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Gorsuch is a well-credentialed conservative — so what happens next?

REUTERS/Kevin Lamarque
Neil Gorsuch speaking after President Trump nominated him to be an associate justice of the U.S. Supreme Court.

I don’t like to parrot the conventional wisdom, and I’m also afraid we might all be defining deviancy down, but it did seem that President Trump had a very good evening, both with his relatively bland, not-really-very obnoxious or self-obsessed performance at the classy rollout event for his nomination of Judge Neil Gorsuch to fill the Scalia vacancy on Supreme Court and with the choice itself.

Gorsuch looked good, sounded good, has impeccable academic credentials (degrees from Harvard, Oxford and Columbia), clerkships with two respected Supreme Court justices, and so far as I have yet heard has conducted himself with dignity and class during his career so far. One of his mentors, Justice Anthony Kennedy, is the most moderate of the current Republican justices.

Yes, Gorsuch apparently is a solid conservative, although he apparently has never written on the key issues surrounding abortion. He is described as Scalia-like in his originalist attitude toward the Constitution.

I’m not an originalist, and I don’t think that’s what the country needs. But those old arguments won’t keep Gorsuch off the court, and will probably generally turn into mostly conservative policy outcomes. (Although a hardheaded originalist, like Scalia, sometimes ended up voting with the liberals for originalist reasons.)

Nominee is 49 years old

Time will tell. And, speaking of time, Gorsuch is 49 years old, and could very well be on the court for many decades. (The current record for length of tenure is liberal lion Justice William O. Douglas with 39 years.)

As I said in my piece Tuesday morning, Senate Democratic Leader Chuck Schumer has pledged to fight against any nominee who is “outside the mainstream.” Schumerites may decide that description fits Gorsuch (conservatives say that to Schumer, all forms of conservative look “outside the mainstream.”) Other Dems will mount a filibuster just to protest what the Repubs did to Judge Merrick Garland’s nomination. I totally get that and wouldn’t blame them a bit. But they will need almost every Dem to mount enough of a filibuster to force the Repubs to attempt the “nuclear option.” And they will need help from at least a few Repubs to exercise the nuclear-defense strategy. (If you don’t understand those terms, they’re explained in Tuesday’s piece.)

So the thing about Gorsuch’s apparently unassailable credentials and judicial demeanor and Boy Scout biography is that it becomes hard to pick up wavering senators, from either party, for either of those votes.

I don’t expect the Dems to throw in the towel right away. But I seriously doubt their chances of blocking this nomination. On the other hand, as we learned on Election Night, just because you think you know how something’s gonna turn out doesn’t mean it will turn out that way. I’ve just expressed a few guesses, but I’m very down on pollsters and experts and stargazers who think they can see the future. I know I can’t. If you think you know what happens next, feel free to let me know in the comment thread below.

Sen. Franken’s response

Minnesota Sen. Al Franken, who serves on the Judiciary Committee, which will deal with the nomination before it reaches the Senate floor, released this statement on the nomination:

Long before his election, President Trump promised to appoint a Supreme Court justice in the mold of Antonin Scalia, who held a deeply conservative view of the Constitution and the Court. In the coming weeks, I will be closely examining Neil Gorsuch’s background, but I have serious concerns about his judicial philosophy—especially on issues like access to justice, corporate accountability, workers’ rights, and women’s health. I was hopeful that the President would have selected someone like Merrick Garland, a consensus candidate lauded by the same Republicans who ultimately refused to hold a hearing on him for nearly a year.

Minnesota’s senior senator, Amy Klobuchar, also serves on Judiciary. On Wednesday, she released this statement:

Senators have a solemn obligation to advise and consent on a President’s nominee for the Supreme Court. The Supreme Court makes decisions that affect the lives of people across the country. We need to thoroughly examine Judge Gorsuch, his respect for precedent, and his views on issues that matter to the American people. I have concerns about his views and record on issues including those involving separation of powers, campaign finance, and consumer protection. This nominee deserves serious scrutiny. And to be clear, there is a 60 vote threshold for this nominee to be confirmed, it’s not 51 like the other nominees that are before us now.

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Comments (58)

  1. Submitted by Paul Brandon on 02/01/2017 - 09:17 am.

    Gorsuch will be approved

    after a token protest (assuming that no skeletons tumble out of his closet).
    People do change over the course of a lifetime (remember David Souter), and Gorsuch may turn out to be a Justice first and a Conservative second.

    • Submitted by Steve Titterud on 02/01/2017 - 11:37 am.

      Speaking of changes once one has a lifetime appointment,

      …don’t forget Earl Warren.

    • Submitted by RB Holbrook on 02/02/2017 - 10:19 am.

      Skeletons Won’t Matter

      The Daily Mail is reporting that Judge Gorsuch set up and led a club called “Fascism Forever” while he was in prep school.

