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| Neil Gorsuch |
Minority status in Congress is not an enviable spot for any of the two major political parties in the U.S. -- but it’s definitely not so when the former has lost the White House and Congress in a brittle, brutal, and near punishing trouncing by a non-politician with a theatrical flair, and whose rallies seemed more like Barnum and Bailey than the limits of political theater have previously allowed.
Now comes the possible bruising fight for the man, some have called, “Scalia without a scowl”, the affable, and boyishly handsome, Neil Gorsuch, whom everyone has praised as being a clear writer with a literate flair for judicial writing. While filling the vacuum may be the heartfelt desire of President Trump, others concerned that the Denver native might go postal on social issues, like abortion, women’s rights and gay rights, aren’t so sure.
They don’t have too much to go on as this Ivy Leaguer’s writings have not indicated too much beyond showing him as a moderate conservative, in most every case, not a radical.
Gorsuch self identifies, as a constitutional constructionist - that is one who hews closely to the original intent of the framers of this august document. This is very much in the tradition of Scalia, and is not an automatic disqualifier, but some say that moving away from that “creates” policy influenced by politics, pointing to the example of the Warren Court.
The only whiff of scandal was decades ago, with his mother’s role as the Environmental Protection Agency’s head. Ann Gorsuch’s tenure as the first administrator, and its first female leader, was one marked by, noted The Washington Post, “sharp budget cuts, rifts with career EPA employees, a steep decline in cases filed against polluters and a scandal over the mismanagement of the Superfund cleanup program that ultimately led to her resignation in 1983.”
There are still some that say; it was asked for by President Ronald Reagan. Of course, one hardly wishes the sins of the mother to be revisited on the son.
What has been examined by concerned liberals is his support for the Hobby Lobby decision decision decision which says that business owners do not have to violate their religious beliefs to fulfill the law - in this case the contraceptive mandate of the Affordable Care Act. Seen as a landmark victory by those that support religious freedom the decision also affected another case with The Little Sisters of the Poor, a Roman Catholic women's religious order.
For the former he wrote: “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.” And, for the latter he wrote, ““When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”
What is at stake, say those who favor reproductive rights is a broad reading of the Religious Freedom Restoration Act, that might threaten future cases, or the bete-noire law of Roe V. Wade. The Trump administration has a fierce advocate in the pro-life movement especially with Mike Pence, the Vice-President, even though President Trump’s views have evolved against abortion, over the years.
While much of his work in Denver has been prosaic -- insurance and contract work seem to dominate - there is one area that he will not compromise on: a strong belief against the court paying deference to regulatory agencies. As The Denver Post noted, “Gorsuch has been a leader in the conservative rethinking of deference to agencies, arguing that too often they exercise executive, legislative and judicial functions at once — and that the Constitution aims to prevent this dangerous concentration of power.”
With a concentration by other cabinet members and officials, state’s rights, once the rallying call of anti-civil rights advocates, it has now has taken on new usage, despite antecedents.
Gorsuch may also pull for state’s rights and as the Post noted, “even when Congress has failed to push states out of regulatory fields, the courts have sometimes held that they were treading on federal turf."
In a doctrine called the “dormant” or “negative” commerce clause, it divides conservatives. Justice Clarence Thomas,who is a skeptic, and so was Justice Scalia. But their opinions have not prevailed, and Justice Samuel Alito has defended it, as has Gorsuch.
Some of his dissensions will prove worrisome to some -- for example he dissented in a temporary injunction against a judge who wanted a stay in funding for Planned Parenthood, after a series of videos by purported journalists, that were heavily edited to reflect the sale of fetal tissue.
In light of the police shootings, mainly involving black men, and videotapes of police behavior, Gorsuch may prove to be a “law and order” man, In a case where a man was tasered after reaching into his pocket, several times. He wrote the prevailing opinion where he said, “The situation at the time the officer fired his taser was … replete with uncertainty and a reasonable officer in his shoes could have worried he faced imminent danger from a lethal weapon. A reasonable officer need not await the glint of steel before taking self-protective action.”
There is a certain ambiguity in his stance towards immigration, and while in a previous case he expressed concern about due process for an immigrant, he also took the chance to look at how the case reflected on agency interpretations of the law, that he feels are appropriate for the court.
Of course the confirmation of any Supreme Court nominee will create intense examination, especially of one so young, as Gorsuch, whose lifetime tenure can have a myriad effect on future cases before the Court.
