Richard L. Hasen writes: Is the Supreme Court about to cause great political upheaval by getting into the business of policing the worst partisan gerrymanders? Signs from last week suggest that it well might.
At the very beginning of its term back in October, the court heard oral arguments in Gill vs. Whitford, a case challenging Wisconsin’s plan for drawing districts for its state Assembly. Republican legislators drew the lines to give them a great advantage in these elections. Even when Democrats won more than majority of votes cast in the Assembly elections, Republicans controlled about 60% of the seats.
The court has for many years refused to police such gerrymandering. Conservative justices suggested that the question was “nonjusticiable” (meaning the cases could not be heard by the courts) because there were no permissible standards for determining when partisanship in drawing district lines went too far. Liberals came forward with a variety of tests. And Justice Anthony M. Kennedy stood in the middle, as he often does. He argued that all the tests liberals proposed didn’t work, while trying to keep the courthouse door open for new tests. [Continue reading…]
Moustafa Bayoumi writes: The US supreme court has decided that the Trump administration’s Muslim ban can proceed in full, even as legal challenges to the ban continue. What a terrible and portentous decision not only for citizens from the banned countries but also for the very health and future our own nation.
With their short and unsigned orders, the supreme court appears now to be favoring the government’s argument, suggesting the court will rule with Trump when the legal challenges to the ban are finally heard. This may be unsurprising when considering the traditional deference the court has afforded the executive branch in matters of immigration, but it is no less infuriating.
After all, the constitution forbids discriminating on the basis of religion, and the Immigration and Nationality Act prohibits discrimination on the basis of nationality and place of birth. It would be a travesty of justice to enshrine this kind of official bigotry against Muslims due to the separation of powers doctrine.
But the supreme court has made many wrongheaded decisions in the past. In Dred Scott v Sanford (1857), the court ruled that African Americans could not become citizens, further enshrining slavery into the American system.
The case of Plessy v Ferguson (1896) upheld the constitutionality of racial segregation. In Buck v Bell (1927), the court sided with eugenics (yes, eugenics!) by legally upholding the forced sterilization of people with intellectual disabilities. Fred Korematsu challenged the constitutionality of Japanese internment in Korematsu v United States (1944) and lost. Will we soon be adding the Muslim ban cases to this shameful list? [Continue reading…]
The Washington Post reports: The Supreme Court on Monday granted President Trump’s request to fully enforce his revised order banning travel to the United States by residents of six mostly Muslim countries while legal challenges to it proceed in lower courts.
It was a victory for the White House, which has seen the courts trim back various iterations of the travel ban, and it bodes well for the administration if the Supreme Court is called upon to finally decide the merits of the president’s actions.
Two lower courts had imposed restrictions on Trump’s new order, exempting travelers from the six countries who had “bona fide” connections with relatives — such as grandparents, aunts or uncles — or institutions in the United States. Those exemptions to the president’s order, issued in the fall, were along the lines of those imposed by the Supreme Court last summer on a previous version of the travel ban.
But in an unsigned opinion Monday that did not disclose the court’s reasoning, the justices lifted the injunctions, which had been issued by federal judges in Hawaii and Maryland.
Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would not have lifted the restrictions. The new ban also bars travelers from North Korea and Venezuela, but they were not affected by the injunctions. [Continue reading…]
Joy-Ann Reid writes: Long suppressed talk about the sexual predation of men, in Hollywood, politics, business, the news industry, professional sports and life in general has swept across the country, exposing decades of dirty laundry and putting an entire nation of men on notice and on edge.
“The discussion” in which the nation is engaged almost daily at this point, has exposed the rank hypocrisy of a right-wing “Christianity” that would sooner see a child molester stalking the well of the United States Senate than free its captive base to support a Democrat, and which still stands foursquare behind braggadocious predator-in-chief Donald Trump.
It has put on display the Republican Party’s radical lack of moral conviction as its leaders rush to condemn the gross, decade-old antics of now Sen. Al Franken, who has at least apologized for his past misbehavior, while they smirk from behind the cameras at Fox News where they are surrounded by anchor women in the required uniform of tight sweaters, mini-skirts, and four-inch heels. Among the Republicans ripping Franken for kissing a woman without her consent and snapping a juvenile “groping” picture in 2006: the great hypocrite Trump himself, of the “I just kiss beautiful women and grab ’em by the pussy” un-humble brag of 2005.
The national moment of self-reflection on the culture that produces such entitled men has compelled the left to indulge in its favorite ritual: curling into the fetal position as it self-flagellates over the eternal sins of the Clintons. It’s as if they’ve forgotten that the former president who left office 17 years ago indeed paid a price, including years of forensic investigation culminating in impeachment for his illicit affair with a 24-year-old White House intern.
