The Gorsuch Nomination

As I have previously written, the most damning argument against Judge Gorsuch’s confirmation has nothing to do with his bona fides, which are impressive. It is the inescapable fact that his elevation to the Supreme Court will be illegitimate–the result of a very dangerous and cynical misuse of political power.

The Republicans’ refusal to afford Merrick Garland a hearing has been widely criticised as blatantly partisan, so I nearly fell off the treadmill yesterday morning during my workout, as I watched an interview with Lindsey Graham. Senator Graham praised Judge Gorsuch and rattled off his qualifications; then he opined–with no hint of irony–that failure to confirm him would be “political” and thus unprincipled.

Unfortunately, those conducting the interview failed to ask the obvious follow-up question: if failure to approve Gorsuch would be “playing politics,” what the hell was failure to even consider Garland?

The hypocrisy is breathtaking.

But what about Judge Gorsuch himself? His willingness–even eagerness–to fill a seat that will inevitably be seen as stolen is understandable; it’s the Supreme Court, after all. He is clearly highly intelligent; his academic background and professional experience are exemplary. His opinions–whether we agree with them or not–are clearly within the broad mainstream of the judiciary.

The two areas that trouble me are his professed version of originalism and his ambiguous  approach to substantive due process.

True “originalism” comes in a number of respectable versions, but over the past couple of decades, the term has become code for “conservative in the mold of Scalia.”  As Judge Posner (himself a conservative jurist) has persuasively noted, Antonin Scalia’s self-described originalism was incoherent and conveniently invoked. I don’t know any legal scholars who do not begin their analyses by looking to the Constitutional text and its historical meaning–and I don’t know any credible legal authority who would agree with a nice man I once debated, who insisted that “free speech” applied only to oral communications, not newspapers, books or other non-spoken transmittals of ideas. (“It says speech.”)

I often introduce the subject of original intent to my classes by asking “So, what did James Madison think about porn on the internet?” Usually, they laugh–and after we acknowledge that James Madison could never have envisioned the Internet, we consider how the Founders’ clear intent to protect the expression and exchange of ideas from government censorship should be applied to “facts on the ground” that those Founders could never have foreseen. In these situations, people of good will–all of whom believe they are honoring the principles the Founders intended to protect–can come to different conclusions about what fidelity to original intent requires.

I’d be very interested to know how Judge Gorsuch defines his originalism.

The Judge’s approach to substantive due process (sometimes called the Constitutional right to privacy) is unclear. Unlike our conversational use of the term, the constitutional right to privacy is shorthand for the individual’s right to self-determination, the doctrine that identifies fundamental individual rights that government cannot infringe without a compelling reason.

As the Court put it in one case, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Substantive due process requires government to respect the right of individuals to hold their own political and religious beliefs, define their own life’s meaning, choose their own life partners and control their own procreation. It defines certain areas of citizens’ lives as “off limits” to government. Our current privacy jurisprudence began when the Court struck down a Connecticut law prohibiting married couples from using contraception; the Court held that such intimate personal decisions were none of the government’s business.

Scalia was a ferocious critic of substantive due process; he had a crabbed, authoritarian view of individual liberty. (In Lawrence v. Texas, his acerbic dissent made clear his belief that government has the authority to outlaw fornication and masturbation.)

Would Judge Gorsuch agree? Will he follow Scalia, or respect existing legal precedents that protect our “intimate” behaviors and relationships from legislative assault?

Assuming Judge Gorsuch is confirmed to the “stolen seat” on the Court, his approach to originalism and substantive due process will be critically important. It would be nice to know his positions on those fundamental issues before the Senate votes.


  1. What concerns me about Judge Gorsuch is not his “originalism” nor his past rulings. It is his lack of principle. It is obvious that he does not care about HOW he got the seat on the Supreme Court, but only that HE got it. The HOW makes him no better than a fence taking in stolen goods for re-sale.

  2. This thought has frequently crossed my mind about Gorsuch’s nomination:

    If he were an upstanding person who truly believed that our government should actually follow the law of our land and believed that congress should respect the voters, then he would speak out against McConnell’s block of the Dem SCOTUS candidate and state that Garland truly is the candidate who should receive a proper hearing and be considered.

    Obviously, Gorsuch has no problem with attempting to obtain a seat that has been stolen.

    This is how I see this nomination and, again, this has given the SCOTUS a black eye that it will not be able to erase for decades, or possibly longer. McConnell has done permanent damage to the respect the SCOTUS held.

  3. Has Merrick Garland’s name ever been LEGALLY removed as SCOTUS nominee (no matter which president made the nomination) when the Constitutionally REQUIRED hearing was denied by McConnell and the Republican Senate? As has been pointed out time and time again; the hearing was and is required (as we are witnessing with Gorsuch), approval could have been denied had they held the hearing.

