Tipping the Scalia Part 2: Gorsuch and the Kangaroo Court

by David Keptsi

On Tuesday January 31st, in an alleged “grand display of showmanship,” Donald Trump announced his nominee for the Supreme Court. Conservatives were elated: a constitutional textualist in the vein of former Justice Scalia with a very solid resume. Certain Democrats, on the other hand, were already marching outside the Supreme Court with mad-lib style protest signs ready to condemn whomever Trump nominated, regardless of what they knew about them. This has metaphorically thrown Gorsuch from the Supreme Court to the kangaroo court of public opinion. In the spirit of due process, I’d like to provide a profile on who exactly Gorsuch is and address some concerns about his nomination.

Gorsuch obtained his B.A. at Columbia University where he helped start a libertarian/conservative paper (totally a knock off of the arguably more prestigious Binghamton Review, in my opinion). He then obtained his J.D. at Harvard Law School in 1991, where he was classmates with the now indefinitely vacationing Barack Obama. Not content with simply a law degree, Gorsuch went on to obtain a Ph.D. at Oxford University for research on assisted suicide and Euthanasia. Impressive, right? And we didn’t even get to his career as a private lawyer and 10th Circuit judge yet. If I was to elaborate on every position Gorsuch has taken in his long career, I’d be here for a while, but several key positions reveal how he may act once on the Supreme Court. For the one-issue protester, I shall label them in bold so you can ignore everything else.

Euthanasia and Assisted Suicide

As previously mentioned, Gorsuch researched Euthanasia and Assisted Suicide for his Ph.D. Unfortunately for those in favor of the practice, Gorsuch has come out against it, claiming  “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

Abortion and Contraception

While Gorsuch has not made a public statement as to his views on abortion, many are already claiming that he will come out against the practice. However, this may not be the case, especially if Gorsuch adopts the view of those in the pro-choice circle; in which fetus’s before the stage of viability are not considered human lives. Notably, Gorsuch gave a concurring opinion favoring Hobby Lobby in the highly publicized Hobby Lobby case involving contraception. Gorsuch sided with the company on the basis of religious freedom. According to Gorsuch, “…all of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.” (The Green family owns Hobby Lobby)

*Note this does not include his views on whether contraception should be legal or not, he simply believes those who adhere to religious views which are against contraception should not be forced to be complicit in its availability. Of course, many liberals are strongly against this notion, so I guess they do have something to complain about.

States’ Rights

In an era where Democrats suddenly seem to care about states rights while Republicans seem to have stopped, Gorsuch has shown preference to the rights of states vs. the rights of the federal government. One of the ways he has done so is by disputing the dormant commerce clause, a clause that while not actually present in the Constitution has been previously inferred by the courts. This clause allows state laws to be declared unconstitutional if they disturb interstate commerce too greatly. While I understand the states’ rights basis of his argument, this decision would allow for the state of Colorado to impose regulations favoring corporations in their state over those in other states, a form of corporate cronyism that makes his stance a mixed bag. However, as states already do this quite frequently, the focus on states’ rights may be more important in today’s more authoritarian regime. Hopefully, if Gorsuch remains ideologically consistent, he may become a balance against federal government overreach.

Trump

So this isn’t really about Trump, but it kind of is, considering democrats are trying to paint Gorsuch out as some sort of Trump lapdog. In his concurrence in the case Gutierrez-Brizuela v. Lynch, Gorsuch offered a critique of the Chevron Deference legal doctrine named after the case  Chevron U.S.A., Inc. v. Natural Resources Defense Council.  In 1984, this rule states that when dealing with an ambiguous statute, the Supreme Court should defer to the interpretation of the executive branch agency that is responsible for enforcing that statute. And guess who controls executive branch agencies? That’s right, our newly elected president: Donald J. Trump! While normally Chevron Deference would likely be supported by Democrats who pay no heed to overreach of executive authority during their administration, it seems like separation of powers is the new fad amongst the youth. And if you’re worried about “narcs” coming to your door under Trump’s authoritarian command, worry no more. In Gorsuch’s dissent in United States v. Carloss, he argued that the police did not have the implied consent to enter a property full of “no trespassing” signs and knock on the front door of the house for a warrantless “knock and talk.”

In this dissent, Gorsuch complains about such overreach: “A homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”  Gorsuch then states that this is clearly not the intent of the Founders in framing the Constitution. Democrats should learn to accept the boon they’ve been given.  If Trump does end up becoming the fascist autocrat he is made out to be, at least we can look to Gorsuch not to let us fade silently into the night.

What about disregarding everything I just said and trying to stop the nomination of Gorsuch anyway?

Senate Minority Leader Chuck “Fake Tears” Schumer has gone on record saying, “Make no mistake, Senate Democrats will not simply allow but require an exhaustive, robust, and comprehensive debate on Judge Gorsuch’s fitness to be a Supreme Court Justice.” But if there’s one thing Democrats should know, is that they have absolutely no way of preventing the upcoming nomination, and it’s partially their fault. As of now, there are 52 Republican senators and 46 Democratic senators with 60 votes required to confirm Gorsuch. Normally, Republicans would utilize their full resources to convince 8 Democrats to side with them. However, Republicans posses something called the Nuclear Option, and Trump has an itchy trigger finger. The Nuclear Option is a parliamentary procedure that allows the presiding officer of the Senate (Vice President Mike Pence) to make a ruling on the validity of a Senate rule such as the amount of votes needed to end a Supreme Court nominee filibuster. Once the ruling is made, they need a simple majority of 51 votes to permanently change the votes needed to confirm a nominee to another simple majority of

51 as opposed to 60. Sucks right? Well, the Nuclear Option was recently used by the Democrats on November 21, 2013 in order to push several of Obama’s Executive and non-Supreme Court judiciary appointments, marking the first actual use of a threat that was conceived in 1913 and supported by Nixon when he was Vice President. Let me take this moment to make a joke about Democrats being the ones to choose the “nuclear option” given that Truman (a Democrat) decided to drop the atomic bomb. If Democrats in the Senate push Republicans on this confirmation, the Republicans have Trump’s full-fledged support in using the nuclear option. If Democrats put on a showy fight for their constituents but ultimately accept Gorsuch, they may prevent the rules of nomination from being changed, at least until the next Judge dies or retires. If Democrats can make it until midterm elections and muster up enough support (but mostly outrage) to win back the Senate, they might be able to actually do something about Trump’s future Supreme Court picks. Alas, there’s likely to be a large degree of political posturing from both sides anyway. The nomination hearings should begin in 5 weeks and I’m already preparing myself for the show.