Home » 2017 » February

Monthly Archives: February 2017

Neil Gorsuch and whether the personal is jurisprudential

Have LGBT advocacy groups such as Lambda Legal and the Human Rights Commission been jumping the gun in their opposition to Judge Neil Gorsuch’s nomination to the Supreme Court, because Gorsuch has acted in ways that suggest he does not share Justice Antonin Scalia’s hostility to the LGBT community. Consider the evidence:

  1. Having hired two openly gay clerks during his tenure on the Tenth Circuit Court of Appeals.
  2. Being supportive of one of those clerks when he revealed his sexual orientation to the judge.
  3. Living in a liberal Colorado community and attending a gay-friendly Episcopal church.
  4. Displaying no indication, in his record on the Tenth Circuit, of overt hostility to LGBT rights.

There is much to be said for a nominee who is not prone to ranting about the “homosexual agenda,” and who has numerous clerks willing to speak to his independence and open-mindedness. Those prone to optimism might look to these data points as support for hope that on LGBT issues, Gorsuch will bear greater resemblance to Justice Anthony Kennedy, for whom Gorsuch clerked, than Justice Scalia, whose brand of originalism Gorsuch subscribes to. (Judicial politics scholars offer contrasting predictions of where a Justice Gorsuch would fall on the ideological spectrum.) But even if we accept these supportive characterizations of Judge Gorsuch, there are still compelling reasons for LGBT advocacy groups to be concerned.

  • The test of one’s commitment to rights is not whether you’d recognize those rights when claimed by people close to you. It’s whether you’d extend those rights to people you’ve never met and will never meet. It speaks well of Gorsuch that he has been supportive of gay work associates, and that he and his family did not treat a church’s LGBT-friendliness as a deal-breaker. But if his jurisprudence devalues marriages and enables states to treat LGBT individuals as second-class citizens, these examples of personal goodwill will offer little consolation to disfavored people who lack any personal tie to Gorsuch. (Remember, too, that Mary Cheney’s sexual orientation had no apparent impact on the gay-friendliness of George W. Bush’s policy agenda.)
  • It would be trivially easy for a Justice Gorsuch to say that while he personally favors LGBT rights, and would support them were he a legislator, his role on the bench is to interpret the law to the best of his ability, and not to enact his personal policy preferences. It’s a claim that plays well both in the Senate Judiciary Committee hearing room and the court of public opinion. Even legal realists who claim that this formalism is impossible to achieve in practice do not oppose it from a normative perspective. So even if the claims presented in the Times article reflect a lack of hostility to LGBT rights, the only inference one can clearly draw is that Gorsuch’s opinions will probably be devoid of Scalia-esque rhetorical salvos against gay rights and their advocates.
  • Gorsuch was part of the Tenth Circuit panel that held, in Hobby Lobby Stores v. Sebelius, that closely held for-profit corporations could legally claim, under the 1993 Religious Freedom Restoration Act, an exception from the Affordable Care Act’s requirement that their health insurance plans include contraception coverage. It hardly requires a great leap of logic to think that the vision of religious liberty espoused in Hobby Lobby would extend to cover legislation allowing for a religion-based exception to laws banning discrimination based on sexual orientation.

In short, those concerned about LGBT rights should look not to Gorsuch’s heart, but to his jurisprudential approach. That approach should give advocates cause for concern, even as they consider the poor odds that the current president and Senate majority propose a nominee whom LGBT advocates would prefer.

Advertisements

Summarizing (others’) unsolicited advice on Judge Gorsuch, Part II

(Part I can be found here.)

Radley Balko (Washington Post): Democrats have compelling reasons to be angry about Garland’s treatment, but they could do far worse than Gorsuch, whose unwillingness to defer to agency interpretations of federal statutes suggests that he’ll resist Trump’s power grabs. If you think Trump represents a singular threat to democracy, then you’d be foolish to reject someone, however conservative, who has a track record of resisting executive overreach. And supporting Gorsuch would make all-out resistance to a second Trump nomination more credible; moderates, in Balko’s view, won’t respond well to a blockade. If you want to send Trump a message, Attorney General nominee Jeff Sessions would be a more appropriate target.

My assessment: Gorsuch has indeed displayed libertarian leanings on some issues (e.g., Fourth Amendment) that not only would make Democrats happy, but would make them happier than Garland would have. But the problem with counting on Gorsuch to push back against executive power is that the cases cited as evidence come predominantly from the Obama presidency. Will Gorsuch be equally willing to push back against Trump’s assertions of executive authority, or to refuse to defer to statutory interpretation performed by Trump’s appointees?  Although I’d agree with Balko that Sessions merits opprobrium more than does Gorsuch, it’s not as though Democrats have to choose between obstructing Gorsuch and voting against Sessions; there are plenty of no votes to go around.