      I think we all can agree that a nominee floated by a Democratic President who had been a member of “Communism Forever” would be run out of Washington on a rail, assuming he even got as far as being nominated. Any bets on the principled stand Republicans will take on this? “Boys will be boys” springs to mind.

      • Submitted by John Horn on 02/02/2017 - 04:03 pm.

        The source is a high school yearbook

        Really! The source on “Fascism Forever” is a high school yearbook. That’s the sort of journalistic standards we have now.

        • Submitted by Charles Holtman on 02/03/2017 - 05:41 pm.

          Wouldn’t that qualify as a primary source?

          I don’t know that I’d judge myself or anyone else on what I did or said in high school (and certainly it’s unnecessary to assert otherwise: Mr. Gorsuch’s unfitness rests on substantial evidence relating to his mature thinking), but that’s a different question.

        • Submitted by RB Holbrook on 02/06/2017 - 04:48 pm.

          Journalistic Standards

          Yes, a high school yearbook would be a good source for learning what a person did in high school. I don’t understand your problem with that.

          Suppose a person nominated for the Supreme Court by a Democratic President had a picture in his high school yearbook that identified him as the founder of the “Yenan All-Stars,” a pretend Maoist group. Would the conservative media be so willing to dismiss it as “fake news,” or sneer at the source? We know it wouldn’t be dismissed as a childish prank.

          • Submitted by Bill Yetzer on 02/07/2017 - 10:00 am.

            High school yearbook?

            Kids that do high school yearbooks make all sorts of jokes. Now if his high school yearbook said he played on the tennis team or was in the band, sure that would make perfect sense to believe that. Those are normal activities and there wouldn’t be anything funny about putting that in his yearbook profile. But “Fascism Forever”? That really doesn’t raise any flags for you that it’s made up? And I’d say the same thing about “Yenan All-Stars”. I wouldn’t have believed President Obama’s high school yearbook reference to the “Choom Gang” if it hadn’t been confirmed elsewhere.

            • Submitted by RB Holbrook on 02/07/2017 - 10:22 am.


              My real point is, would the conservative media be so quick to dismiss the “Yenan All Stars” as a joke? There is no reason to think so.

              Apparently.”Fascism Forever” was a real club of kids at Judge Gorsuch’s tony prep school who thought it was amusing to say they were fascist. It wasn’t serious as a political movement, but it was more than just a yearbook joke.

              • Submitted by Bill Yetzer on 02/08/2017 - 08:51 am.

                Not true

                According to

                “We made those inquiries to verify whether a “Fascism Forever” club operated in or around Georgetown Preparatory School in 1985, and Georgetown director of communications Patrick Coyle told us that “no such club ever existed” at the school.

                America magazine made similar inquiries and reported that the references to the “Fascism Forever” club in the Georgetown yearbook were just a joke.”

                • Submitted by RB Holbrook on 02/08/2017 - 09:55 am.

                  Once Again

                  Yes, the sources I relied upon were incorrect. Even so, you’re missing my real point. Would Breitbart take the same high road for a Democratic nominee?

                  If you believe that they would, I’ve got some secret tunnels under a pizzeria I would like to show you.

                  • Submitted by Bill Yetzer on 02/08/2017 - 11:02 am.


                    I have no idea what Breitbart would do. I’ve never been on that web site in my life. I’m sure Drudge would have a link to something like that, but doubt that it would be taken seriously.

                    Perhaps I have forgotten or just wasn’t paying attention (especially to sites like Breitbart), but I don’t recall any Republican opposition taking the “low road” for any Democratic Supreme Court nominee.

                    • Submitted by RB Holbrook on 02/08/2017 - 02:34 pm.

                      The Low Road

                      Up until recently, both parties seemed to believe that some semblance of decent behavior should be the norm.

                      “I’m sure Drudge would have a link to something like that, but doubt that it would be taken seriously.” You are sadly overestimating your fellow citizens if you believe that.

      • Submitted by David McCoy on 02/02/2017 - 11:05 pm.


        The phrase fake news also springs to mind

  2. Submitted by Roy Everson on 02/01/2017 - 09:25 am.

    8 is enough

    The Scalia seat belongs under police protection in the “stolen merchandise department”. Since when does the thief who took your TV get to decide what channel to watch?

  3. Submitted by Hiram Foster on 02/01/2017 - 09:46 am.


    Just offhand, I think it’s important not to confuse a distinguished resume with a distinguished career. But beyond that, it’s important for Democrats to craft a message, one incidentally that fights the prevailing narrative currently being imposed on them, that they are opposed to Gorsuch as a retaliation for the Garland nomination.

    • Submitted by Steve Titterud on 02/01/2017 - 11:37 am.