While the Democrats, some have said, are contemplating a filibuster, Trump has instructed the Senate to “go nuclear” and make rule changes for an up and down vote. Yet, the Dems are unlikely to take even this relatively mild appointment lying down as they saw Republicans mount a heated campaign citing, mis-citing, history with President Obama’s nominee Merrick Garland for the Scalia spot.
They misread history and said that it was too late in the Obama term to confirm Garland. In fact, they were wrong, with some notable precedents: Justice Louis D. Brandeis, nominated by Woodrow Wilson, was confirmed five months before the presidential elections, in June of 1916. And, perhaps most speedily, President Benjamin Harrison’s nominee George Shiras was confirmed four months before the 1892 election..
Leading the opposition to Garland was Sen, Mitch McConnell, the majority leader who said, that the “voters should have a say”, in filling the vacancy. By this he meant that the voters should elect a Republican to the presidency so that he could nominate one of his own, not the electorate.
Despite defectors such as then Senator Mark Kirk, who broke rank and asked for an up and down vote, the majority stood firm, having their wish fulfilled that Hillary Clinton would be defeated. Now they have that chance.
In return, the Dems could resurrect what they did to the Robert Bork nomination in 1987 where they mounted a campaign to discredit and defeat him with 54 votes, when Reagan wanted him to fulfill the Powell vacancy.
Now comes the possible bruising fight for the man, some have called, “Scalia without a scowl”, the affable, and boyishly handsome, Neil Gorsuch, whom everyone has praised as being a clear writer with a literate flair for judicial writing. While filling the vacuum may be the heartfelt desire of President Trump, others concerned that the Denver native might go postal on social issues, like abortion, women’s rights and gay rights, aren’t so sure.
They don’t have too much to go on as this Ivy Leaguer’s writings have not indicated too much beyond showing him as a moderate conservative, in most every case, not a radical.
Gorsuch self identifies, as a constitutional constructionist - that is one who hews closely to the original intent of the framers of this august document. This is very much in the tradition of Scalia, and is not an automatic disqualifier, but some say that moving away from that “creates” policy influenced by politics, pointing to the example of the Warren Court.
The only whiff of scandal was decades ago, with his mother’s role as the Environmental Protection Agency’s head. Ann Gorsuch’s tenure as the first administrator, and its first female leader, was one marked by, noted The Washington Post, “sharp budget cuts, rifts with career EPA employees, a steep decline in cases filed against polluters and a scandal over the mismanagement of the Superfund cleanup program that ultimately led to her resignation in 1983.”
There are still some that say; it was asked for by President Ronald Reagan. Of course, one hardly wishes the sins of the mother to be revisited on the son.
What has been examined by concerned liberals is his support for the Hobby Lobby decision decision decision which says that business owners do not have to violate their religious beliefs to fulfill the law - in this case the contraceptive mandate of the Affordable Care Act. Seen as a landmark victory by those that support religious freedom the decision also affected another case with The Little Sisters of the Poor, a Roman Catholic women's religious order.
For the former he wrote: “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.” And, for the latter he wrote, ““When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”
What is at stake, say those who favor reproductive rights is a broad reading of the Religious Freedom Restoration Act, that might threaten future cases, or the bete-noire law of Roe V. Wade. The Trump administration has a fierce advocate in the pro-life movement especially with Mike Pence, the Vice-President, even though President Trump’s views have evolved against abortion, over the years.
While much of his work in Denver has been prosaic -- insurance and contract work seem to dominate - there is one area that he will not compromise on: a strong belief against the court paying deference to regulatory agencies. As The Denver Post noted, “Gorsuch has been a leader in the conservative rethinking of deference to agencies, arguing that too often they exercise executive, legislative and judicial functions at once — and that the Constitution aims to prevent this dangerous concentration of power.”
With a concentration by other cabinet members and officials, state’s rights, once the rallying call of anti-civil rights advocates, it has now has taken on new usage, despite antecedents.
Gorsuch may also pull for state’s rights and as the Post noted, “even when Congress has failed to push states out of regulatory fields, the courts have sometimes held that they were treading on federal turf."
In a doctrine called the “dormant” or “negative” commerce clause, it divides conservatives. Justice Clarence Thomas,who is a skeptic, and so was Justice Scalia. But their opinions have not prevailed, and Justice Samuel Alito has defended it, as has Gorsuch.
