washington, D.C., the Republicans pulled another “principle” out of their nether regions: no new judges should be added to that court to…save money. And because the court didn’t have a big enough workload. Seriously. Charles Grassley, the ranking Republican member of the Senate Judiciary Committee, said that nonsense without bursting out laughing at the magnitude of his mendacity.
At the time, there were four seats open on the D.C. circuit court. That Obama was unable to get a single judge confirmed to that court by Senate Republicans—despite having already served his first term and being only into the first year of his second—puts the lie to this idea that the GOP obstruction of judicial nominees was about anything other than undermining the constitutional authority of the president of the United States. Grassley, who will certainly appear in future history books as the political hack who destroyed our judicial branch of government, let the veil slip about his real reasons for trying to keep Obama nominees off the court: politics.
“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents,” Grassley said in a floor statement on the Millet nomination, using the incorrect name for the Democratic Party in a petty game some conservative bullies find amusing. “There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.”
In other words, in the first year of a president’s term, the senior Republican most responsible for getting judicial nominees to the Senate floor for a confirmation vote said that disrupting a 4-4 balance on the panel second to the Supreme Court was politics. So a first-year nominee can’t be accepted, a fourth-year nominee can’t be accepted, and courts should function with the constant risk of tie votes because a president fulfilling his constitutional duty by nominating judges for courts is “ideologically driven.”
This might explain why Democrats now say the Supreme Court should remain divided in the same way—four justices appointed by Democratic presidents, four by Republicans—for the rest of Trump’s term. “I promise you that we will be united against any Supreme Court nominee that President Trump puts up,” said Democratic Senator Dianne Feinstein of California. “I promise you.”
Liberal commentators agree. “It would be completely decent, honorable and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee Trump names,’’ said the Americans for a Progressive Judiciary, a liberal think tank. “If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?”
I’m sure these words of principle enrage conservatives. I’m sure they believe that the Democrats’ allowing the high court to continue in its current hobbled state throughout Trump’s term is un-American and destructive to our country. In fact, these statements have already been roundly condemned on Fox News, with numerous pundits ripping at the Democratic Party (or Democrat Party) for allowing its thirst for partisan advantage to blind it to our constitutional principles. And if you’re a conservative, I hope you seethe at those statements.
Why? Because it exposes your grotesque hypocrisy.
You see, I lied. Feinstein never said anything about the Democrats refusing to confirm any Trump nominee for the next four years—that was actually Republican Senator John McCain of Arizona, in statements he made when most of the political world believed former Secretary of State Hillary Clinton was going to be president. As for the comment from the Americans for a Progressive Judiciary? I made up the name; as far as I can tell, no such organization exists. Instead, I was quoting the conservative publication The Federalist, which, once again, was writing at a time when almost no one believed Trump would win, to justify engaging in a blanket refusal to ever confirm any Clinton nominee.
Now if you’re a conservative who was angered by those statements when you thought they came from Democrats—and now that you know they were uttered by your partisan brethren, you’re scrambling to justify them—face facts: You are lying and self-deluded.
With the elevation of Samuel Alito to the Supreme Court (“the worst justice in history”©, as I’ve previously written), whose rulings often contain the same blatant hoop-jumping demonstrated by Grassley in justifying pure partisanship as a matter of constitutional principle, I gave up on the idea of my once-beloved Supreme Court as a deliberative body in which legal interpretations are weighted against constitutional precepts and precedent. Instead, I now accept it is just an apparatus of political parties.
I always know how Alito will rule; his decisions are amusing because I enjoy trying to predict what assertions of nonexistent fact he will employ in his arrogant effort to reach the outcome he desires. None of the other justices—conservative or liberal, past or present—are as flagrant in their use of the court to impose their political beliefs on the rest of us. At the very least, until Alito is gone, the Supreme Court is a partisan joke deserving of no respect, which for me is a horrifying thing that I could never have imagined I would say.
No doubt, Gorsuch would be a better judge than Alito (and so would my dog). Like Garland, he would bring some desperately needed jurisprudential intelligence, fairness and consistency to the court, regardless of what anyone may think of his decisions on a political basis. But none of that matters. There is a country to save.
The Republicans cannot be allowed to reap the rewards of unprincipled obstructionism that sets a precedent that will destroy the last remnant of our country’s constitutional credibility. They cannot wing it—saying that a court doesn’t have enough work to justify the number of judges it is supposed to have, or that a Democrat should not be allowed to have a judicial nominee confirmed in a fourth year or first year or a full term of a presidency—and just make up rules as they go along, undermining everything this country has stood for just to grab some short-term gain. There are no principles anymore; just as with Alito’s decisions, there are desired outcomes and an infinite number of rationalizations to help anti-American conservatives get there.