      Good idea. While at it, they might also want to explain…

      …that they’re not out for a general payback to the Republicans in the Senate for the last 8 years, & not out to obstruct any and all aspects of Trump’s presidency in feeding red meat to their perceived base.

  4. Submitted by Neal Rovick on 02/01/2017 - 10:05 am.

    I would think a delay by Democrats would be just fine–after all, all of our conservative constitutional experts have made it clear that the size of the court is not mandated and that there is no requirement that a vacancy be filled.

  5. Submitted by Ray Schoch on 02/01/2017 - 10:19 am.

    I’m inclined

    …to go with Paul Brandon on this one. Assuming there’s no huge scandal of which we’re not aware, I think he’ll be confirmed. Even Senators virulently opposed to his nomination will have to deal with the stark political fact that they don’t have the votes. They can raise a stink if there’s justification for it (and I wholly agree with those pointing to the disgraceful and hypocritical Republican treatment of Merrick Garland), but in the end, it’s the elephants who have the votes. Beyond that, as Paul suggests, many a justice has proved to be of more independent mind on the SCOTUS than s/he might have been in more limited jurisdiction or circumstances.

  6. Submitted by Paul Brandon on 02/01/2017 - 10:41 am.

    Thanks, Ray. The real question

    is what Trump (or his string-pullers) would do with a second nomination.
    Under the most optimistic circumstances, the Dems will take back the House in 2018 and the remaining Justices would survive another two years. This assumes that the Democrats would impeach Trump for medical/psychiatric inability to fulfill his duties.
    Under the worst projection, Trump would somehow manage to keep office for eight years, with Breyer and/or Ginsburg not lasting that long. In that case, Dr. Frankenstein rules.

    • Submitted by Mike Schumann on 02/01/2017 - 11:50 am.


      I didn’t know that medical/psychiatric inability to fulfill his duties was grounds for impeachment. Is that in the constitution?

      • Submitted by Paul Brandon on 02/01/2017 - 01:21 pm.

        According to the Constitution

        “…They are “treason, bribery, and other high crimes and misdemeanors.” To be impeached and removed from office, the House and Senate must find that the official committed one of these acts.

        ‘High crimes and misdemeanors’ is not well defined (in Clinton’s case it was lying to Congress). So continuing to state that he capable of fulfilling his duties when according to medical authorities he is not could be held to constitute a ‘high crime or misdemeanor’.

      • Submitted by Ray Schoch on 02/01/2017 - 01:59 pm.

        Not impeachment, disability

        It’s not the same thing as impeachment, but the 25th Amendment (adopted in 1967) has several provisions that allow for the removal of a sitting president from office if he is UNABLE to perform his duties ( He could leave voluntarily, or the VP and cabinet heads could officially notify the Speaker of the House and the President Pro Tempore of the Senate that the president is unable to perform his duties.

        Not being a constitutional scholar myself, I can only guess, but the guess is that the writers of the Amendment were thinking in terms of presidential illnesses. Woodrow Wilson was incapacitated for months by a stroke, and Mrs. Wilson essentially made many decisions usually reserved for the president, and in 1955 (I’m old enough to remember this), Eisenhower was hospitalized for several weeks after a heart attack, and we were in something like constitutional limbo as a result, there being then no constitutional method for passing presidential powers on to others. Richard Nixon was VP at the time, and many were not eager to see him acquire presidential powers. We were in mid-Cold War back then, so Eisenhower’s absence was keenly felt by many in governmental circles, and probably by my mom and stepdad. As an 11-year-old, I was…um… unconcerned.

  7. Submitted by Pat Terry on 02/01/2017 - 10:52 am.


    I cringe at characterizations of Scalia as an originalist or really as having any consistent philosophy at all. He was all over the map, and would employ whatever philosophy he needed to get the desired result. He was also a liar and a bigot, as anyone who has read any of his dissents on gay rights decisions.

  8. Submitted by C.S. Senne on 02/01/2017 - 01:52 pm.

    Watch out, Ruth.

    It would be perfectly “legal” for Trump to nominate Bannon next time.

  9. Submitted by Joel Stegner on 02/01/2017 - 01:55 pm.


    Republican refusal to even consider Garland, a well respected moderate, or any candidate Obama submitted show that The Senate Republican majority has no respect for the Constitution. Their act was cowardly, as they could easily have taken time away from fund raising, campaiging and investigating to do their job, review the nominee and vote him up or down based on merits. They threw out the rules and then expect that they now be followed.

    Well, filibustering a Supreme Court nominee is within the Senate rules, and if Democrats choose to do so, they are within their rights. Of course, Senate Republicans could again disrespect the rules and do a lifetime appointment of a 49 year old to the highest court on a simple majority vote.

