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

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.

 

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