    As for me; my thoughts return to the fascist club Gorsuch founded and led while in college. Those views are inbred and hard-held as we are witnessing with the Trump fascist/White Nationalist cabinet members and his sitting family members within OUR White House and OUR government. Who the hell is our First Lady and where is she? That should be a much simpler question to answer than the qualifications of Gorsuch who should NOT be considered for SCOTUS until the issue of Merrick Garland has been settled.

    And now we have Nunes publicly announcing his strong support of Trump to prove the House Intelligence Committee is NOT qualified to perform the investigation on some who are among those being investigated. Another distraction from Trumpcare vote today and the Gorsuch hearings? The world is laughing at the United States asylum being run by the inmates; our allies are rethinking all trust in this government and our enemies are keeping us in their sights.

    There is much more to this Gorsuch appointment than the appointment itself. Back to the wise counsel of W.C. Fields; “If you can’t dazzle them with brilliance, baffle them with bullshit!”

    The words “what next” regarding the Trump administration have stopped being a question and have become an almost daily redundancy because we can count on more bullshit today and yet more tomorrow. Betting on those odds make me want to run out and buy a lottery ticket.

  4. Focusing on his record and on what we can deduce of his philosophy, in addition to what already has been said, I would add my concern that he does not fully recognize and support the critical role of the Supreme Court in protecting civil liberties. Supporting and referring to existing law , by definition, relies on the political process which, ultimately, is the rule of the majority. Relying on courts, and the Supreme Court in particular, is the way that we, as a society, protect the rights of minorities when the political/legislative path is, by definition, not available to them. They CAN’T vote to change the law (as Gorsuch has suggested in numerous decisions) because they don’t have the votes to do so! Sometimes the role of the Court is to lead rather than to follow the law. And that does NOT make it a dangerously “activist” Court. It makes it a Court that supports our Constitution.

  5. Joanne:

    “As for me; my thoughts return to the fascist club Gorsuch founded and led while in college. Those views are inbred and hard-held as we are witnessing with the Trump fascist/White Nationalist cabinet members and his sitting family members within OUR White House and OUR government.”

    Me too.

  6. One thing we need to remember is that the voters rewarded the Republicans for their blatant disregard of the Constitution. The Garland nomination was not the first time they have ignored Constitutional principles. The fight over the debt ceiling, which authorizes payment for debt already owed, is a clear violation of Section 4 of the 14th Amendment. The Congress may soon refuse once again to raise the debt ceiling.

    We the people have only one recourse when Congress tramples the Constitution by legislative inaction. That is to vote them out of office. So far, we the people seem disinterested.

  7. Regarding Scalia’s version of “originalism,” he was just voting his religion. Whenever I see a comment saying that he was the smartest one on the court, I wonder if the reference was to a tennis court. He used his acerbic comments to distract from the fact that he had no respect for other people or the Constitution.

  8. Essay and Comments say everything there is to be said on the topic of this Court nominee. In the end, his acceptance of the nomination shows two things — he doesn’t know how the Constitution works, and he is an unethical person to accept the nomination.

  9. Peggy,

    “That is to vote them out of office. So far, we the people seem disinterested.”

    Who said there is going to be a vote? Who is going to want the responsibility of cleaning up the mess by the time the elections come around in 2018? If the Constitution is continually trampled, what guarantee is there that we will have any semblance of a democracy by then?

  10. I wrote my representative (Todd Young) and asked him to vote against Gorsuch’s appointment because it will always be stained with the senate’s refusal to consider Merrick Garland’s nomination and with the reputation of Mr. Trump who is currently pretending to be president of the US. I said it was unfair to him (Gorsuch) to approve his appointment.

    I received a form letter email response from Young saying he takes his responsibilities seriously when considering Mr. Gorsuch’s qualifications, blah, blah. The system is hard-wired for alt right control.

  11. We have a fascist government FIRMLY in place. You can’t blame Lindsey Graham for his actions. The Tea Party has announced, a day or so ago, that they will run candidates in the next election against Republicans who are not going along 100% with Trump’s announced agenda.

    This movement is not STATIC it is DYNAMIC. It’s continually on the move. There is no EFFECTIVE RESISTANCE nor will there be with the current mindset that now exists in the U.S.

  12. Who said our Constitution is permanent? That’s just a myth. The German constitution was gone, for all effects, once Adolph Hitler was in control.

    Carrying this line of reasoning further, I might suggest reading “Myth of the State” by Ernst Cassirer.