    Democrats need not protect them from this kind of power grab. Force them to do so, so they don’t escape consequences as they did with Garland. While their man may end up on the court, this kind of action will greatly increase the likelihood they will have to find a new kind of work.

    • Submitted by Pat Berg on 02/01/2017 - 03:05 pm.


      Republicans don’t need no stinkin’ rules!

    • Submitted by Henk Tobias on 02/02/2017 - 11:19 am.

      Fillibuster til the cows come home

      Its what Republicans would do had Hillary won. As late as October John McCain was saying: “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,”

      Democrats have no obligation to treat Trump’s nominee any differently, in fact any Democrat who moves to confirm him should be challenged in the next election.

    • Submitted by David McCoy on 02/02/2017 - 10:22 pm.

      “No respect for the Constitution”?

      You conveniently ignore the fact that it was Harry Reid who implemented the previously unthinkable “nuclear option.”

      Saying the Republicans could “again ignore the rules” is not accurate. They would be simply following the precedent set by the Democrats.

      • Submitted by RB Holbrook on 02/06/2017 - 10:19 am.

        So . . .

        If Democrats did it, it’s okay? Republicans have no principles beyond doing what was done by someone else? All their complaints at the time may be dismissed as so much noise?

  10. Submitted by Edward Blaise on 02/01/2017 - 02:11 pm.


    Schumer should let McConnell know and get his full acknowledgement that to move forward the following conditions must be agreed to:

    1. If a court position should open up anytime after November 1, 2019 the position will be filled by the next President.

    2. An agreement on filibuster rules for SCOTUS nominees that prevents a Ted Cruz from saying he will stop any Democratic nominee from moving forward (as he did in anticipation of an HRC Presidency).

    Anything less than that, it’s an automatic no and let the process play out as it may.

  11. Submitted by Greg Kapphahn on 02/01/2017 - 02:15 pm.

    Let’s NOT Bring a Box of Tissue

    to this knife fight, shall we?

    If WE continue to “play nice,”…

    we teach our Republican friends that there are NO consequences for their throwing decency, honesty, fair play, justice, and decorum out the window in pursuit of their own goals.

    They then will feel completely safe and well justified in going farther and farther down that same path,…

    a path which has already lead us to the least qualified, least capable, and least suited to the office President in the history of our nation.

    As Ben Franklin quipped, “Experience keeps a dear (as in costly) school, but fools will learn in no other.”

    If we do NOT hold up this Supreme Court appointment for at least the next year,…

    and YES, we’ll be doing it EXACTLY in repayment for the Republican refusal to consider Merrick Garland,…

    (in this case, that’s what justice looks like)…

    we will teach our Republican friends that they never have to allow another Democratic appointment to the Supreme Court,…

    that nothing can stop them from packing the Federal Judicial System, nationwide,…

    and that no matter what other outrageous things they do, there will be no cost to them.

    Those who believe that our “playing nice” will cause the Republicans to come back to their senses and begin to do the same,…

    are completely delusional.

    If we do not rise to the challenge before us and take on the Republicans on their own terms,…

    using their own methods,…

    and learn to anticipate and outmaneuver them until we’ve backed them into an inescapable corner,…

    (which shouldn’t be that hard, because they’re very predictable if you understand their dysfunctions),…

    we lose EVERYTHING, inch, by inch, foot by foot, mile by mile, until we have NOTHING left of the nation we’ve been working so hard to build and maintain since FDR.

    The Republican Party’s current collection of leaders will NEVER return to “decorum.”

    If they did so, their “base,” spurred on by weasel news and “conservative” talk radio would run them out of office as fast as possible.

    “This ain’t tiddly winks, folks.”

    The Democrats either learn to play hardball and learn to outmaneuver the Republicans,…

    or the Democrats are done having any influence over national and international affairs.

    (That latter option will, I sadly suspect, be the case.)

    • Submitted by Helen Hunter on 02/02/2017 - 01:13 am.

      Knife fights and tiddly winks

      I comment on people’s use of language because language is important.
      Our alternatives are not limited to violence (“using the “republicans’ own methods) or being nice and mistaking this for a game of tiddly winks.
      Aggression in response to aggression means endless escalation. There’s already too much of this in our culture.
      Yes, oppose this nominee with all you’ve got, Senators. He’s the judge of the infamous Hobby Lobby and cops-have-immunity-when-they-kill-unarmed-people decisions. He’s a bad pick for Supreme Court Justice.
      Many of us know that the “republican” leaders in Congress will never learn better ways of acting. That’s not why we oppose them. We oppose them to make it harder for them to continue doing what they’re doing. To wear them down if possible.
      And yes, they should be opposed because of their appalling refusal to do their job of giving President Obama their advice and scheduling a vote on Merrick Garland. Their appalling arrogance in re-defining their own job, and for partisan reasons.

