He Nominates A Conservative For SCOTUS … surprise

And now, the moment you have all been waiting for … after much anticipation, we finally know who Trump’s pick to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia is:  Neil Gorsuch.  Now, maybe you have heard of Gorsuch, maybe you haven’t, so let me give you a little brief bit of background on the man and his views, though it should suffice to say he is rich, white, and male, as have most all of Trump’s nominees for advisory and cabinet positions.

gorsuchNeil McGill Gorsuch is a judge on the United States Court of Appeals for the Tenth Circuit since being appointed by President George W. Bush in 2006. Gorsuch has the typical pedigree of a high court justice. He graduated from Columbia, Harvard and Oxford, clerked for two Supreme Court justices and did a stint at the Department of Justice. He is a conservative, of course, and  ruled in the case of Zubik v Burwell, commonly known as the Hobby Lobby case, in which Gorsuch held that the requirement in the Affordable Care Act that employers provide insurance coverage for contraceptives without a co-pay violated the rights of those employers that object to use of contraceptives on religious grounds. His ruling was later overturned by the Supreme Court.

Gorsuch favours the death penalty and is a strict constitutional originalist.  A brief explanation of that term may be in order.  There are two theories in constitutional interpretation:

  1. Originalism is the idea that the Constitution should be interpreted from the point of view of the framers who created the document in 1787, and
  2. Pragmatism is the theory that in the 230 years since the Constitution was written, many changes have taken place in society and the nation that necessitate a broader interpretation

And that, folks, is pretty much all I know about Mr. Gorsuch.  You didn’t ask, but I thought the Hobby Lobby decision was a bad one, as it opened the door for a host of other discriminatory Laws on the grounds of ‘religious freedom’.  I do not support the death penalty.  I believe that the pragmatic approach to constitutional interpretation makes the most sense (I actually have a paper I wrote on this topic for a Constitutional Law class several years back, if anybody is interested … 🙂  ).  So, in at least three major areas I disagree with Gorsuch.  But then, we didn’t think Trump would pick a candidate who thought like Filosofa, did we?

Trump has made no secret of the fact that his choice to fill this seat would be one who would cast his vote to overturn Roe v Wade, so we must assume that there has already been conversation and agreement on that major issue between Trump and Gorsuch.  Again, I disagree on this topic, but nobody asked me.

The process to confirm Gorsuch:

  • Referral to the 20-member Judiciary Committee (11 Republicans & 9 Democrats)
  • Pre-hearing research where his background and past rulings will be reviewed
  • Confirmation hearing
  • Committee vote
  • Full Senate vote

The only stage where I see a possible stumbling block in the process is the final, the full senate vote.  Democratic senators can filibuster and force a 60-vote requirement for confirmation, and there are only 52 Republicans in the senate.  Given the fact that the Republicans effectively blocked President Obama’s nominee, Merrick Garland, by refusing to even hold confirmation hearings, the Democrats in the senate are still bitter and not much in the mood to play nice.  Senators Chuck Schumer and Jeff Merkley have both vowed to oppose any nominee other than Garland, as have other Senate Democrats.  It could be interesting, but I suspect that at the end of the day, Trump will have his way in this as he has everything else in the last 12 days.

“In light of the unconstitutional actions of our new President in just his first week, the Senate owes the American people a thorough and unsparing examination of this nomination. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he outsourced this process to far-right interest groups. This is no way to treat a co-equal branch of government, or to protect the independence of our Federal judiciary.” – Senator Patrick Leahy, Democratic Senator from Vermont, 31 January 2017

“The Senate should respect the result of the election and treat this newly elected president’s nominee in the same way that nominees of newly elected presidents have been treated.” – Senate Majority Leader Mitch McConnell, 30 January 2017

McConnell was outspoken in his refusal to hold confirmation hearings for Merrick Garland, yet he says this????