  13. Gorsuch is a sharp lawyer who has donned the robes and will follow Scalia’s right wing approach to judgment in his own approach to framing of facts (see Hobby Lobby) to suit his prejudices, however much he claims to be unprejudiced and independent. He is an attractive candidate who smiles at the right times and has many endearing homilies and other folksey tales to tell us the unwashed masses, but beware! Scalia smiled at the right times too before coming down with his right wing draconian and sometimes obvious religious holdings under the cover of originalism, a phony disguise for ignoring substantive due process and other long held doctrines embedded in American jurisprudence. Interpretation of the Constitution, in my view, cannot be legitimately had via such a phony doctrine since, among other things, as a literal proposition jet planes and computers were unknown to Jefferson and Madison. I think it is an impossible task for Supreme Court justices or anyone else to somehow guess how Jefferson and Madison would have ruled in cases where science and innovation have drastically changed the fact situations up for review, and consider “originalism” to be an excuse rather than a rational tool for interpretation of facts and law under the Constitution. As for Roe, good luck!

  14. The unfortunate reality, at this time, after a PBS (political body scan) of the head of the “body politic,” is that we are VERY CLOSE TO BEING BRAIN DEAD here in the U.S.

  15. One thing that can be confidently asserted about the Constitution is that it assumes members of government putting the good of the country above all else. It was confident in that because of faith in democracy; that the electorate would be well enough informed and educated, on the average, to only elect such people.

    What’s threatened today is not the details but the the basic assumption supporting the entire document. Freedom of speech was a fine and practical timber until fake news. News delivered so powerfully and pervasively that it consumes culture and so blatantly false and self serving that it is embraced without thought as religion by enough people to carry elections.

    Now the concept of America and freedom is shown to be inadequate to protect the rights of the governed.

    Now what Judge Gorsuch?

  16. It is interesting that some cling to “Originalism” as if some how they have performed a Vulcan Mind Meld with the authors of the Constitution. Even with all the authors writings at the time, they could not predict the future. They lived in their own time and space. At the time the constitution was written there were no rail roads, radio communication, etc. The authors certainly approved of slavery. There is nearly a religious fervor and fanaticism in turning our leaders back then in late 18th Century into some type of apostles, endowed with near super natural abilities. “Originalism” seems to require some purification ritual.

    So what exactly is the Constitution?? It sets forth rules, regulations, a method of governance. It was not static since amendments were permitted. “We, the people of the United States”, would appear to be inclusive, but slaves could not vote, and neither could women.

    IMHO, I do not believe the Constitution was meant to be a static document trapped in the 18th Century rather it was meant to be flexible.

  17. Louie – I couldn’t have said it better myself. If we follow the originalist theory to its dry logical extreme, we would still be bleeding people for the ague and other respiratory diseases, as was done with George Washington which doubtless contributed to his death in December, 1799, which denied his presence into the 19th century. Sudden thought – perhaps the underpinnings of originalism help explain modern day aversion to beliefs in hard and social sciences as well as in pollution does not cause environmental damage, vaccines are toxic etc.

  18. While perusing the Constitution seeking a basis for my earlier question regarding the LEGAL removal of Garland as SCOTUS nominee prior to accepting the Gorsuch nomination, I ran across an interesting tidbit I was unaware of. Apparently many government officials have skimmed past this Congressional requirement.

    Article I, Section 8, paragraph 8; “To promote the Progress of Science and useful Arts, by securing for limited Time and to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    Interesting, considering the entire Republican party denies the sciences rather than promoting them and Trump is cutting funds to the arts. Almost as interesting as skirting around the section in Amendment 1, which states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,…” by using religion to enact laws which protects some religions and not others. I got too bored by Gorsuch’s non-responsive or one-size-fits-all responses to watch much of the hearing; was he confronted with Amendment 1 issues? If so; what were his responses?

  19. Gorsuch was nominated for the reasons Tangerine Man said. It’s not for his legal scholarship or qualifications–it’s because he is in the extreme right. He’s a good actor, too, dodging questions that would disclose his extreme views, his pro-corporation and big business bias, his anti-trial lawyer and his anti-womens’ rights positions. The mere sight of his smug face, and his little wifey’s Holy Spirit pendant hanging out of her blouse, make my stomach hurt.

  20. Snopes says Gorsuch did NOT found a fascist club at Georgetown Prep High School, not the college.

  21. Gorsuch on SCOTUS will be the only Protestant! The far Right, composed of many socially conservative and fundamentalist Protestants has no representatives on most social issues. 5 Roman Catholics, 3 Jews and 1 Episcopalian is a mixed bag, except for, perhaps abortion and other rights of women. How the pendulum has swung from centuries of anti-Catholic and anti-Semitic organizations including KKK! One Catholic president, no Jewish president. No Baptists, Methodists, Presidents, secularists on SCOTUS presently. Maybe one of the Jews. And, I suspect, a lot of ‘nones’ in the White House including the biblically illiterate POTUS. Is the Establishment Clause safe?

  22. I believe Snopes said they could not prove nor disprove the accusation. Snopes says there was no club registered, but there may have been a club.

    About porn on the internet for our founding fathers, I ran into this awhile back and it just absolutely slays me and my sense of humor: Don’t let the tiny url throw you. This is serious stuff and the original url was 308 characters.

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