  12. Submitted by Dimitri Drekonja on 02/01/2017 - 04:31 pm.

    Having had a day to reflect on the supreme court nominee, I have to disagree with those who are in the “hold out until Garland is confirmed” camp. I get the anger over Garland; it sucks. Republicans made a gamble on inventing a new “let’s let the people have a voice” threshold, ignoring the voices that twice elected Barack Obama with larger electoral and popular votes than the current president, and that gamble paid off big time. Yes, it was a gamble helped by James Comey, Russia, and a press obsessed over emails, but it paid off.

    If the Democrats filibuster this pick, there is little doubt in my mind that McConnell would change the rules of the Senate, and pass the nominee with a simple majority. The public, currently rightfully outraged at the muslim ban, the growing farce of not having an ACA replacement plan ready, and the general incompetence of the new regime, would be distracted by a fight that can too-easily be dismissed as “sore losers.” During that distraction, the president could start to repair his dismally low approval ratings, and do plenty of other damage.

    So yeah, it sucks. The bullies won. As they often do in the short term. But in the long run, reason and intelligence usually win. So instead of burning energy and public goodwill on a fight that they don’t have the votes to win, Democrats should focus on the truly awful things that are happening: assaults on clean air and water; abandonment of refugees; dismantling of historic alliances; a president with global conflicts of interest; continued efforts to make it harder for minorities to vote; etc. And of course, they need to take this case to everyone, not just to their base.

    In the meantime, hope for good health and the desire to keep working for Ginsberg and Kennedy. They need to make it to election day 2018. Any vacancy after that, we apparently have to wait until the next election so that the people can choose. At least that’s the standard for when a Democrat is in office, and we’ll have to insist on it when a Republican is in office too.

    • Submitted by Mike Davidson on 02/01/2017 - 07:02 pm.

      Forcing McConnell to change the rules …

      Forcing McConnell to nuke the filibuster option puts Senate Republicans under a much more glaring microscope; Democrats will have to publicly explain – again – why they are filibustering in the first place. It’s the perfect opportunity to remind America this seat was not Trump’s to fill – it was Obama’s. It’s the perfect opportunity to publicly troll McConnell for refusing to do his constitutional duty as Senate Majority leader for 9+ months. It’s also an opportunity to remind the public that McConnell and several other key GOP senators pledged to filibuster any SCOTUS nominee Clinton appointed (back when most everyone assumed she was going to win). I’m not saying we shouldn’t be fighting the good fights – the environment, education, refugees, global standing – but these are all things that are also at the mercy of Republicans.

      2010 and 2014 are prime examples that Republicans are good at winning mid-terms. Democratic voters are typically lazy when it comes to these non-presidential cycles. If Democrats stand any hope at all of reclaiming the Senate in next year’s mid-terms (and it’s going to be a tall order because we have more Senators up this time), make some gains in the House, and retake some gubernatorial mansions, then we have to fight and campaign the exact same way Republicans do, and that is going to involve consistently and repeatedly reminding Democratic, liberal, progressive, and many Independents who vote Democrat why they can’t afford to stay home and sit out the mid-term.

    • Submitted by Neal Rovick on 02/02/2017 - 07:44 am.

      If not now, when ?My feeling

      If not now, when ?

      My feeling is that whenever in the next 2 years a filibuster as a tactic is used, it will be blown out of the water by Trump and his poodles in Congress with the nuclear option.

      It is a Maginot line–supposedly an invulnerable bulwark–but ultimately easily bypassed if desired.

      One of the formerly respected traditions that will not withstand the onslaught.

      Again, these things stay only if all parties respect them.

  13. Submitted by Bill Coleman on 02/01/2017 - 05:48 pm.

    Different strategy

    I would ask the Democratic Senators to put the focus of all questions to the nominee on the Garland nomination. Is the nominee willing to sit in a seat for many years that will be known as the “stolen seat”? Ask if he would counsel young children to accept candy from a bully that was stolen from another child? Would he push someone aside to get the last ticket for an event? Ask what basis in the constitution allows a political party to refuse to engage io the advise and consent role?

    Make this all about the Garland nomination. Make him defend McConnell and company. Make the GOP senators defend it over and over again. Make stolen seat part of the common language.

    I have heard that Kennedy is about ready to resign. Make a deal that Garland would replace Kennedy putting another swing voter on the Court.

  14. Submitted by Ilya Gutman on 02/01/2017 - 09:29 pm.


    What do Justices Kennedy, Warren, and Roberts have in common? They were all appointed by Republican presidents but quite often voted along with their liberal counterparts on contentious issues. Are there any Justices appointed by Democratic presidents who voted along with Republican on controversial things? As for Gorsuch, we should all remember what one president said: Elections have consequences. I also wonder, if Republicans gave Garland a “no” vote, would Democrats be now more inclined to vote for Gorsuch… not!