Some of his dissensions will prove worrisome to some -- for example he dissented in a temporary injunction against a judge who wanted a stay in funding for Planned Parenthood, after a series of videos by purported journalists, that were heavily edited to reflect the sale of fetal tissue.
In light of the police shootings, mainly involving black men, and videotapes of police behavior, Gorsuch may prove to be a “law and order” man, In a case where a man was tasered after reaching into his pocket, several times. He wrote the prevailing opinion where he said, “The situation at the time the officer fired his taser was … replete with uncertainty and a reasonable officer in his shoes could have worried he faced imminent danger from a lethal weapon. A reasonable officer need not await the glint of steel before taking self-protective action.”
There is a certain ambiguity in his stance towards immigration, and while in a previous case he expressed concern about due process for an immigrant, he also took the chance to look at how the case reflected on agency interpretations of the law, that he feels are appropriate for the court.
Of course the confirmation of any Supreme Court nominee will create intense examination, especially of one so young, as Gorsuch, whose lifetime tenure can have a myriad effect on future cases before the Court.
While the Democrats, some have said, are contemplating a filibuster, Trump has instructed the Senate to “go nuclear” and make rule changes for an up and down vote. Yet, the Dems are unlikely to take even this relatively mild appointment lying down as they saw Republicans mount a heated campaign citing, mis-citing, history with President Obama’s nominee Merrick Garland for the Scalia spot.
They misread history and said that it was too late in the Obama term to confirm Garland. In fact, they were wrong, with some notable precedents: Justice Louis D. Brandeis, nominated by Woodrow Wilson, was confirmed five months before the presidential elections, in June of 1916. And, perhaps most speedily, President Benjamin Harrison’s nominee George Shiras was confirmed four months before the 1892 election..
Leading the opposition to Garland was Sen, Mitch McConnell, the majority leader who said, that the “voters should have a say”, in filling the vacancy. By this he meant that the voters should elect a Republican to the presidency so that he could nominate one of his own, not the electorate.
Despite defectors such as then Senator Mark Kirk, who broke rank and asked for an up and down vote, the majority stood firm, having their wish fulfilled that Hillary Clinton would be defeated. Now they have that chance.
In return, the Dems could resurrect what they did to the Robert Bork nomination in 1987 where they mounted a campaign to discredit and defeat him with 54 votes, when Reagan wanted him to fulfill the Powell vacancy.
The late Sen. Edward Kennedy, within 45 minutes of the announcement from the White House, said:
“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizen.”
Things got tense with ongoing considerations by women’s groups and civil rights group, like the NAACP, (Bork was opposed to the Warren and Burger courts action supporting civil rights) and said so, even opposing voting rights for blacks.
“Pro-choice legal groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he be named to the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. These groups also claimed that Bork's second marriage to a former Roman Catholic nun would allow her to influence his decisions on the abortion issue,.” going from bad to worse.
With Bork, it could be argued this long record of opposition to civil rights for blacks, contraceptives and other liberal touchstones was fodder for the opposition. It is less so for the clean shaven, and clean cut Gorsuch, whose record is less harsh, and who looks less menacing than the burly, scraggly bearded Bork. At the time,the TV critic at The Washington Post, when he viewed the hearings, said that "He looked and talked like a man who would throw the book at you — and maybe the whole country."
But managing a well-financed campaign even without the imprimatur, and political genius, of Kennedy might well show the Trump administration, that all is not to be had in the first 100 days.
The confirmation is a lengthy process and could take 10 weeks, or more, and while some say April, that would be a longshot. For Sonia Sotomayor it was 10 months and 87 days before her confirmation. Time marches on.Update: On Wednesday, in response to President Trump saying that the Washington state judge who stayed his travel ban, was, in his estimation, a "so-called judge" in a tweet. Gorsuch, in turn, told Sen. Richard Blumenthal that the president's remarks were "demoralizing and disheartening." Trump also tweeted that the senator lied about his service in Vietnam, when he actually served in the U.S. These statements were made in 2010, which he later apologized for, saying that he misspoke. Trump's sideswipe, said Blumenthal, was not about him, but that he revealed the Gorsuch reaction in a private conversation. White House spokesperson, Sean Spicer later said that Gorsuch was not talking about any specific case. Reaction has been fraught with rumor and innuendo, with some saying that the reaction was calculated for an intentional leak, or that he favors an independent judiciary. There has been no further comment from Judge Gorsuch..
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