So what should the Democrats do? Fight. Recognize the nature of the other party. There is no longer reason; there is no longer fidelity to our history or to the founders’ intents; there is no longer compromise. Republicans cannot be allowed to benefit from their efforts to undermine the intent of the framers of our Constitution. (To give you an idea of how bad this could become if Democrats don’t fight, think of this: That conservative commentator writing for The Federalist who was justifying obstructing every Clinton nominee argued that Republicans, as an option, could constitutionally just let the Supreme Court die if it could be done without paying too high a political price. There is no limit to how far the Republicans may go.)
Will the Republicans use the “nuclear option,” which will allow them to override any attempt at a filibuster, making it so that a Supreme Court nominee needs only a majority vote? Let them. If Democratic senators won’t throw everything into stopping this nomination, regardless of the price, then they may as well pack it up and go home, because they have cowered and cringed their way into a government where governance has died, where party is more important than country.
The end game: Force Trump to re-nominate Garland. Filibuster every nominee until he does. I have no illusions that the Senate would accept Garland; the Republicans still have the majority. Then Trump will come in with another nominee, almost certainly Gorsuch. Yes, even under that scenario, the Republicans will gain a seat on the court; they would have anyway, even if they had considered Garland during the Obama administration, because the GOP had the Senate majority then too and would have voted him down. (Before the election, Democrats knew the price of a Trump victory could be that the Republicans would get to name the next Supreme Court justice, and enough of the anti-Clinton types chose to sit out or cast their vote for someone who could not win anyway. They have relinquished the right to object.)
So even though Garland would not have won a Senate confirmation vote, a precedent needs to be established: The Senate’s confirmation responsibilities under the Constitution are not a joke, are not something where absurd rationalizations that pass for smarts on Fox News can be used to circumvent history and precedent. Nominees must be given hearings and votes. And yes, if that means letting the Republicans blow up the filibuster, let them do it.
Then, when a Democratic president is in office, the Democrats control the Senate, and there is no filibuster, show the Republicans a real exercise in raw power: revive Franklin D. Roosevelt’s plan to pack the Supreme Court and fill it with the most liberal justices around. If the Republicans insist on turning the judiciary into a political plaything, play the roughest game of hardball they have ever seen.
In the New York Times Opinion Pages, Op-Ed Columnist David Leonhardt opines:
Why Democrats Should Oppose Neil Gorsuch
“It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was.
Republican leaders announced last March that they would not consider any nominee. They did so even though Barack Obama still had 10 months left in his term and even though other justices (including Anthony Kennedy) had been confirmed in a president’s final year.
The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy.
The change is terribly damaging for the country’s political system. It impedes the smooth functioning of the court and makes it a much more partisan institution.
Of course, the strategy also worked, and the flip from an Obama justice to a Trump justice will likely be the deciding factor in many of the most important cases in coming years.
So what can Democrats do?
First, they need to make sure that the stolen Supreme Court seat remains at the top of the public’s consciousness. When people hear the name “Neil Gorsuch,” as qualified as he may be, they should associate him with a constitutionally damaging power grab.
Second, Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.
Republicans still control the Senate, which means they can confirm Gorsuch if they decide to remove the filibuster during the nominating process. And so Democrats may not have the power to block the nomination.
But the only reason they should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.
Finally, the Democratic Party should begin planning its long-term strategy for the court, and that strategy needs to revolve around last year’s events. One option, for example, would be a plan first to deprive a Republican president of one nominee in coming years and second to offer a truce with Republicans.
I understand that all of these options sound aggressive and partisan, and it makes me deeply uncomfortable to make such an argument. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.”
In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style
By Adam Liptak January 31, 2017
WASHINGTON — A year ago, Judge Neil M. Gorsuch was midway down a ski slope when his cellphone rang. Justice Antonin Scalia, he was told, had died.
“I immediately lost what breath I had left,” Judge Gorsuch said in a speech two months later. “And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”
President Trump, in nominating Judge Gorsuch to the Supreme Court, has chosen a judge who not only admires the justice he would replace but also in many ways resembles him. He shares Justice Scalia’s legal philosophy, talent for vivid writing and love of the outdoors.
Mr. Trump’s selection of Judge Gorsuch was nonetheless a bit of a surprise, coming from someone who had campaigned as a Washington outsider. Judge Gorsuch has deep roots in the city and the establishment Mr. Trump often criticized.
His mother was a high-level official in the Reagan administration. He spent part of his childhood in Washington and practiced law here for a decade, at a prominent law firm and in the Justice Department. And, like all of the current justices, he is a product of the Ivy League, having attended college at Columbia and law school at Harvard.
(I have a question, who in their right mind would stop skiing halfway down the slope to answer a cell phone, Good Golly?)