    • Submitted by Neal Rovick on 02/02/2017 - 08:37 am.

      Hmm “Corporations are people” is the rule of the land now.

      Seems like an already “conservative” court, oops make that “corporate” court.

      • Submitted by Ilya Gutman on 02/02/2017 - 08:16 pm.

        In case you missed it

        My point was that Republican presidents appoint many independent judges which cannot be said about Democrats…

        • Submitted by Edward Blaise on 02/06/2017 - 08:53 am.


          The counterpoint would be that the conservative justices sometimes have to throw in the towel, respect the constitution and do the right thing. As not evidenced in Bush V Gore, the most activist decision in the last 100 years. Let’s get over the myth of Scalia as strict constructionist: he did whatever suited his political beliefs throughout his career.

    • Submitted by Edward Blaise on 02/02/2017 - 09:52 am.


      Elections do not have consequences. If they did Justice Garland would be on the bench.
      Blatant partisanship and hypocrisy would seem to have more consequences and the GOP is way, way, ahead on those elements…

      • Submitted by John Horn on 02/02/2017 - 12:08 pm.

        Senate elections matter too

        Elections do have consequences. As a result of the 2014 elections, Republicans controlled the Senate. If the Senate was controlled by Democrats in 2016, Garland (or perhaps Obama would have nominated someone else) would be on the Supreme Court now.

        If the Democrats had won 3 more Senate seats in 2016, even while losing the Presidency, they could have defeated Gorsuch rather easily.

  15. Submitted by Hiram Foster on 02/02/2017 - 06:30 am.

    The long run

    As Keynes observed, probably more than once, in the long run we are all dead. One of the terrible legacies of Rebpublican governance is that the Supreme Court has become a Republican dominated super legislature, where major legislation is reviewed and enacted, not because of constitutional issues, but on a policy basis. This is a anti democratic, and it is fundamentally wrong. Putting another Republican on the Supreme Court means a return to the bad old days, when it was the unelected Supreme Court would decide health care policy on the bizarre theory that men living in an era when brain surgery was performed by barbers, had dealt with and decided health care issues in the 21st century. That Judge Gorsuch shows no inkling of an understanding of how ridiculous that is is perhaps the worst thing anyone can say about any potential nominee to the Supreme Court.

  16. Submitted by Hiram Foster on 02/02/2017 - 08:28 am.

    I also wonder, if Republicans gave Garland a “no” vote, would Democrats be now more inclined to vote for Gorsuch… not!

    There is an emerging narrative that opposition to Gorsuch is the result of Republican treatment of Garland. Just in terms of message management, I think Democrats in the media should push back on that, but I don’t think it’s possible to effectively do that. The fact is, had Garland been given a hearing and had he been defeated, Democrats would have been just as strong in their opposition to Gorsuch.

    But I would argue, the Republican refusal to consider to give Garland a hearing wasn’t an isolated event. Rather it was simply another stage in the politicization and delegitimatizing of the Supreme Court. After Garland the polite fiction that the Supreme Court is above the law has been abandoned. Now, it is simply a question we should have in this country a third political branch, one that in theory is both more powerful than the other two branches, but is also not elected by the American people. I don’t think we should. And more particularly, I don’t think people should be placed on that body by a president who was opposed by the majority of voters, and who himself is mentally unstable and obviously unfit for office.

    • Submitted by Ilya Gutman on 02/03/2017 - 06:24 pm.

      You said

      “One of the terrible legacies of Republican governance is that the Supreme Court has become a Republican dominated super legislature.” And “Republican refusal to consider to give Garland a hearing wasn’t an isolated event. Rather it was simply another stage in the politicization and delegitimatizing of the Supreme Court.” Both are quotes from your posts but which one is true?

  17. Submitted by beryl john-knudson on 02/02/2017 - 08:31 am.

    Black robe will not symbolize justice in Trump administration

    Whatever the outcome a power grabbing leader will override any positive change that may be arrived at by the black robed justices whomever the chosen one although it is not in Trumpet’s rightful power to do so…so does it matter anymore?

    Impeach is not a fruit from Georgia it is a fruit spoiling in the White House…so what’s the next executive order coming from the Man?

  18. Submitted by Jon Kingstad on 02/02/2017 - 10:00 am.


    There was a lot of talk a few years ago about the Democratic Party wanting to “go nuclear” when the Republicans were using their filibuster threat (or the new expanded filibuster right to hold rule) to block, well everything for the short time when Obama was complaining about not having a “filibuster-proof” Senate. Over the long term, the Republican Party has a lot more to fear from “going nuclear” and ending the filibuster rule once and for all. If it’s going to go, as I think many of us think it should, let it at least be in a fight over principle. The principle being the refusal of the Republicans to allow Garland to even being considered. Changing the rules when it suited their purposes should have consequences.