The reason the framers of the Constitution made Supreme Court positions lifetime appointments was to shield justices from partisanship.  They were intended to be accountable to their consciences rather than an electorate.  I am not sure that is the case today, especially in light of this nominee who, undoubtedly was chosen for his political views. Assuming he is confirmed, the Supreme Court will then consist of 4 liberal-leaning justices, 4 conservative-leaning, and 1 moderate (Anthony Kennedy).  With this composition, I think it unlikely that Trump will get his way and see Roe v Wade overturned quickly. The danger comes later, if Ruth Bader Ginsburg, who is 84, and Anthony Kennedy, age 81 decide to retire before Trump leaves office.  If he has the opportunity to appoint two more justices, then all bets are off.  Stay tuned …

13 thoughts on “He Nominates A Conservative For SCOTUS … surprise

  1. The scary thing about this nomination is that I think of the Manchurian Candidate with regard to this nominee. I say this because I was listening to NPR and they had several guests that had either clerked with or clerked for him. These guests, some of them liberal, believe that Gorsuch is a brilliant man who will live by the rule of law, even if it differs with his personal convictions. This is as it should be, but it also scares me. Why would Trump nominate someone that has a mind of their own and might not agree with the Conservative agenda. Has Trump realized that his new-found conservatism is a sham and doesn’t want to put a radical on the court? Is Gorsuch a Trojan horse that will show his true colors once he is on the court? Is he just a good bi-partisan pick that, although he leans conservative, will actually evaluate laws on their merit?

    I just don’t know the answers to these questions and I don’t think there is anyone bright enough in Congress to do this level of discovery.

    Liked by 1 person

    • You make good points here. I didn’t hear the NPR piece, but will check it out. Time will tell … my initial reaction to Gorsuch was that we could probably have done a lot worse, and we knew he wasn’t going to nominate a moderate, so I wasn’t too concerned. I hope it is true that he will follow rule of law. I don’t know the answers either … I suspect we will have to wait and see, as with everything else these days.


  2. Thanks for doing this. Mitch McConnell does not have much credibility in my book, and that was long before his Merrick Garland decision. Of course, I feel the same about Harry Reid. To me, they and Ted Cruz are the poster children of what is wrong with DC.

    Liked by 1 person

    • Thanks Keith! Yes, I agree with your take on McConnell. He, along with many others, have forgotten why they are even in their positions. To serve in the best interest of the nation, the people, seems to be a lost concept in the majority party of Congress.


  3. I read somewhere that all the democrats who have said that they would try to block the nomination actually voted for him in 2006 so I’m wondering why they would go the other way now? Perhaps it was the hobby lobby case that changed their minds, I don’t know.

    Liked by 1 person

    • I suspect the Hobby Lobby case had much to do with it. However, I think the bigger issue is that the Republicans refused to even begin confirmation hearings for Obama’s nominee, Merrick Garland, and so why should the Democrats now be eager to confirm Trump’s nominee. Yes, it is political game-playing, and no, it isn’t right, but I understand it. Garland is a moderate who would have been a better choice, in my opinion, but the Democratic senators must know that Trump, and therefore his minions in congress, will never back down on this. Sigh.


  4. Once of the remarkable things about the Court is that those who are appointed sometimes surprise those who appointed them! We can always hope. And Trump may not be around long enough to appoint another judge — though Pence will be, sad to say.

    Liked by 1 person

    • Let us hope that you are right, but then, as you say, Pence will be and he is as committed to a ‘restrictive’ society as Trump. Let us hope Ginsburg and Kennedy are willing to work another 4 years!


  5. You and I differ in our political views but I always enjoy reading your point of view set out logically and with sound argument. I am a conservative but I do not like the direction we have taken in this country. POTUS hand SCOTUS have way more powers than our founders anticipated and the legislative branch is an epic fail. Liberal or conservative–we are doomed if we don’t soon re-establish the balance of power. Thanks for your perspective and your post.

    Liked by 2 people

    • Thank you so much for this! Too many people cannot differ without being obnoxious, so I highly value those who are able to have reasonable discourse without ranting and name-calling. This is what we all need to be doing … listening to others, calmly stating our own opinions. Much more can be accomplished this way. We can be diverse in our opinions, but at the end of the day, we are all citizens of the same country … a country that is in deep trouble at the moment. Thank you again for your kind words and for reading my blog. I hope you will keep coming back and keep sharing your opinion here!

      Liked by 1 person

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