Noah Feldman (Bloomberg): Opposing Gorsuch would be foolish. He is as qualified a nominee as you’re going to find, and while he’s conservative, he’s not a bomb-thrower. Indeed, his lack of ideological rigidity suggests that he might be capable of moving toward the center, as did Justice Kennedy, for whom Gorsuch clerked. “[I]t would be hard for Gorsuch to call for, say, overturning Roe v. Wade while sitting with his old boss, who rejected that path in the Casey v. Planned Parenthood case.” A scorched-earth campaign portraying Gorsuch as an extremist, however, might push him further right.

My assessment: An opposition campaign that took liberties with its description of Gorsuch’s jurisprudence, or that searched his personal life for molehills to blow up into mountains, could indeed embitter the nominee. And Gorsuch’s clerks, of varying ideological leanings, have spoken of his open-mindedness. But Senate Democrats could make clear that their beef is not with Gorsuch personally, but with Mitch McConnell and Donald Trump. Given his prior outspokenness about how both Garland and John Roberts had been treated by the Senate during their appointments to the Courts of Appeals, I suspect that Gorsuch will recognize that the battle is not about him per se, but instead concerns primarily the ongoing partisan struggle over control of the one branch of the national government that is expected to stay clear of partisanship.

 

Summarizing (others’) unsolicited advice on Judge Gorsuch, Part I

So it’s been two days since Judge Neil Gorsuch was appointed to inherit Mitch McConnell’s stolen property, i.e., the ninth seat on the Supreme Court. Apparently, I was not alone in offering unsolicited strategic advice to Senate Democrats.  Here are some examples from more visible analysts, with paraphrases of their advice followed by my assessments. (I’ve broken the original post into smaller, more digestible chunks.)

Steven Pearlstein (Washington Monthly): Obstructing Gorsuch is bad because it undercuts the Democrats’ image as the party that actually cares about governance, as well the party’s claim that the Supreme Court needs nine justices to function effectively. It also will induce wavering Republicans to side with their party in the face of partisan obstruction, instead of defecting from Team Trump on issues where Democrats might be able to garner their support. And even if a blockage forced Gorsuch’s withdrawal, the result would be a nominee whom Democrats would like much less. Rather than obstruct, Democrats should condition their shelving the filibuster on the adoption of a resolution that would bar Trump from filling any vacancies that might occur during the last year of his term. Republicans could demonstrate that their justification for blocking Merrick Garland wasn’t spurious and self-serving, and Democrats could still voice their opposition to Gorsuch by voting against the nomination.

My assessment:

  1. The argument about preserving the brand has some merit, but the party has a greater imperative right now when it comes to brand association. The Democratic Party has the image of a group that brings textbooks to a gunfight and can’t figure out why the folks with the guns keep winning. The party base is demanding payback for what happened to Garland, and given that priority, it will not treat full-tilt opposition to Gorsuch as indicative of the party’s lack of interest in governance.
  2. Treating Gorsuch as business as usual will earn Senate Democrats approximately zero votes on Obamacare, environmental protection, or any other policy priority. Republican senators have more much to fear from primary challenges, especially given their popularity ratings relative to Trump’s, than they do from failing to extend an olive branch to their Democratic colleagues.
  3. As for the proposed alternative to the filibuster, why would the Senate of 2019 feel compelled to honor a resolution passed in 2017, especially if the Republican majority were to grow after the 2018 election? The Senate could simply pass a new resolution, and Democrats would have no leverage to stop it. And if Senate Democrats think that Mitch McConnell and Orrin Hatch behaved disreputably in stonewalling the Garland nomination, why would they trust them to uphold the proposed deal?

Garrett Epps (The Atlantic): He’s agnostic on whether Democrats should filibuster, but he does think their (and Republicans’) questioning during the hearings should center on Gorsuch’s commitment to democracy in the face of the Trump administration’s attacks on it. Topics to be featured would include due process protections for immigrants; protections for free speech and free press in times of crisis; restraints on executive power; and the dividing line between permissible voting regulations and voter suppression.

My assessment: Whether or not Democrats filibuster, they will not possess the power to prevent hearings. So why not devote the hearings to something meaningful, given the present climate? The lines of inquiry posed by Epps will provide greater insight into Gorsuch’s outlook than would the tired two-step over abortion,  where senators can’t ask directly about Roe  and nominees won’t answer forthrightly. (It’s not as if we don’t already know Gorsuch’s position on Roe.) They also allow for senators to move beyond the cliched and not-terribly-informative debates over judicial activism and judicial restraint. Most important, they enable a discussion that properly places legal questions in a political context, but without defining that context predominantly as partisan.