    Then I say make them pay for this arrogance. If the Republicans want to be the ones to end their one true power against obstructing progressive change, then make them do it. All they’ll end up with is “their guy”, Gorsuch, who,after all, once he’s on the Court, is as free to be “conservative” (which I now take to mean without principles), or not as he wishes to be. He’ll be a free agent. But the country, after all, will finally be rid of one of the most reactionary and really anti-democratic rules ever devised by a parliamentary body.

  19. Submitted by Hiram Foster on 02/02/2017 - 10:42 am.


    A phrase that rings an alarm bell with me is “well-credentialed”. Having credentials doesn’t make one brilliant or wise. If it did, everyone with a passport would be an expert on foreign policy. Our president at the moment is well credentialed. He wen to Wharton, a top flight department in an Ivy League school. While there he established a brilliant academic record, finishing first in his class. Yet he doesn’t seem to know who Frederick Douglass was. Could it be that academic credentials aren’t everything? Here is a modest proposal. Shouldn’t we perhaps demand more from people we are entrusting with the highest offices in the land that they should have demonstrated more in life than an ability to get accepted at Harvard or even the University of Pennsylvania?

    • Submitted by Charles Holtman on 02/03/2017 - 05:58 pm.

      Just for the record.

      Trump didn’t finish first in his class at Wharton. First, he didn’t go to “Wharton” (a graduate business school); he transferred from Fordham to U Pennsylvania for his last two undergraduate years, and got his undergraduate degree in business through a program housed in Wharton. Second, he didn’t graduate first in his class, that’s a myth. Apparently none of his classmates remember him and he graduated but without any sort of honors.

      Not that I disagree with your point. The chief quality for a Supreme Court justice isn’t degrees or even a brilliant intellect. It is the capacity to interpret the Constitution with a deep sense of how, at a given time, a society cultivates and maintains norms and how individuals make their place and seek to lead meaningful lives within it.

  20. Submitted by Hiram Foster on 02/04/2017 - 06:26 am.

    Trump didn’t finish first in his class at Wharton.

    He said he did, and if he didn’t, I am sure the media would have reported it.

    • Submitted by Charles Holtman on 02/05/2017 - 09:55 am.

      Hiram, if you’re responding to my comment

      Several folks investigated and wrote about it in credible publications. UofP doesn’t disclose the information that would directly answer the matter, but the writers in question reviewed commencement materials, interviewed classmates and otherwise examined indirect evidence and concluded to a great level of confidence that Trump came in from Fordham (thru connections), spent an unremarkable two years at UofP and got his bachelor’s degree without any distinction.

      That aside, surely you would agree that it’s beyond Sisyphean to suggest that a Trump statement must be true unless the media have confirmed otherwise. Better to assume a Trump statement is a lie unless the media have investigated and found that, surprisingly, it has some connection to reality.

  21. Submitted by Paul Udstrand on 02/05/2017 - 02:45 pm.

    “Originalism” is intellectual fraud

    We have to stop pretending that “originalism” is anything other than intellectual fraud. The idea that someone who adheres to the fantasy that they can “know” the collective intent of dozens of long dead men is simply incoherent delusion pretending to be legal theory. That such a person would considered to be “well credentialed” is irresponsible civility pretending to be respect.

    “Intent” is the most difficult legal finding in our entire legal system. Almost all testimony regarding another persons intent is not allowed by our rules of evidence because no person and know another persons mind. Yet here we have judges claiming that they can know, without being able to interview or question anyone, what long dead framers would not only think, but would what consensus they would produce if they were to think about issues they simply could not even imagine while alive. This is nothing more than historical daydreaming passing itself off as jurisprudence.

    Not only must daydreamers imagine they can know the minds of long dead framers, they must also imagine an entire discourse whereby 200 year old framers are educated and familiarized with everything from contemporary physics, chemistry and technology to a country where slavery is illegal and women and black people can vote. Having been appropriately familiarized with contemporary circumstances our fantasy goes on to imagine a debate among several dozens framers that renders some kind of infallible consensus consistent with our current ruling. This isn’t law, it’s a rabbit hole no responsible person would jump into.

    Originalism can never escape it’s nature as ideological enforcement pretending to be dispassionate justice. At best it converts a human document with human flaws into a divine scripture rendered by infallible deities rather than mere mortals struggling to form a more perfect union. At worst it creates judgments based on findings that cannot be tested or questioned in any logical or rational manor beyond: “Because I say so.”

    So long as SCOTUS nominees who delude themselves with notion that they can know original intent are taken seriously, our entire judicial system teeters on brink of illegitimacy. So long as we ignore THAT fact and try to pretend that these nominations are just politics or partisan gamesmanship we toy with justice at our own peril.

  22. Submitted by Hiram Foster on 02/05/2017 - 03:32 pm.

    That aside, surely you would agree that it’s beyond Sisyphean to suggest that a Trump statement must be true unless the media have confirmed otherwise.

    It is Trump’s position that he finished first in his class, and that is a fact. Other people dispute that but his position on the subject is quite clear.

  23. Submitted by Hiram Foster on 02/06/2017 - 09:14 am.

    Originalism is one response to the central philosophical question surrounding the supreme court or any entity claiming to be supreme. The question is: Is a supreme entity subject to any authority? The question is difficult in an obvious way. Intellectually it’s difficult to understand how something that’s supreme is subject to an authority which by definition can’t be extreme. One way to respond to this problem is to proclaim them a “mystery”. I mostly deal with the issue by ignoring it because it makes my head hurt. Scalia in his quest for and need of authority, latched onto originalism. The authority is the oringal intent of the framers. For just about everyone else, this view is highly problematic. For one thing, anyone who has experience with legislatures pretty quickly comes to an understanding that the any sort of legislative intent is in very short supply. Here in Minnesota, we have 201 legislators and on any given controversial issue, there are 201 points of view, and sometimes more.

    But in a larger sense, I don’t think the notion of originalism makes sense originally. If I were at a constitutional convention, I would reject out of hand any notion that very much of what I was doing was intended to bind remote successors in policy terms. I just don’t know what health care policy will be best 230 years from now, and the notion that constitutional doctrine says I do is just plain silly. The best I would feel I could do, is provide a framework in which such decisions can be made, and if you notice, that’s what the framers did.

  24. Submitted by Paul Udstrand on 02/06/2017 - 11:22 am.

    Originalism as religion

    “The question is: Is a supreme entity subject to any authority?”

    Yeah but that’s not a legal question, and ironically it’s exactly where “Originalism” collapses upon itself in a logical non sequitur.

    One thing we can know for a fact is that the US Constitution was a product of Enlightenment mentalities that looked to human reason and observations rather than revelation for inspiration. The idea that the framers were establishing themselves as infallible secular deities ruling beyond the grave for all generations to come, is simply absurd. Even if they actually intended to establish themselves as secular deities for all time… THAT would be equally absurd.

    Had the framers no intended future generations would rely on their own intellectual faculties to work stuff out they would hardly have needed to design a divided government with checks and balances to curtail faulty or immoral reasoning. They saw human intellect as capable and sufficiet, but not infallible.

    Hence we have a Supreme Court, but not an infallible court. Originalists who decide to subject themselves to the “authority” of framer mentalities are appealing to an authority that never wanted to exist, a delusional authority. We can test this by simply by asking how two Originalists who disagree about something how they can settle an argument beyond one simply claiming to know the “mind” of the framers better than the other?

    Another thing we know about the “minds” of the framers is that they were extremely fallible. They thought Americans should own slaves and women shouldn’t have the right to vote. One thing it is to adhere to principles contained in the US Constitution, but it makes no sense to be held captive to 18th century mentalities. By pretending to access the minds of the framers rather than the principles they tried to establish Originanlists resort to magical thinking. We take Oaths to defend the US Constitution, not the infallibility of it’s authors, and we take that oath for a reason. The US Constitution is actually transcendent, it’s authors are all just dead. Even if we could know what Originalists claim to know, there’s no reason to assume that a bunch of 18th century guys who owned slaves and used leaches to treat tuberculosis would have a better idea what to do with stems cells than we do. It just doesn’t track. The Originalist doctrine only makes sense if we assume the framers were omniscient and infallible, we KNOW they were not.

    Yes to some extent the courts interpret and enforce legislative intent, to that extent we’re all oringinalists. But “intent” isn’t the only possible test and courts rarely claim to have accessed the actual minds of legislators. Even if legislators clearly intend to create a law establishing sex slaves, the courts will strike it down. Legal judgement is about the application of reason, not an appeal to infallible authority. That’s where “Oringinalsim” leaves the reservation.

  25. Submitted by Paul Udstrand on 02/08/2017 - 09:07 am.

    One final thought

    Any discussion that limit’s itself to the actual confirmation of Gorshuch actually normalizes an ongoing political disintegration. Of course Gorsuch will be confirmed, that’s not even a question. Liberal’s delude themselves when they limit their attention to a particular election cycle, or president, or nominee while ignoring the over-all arc of reactionary triumph.

    Treating nominations like this as if they’re just political gamesmanship tussling over “credentialed” nominees may bring us back to a familiar comfort zone of sorts but we focus on the trees instead of the forest at our own peril.

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