Well if we are getting about the business of re-examining the past indecency of powerful men, we’d be remiss not to include the moment in 1991 when a woman was not believed and her alleged abuser was elevated to the highest court in the land, where he remains 26 years later. [Continue reading…]
Mark Joseph Stern writes: Following his nomination to the Supreme Court, Neil Gorsuch was packaged by his wealthy benefactors as the judicial equivalent of a carrot cake: mild and wholesome with the occasional hint of spice. Now that the justice has been safely installed on the court for life, he has revealed himself to be more akin to melted sorbet: sickly sweet and insubstantial with a tangy finish that induces slight nausea. Gorsuch’s abrupt pivot to arrogance has been on full display in his bumptious opinions and questions from the bench. But it also appears to be infecting his interactions with justices behind the scenes. Whispers emerging from the court indicate Gorsuch is more likely to alienate than influence even his conservative colleagues.
The latest sign of trouble comes from NPR’s Nina Totenberg, who dropped in on the indispensable Supreme Court podcast First Mondays to dish some gossip about the newest justice. Totenberg, a renowned court reporter who is friendly with several justices, noted that Gorsuch “ticks off some members of the court—and I don’t think it’s just the liberals.” Without exposing her sources—“you talk to former law clerks, you talk to friends, you talk to some of the justices”—Totenberg then dropped a bombshell:
My surmise, from what I’m hearing, is that Justice [Elena] Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough—or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.
Why is Totenberg’s reporting here so extraordinary? Because it’s astonishing that any reporter would hear details from conference, let alone score some genuinely juicy scuttlebutt. Conference is famously sacrosanct: It’s where the justices gather to cast their votes in the cases of the week, with each explaining his or her reasoning in order of seniority. Nobody else is allowed to attend. If rumors leak about a justice’s behavior in conference—and they basically never do—it is almost certainly a justice who leaked them. And when justices leak—which again, happens very rarely—they do so on purpose. The fact that we know about the “battle” in conference between Gorsuch and Kagan suggests that someone on the court wants us to know. [Continue reading…]
Bloomberg reports: The U.S. Supreme Court reinforced President Donald Trump’s travel ban, saying he can bar thousands of refugees from entering the country while the justices prepare to hear a broader challenge to the policy.
The high court put on hold a federal appeals court ruling that had said Trump couldn’t apply his travel ban to refugees once a resettlement agency had promised it would provide basic services for them. About 24,000 refugees are covered by those agreements.
The Supreme Court is scheduled to hear arguments Oct. 10 on Trump’s travel order, which imposed a 90-day ban on people entering the U.S. from six mostly Muslim countries and a 120-day ban on refugees. The policy is designed to give officials time to assess vetting procedures. Lower courts have said Trump overstepped his authority and unconstitutionally targeted Muslims. [Continue reading…]
The Washington Post reports: The tranquil home of James Isaacs, an Episcopal priest, and wife Maggie Brewinski Isaacs, a pediatrician, sits on a hill above a creek on 5½ wooded acres in suburban Maryland. Inside, an unoccupied bedroom awaits a refugee ready to join the family.
But the 16-year-old girl, blocked by the Trump administration’s travel ban, is stuck in an Ethiopian refugee camp and might never see the room.
“The children ask us when their big sister is going to arrive,” James Isaacs said of his sons, ages 4 and 2, one of whom was adopted from South Africa. “We are left in this time of uncertainty because of the administration and the Supreme Court decision.”
The girl, from the East African nation of Eritrea and identified to The Washington Post only by her initials “M.T.” to protect her privacy, is an “unaccompanied minor refugee” — a young, displaced person without a parent or guardian who is seeking refuge in the United States.
On July 19, the Supreme Court allowed the Trump administration’s travel ban to stand, leaving about 100 unaccompanied minor refugees stranded overseas. The decision comes after months of judicial back-and-forth over the ban, casting doubt on the children’s plans to live in the United States.
“They are youth that are on their own,” said Autumn Orme, a director at Lutheran Social Services of the National Capital Area, which works with unaccompanied minor refugees. “I find it pretty extraordinary that they are managing this all on their own. These are children that don’t have parents to care for them.”
The result: M.T., an orphan who fled child labor in Eritrea two years ago and was approved by the State Department to live in the United States, remains in legal limbo. [Continue reading…]
Farhana Khera and Johnathan J. Smith write: Lost amid the uproar over the Trump administration’s travel restrictions on citizens from Muslim-majority countries and the impending showdown at the Supreme Court are the insidious ways that the government has already begun to impose a Muslim ban.
It’s doing so through deceptively boring means: increasing administrative hurdles and cementing or even expanding the current travel restrictions that are not under review at the court. The collective impact of these changes will be that a permanent Muslim ban is enshrined into American immigration policy.
Last month, the Supreme Court agreed to hear two cases that challenge the legality of President Trump’s immigration and refugee executive order. And it buoyed the Trump administration’s xenophobia when it put the temporary ban back in place and denied entry to people who lack a “bona fide relationship” with an American citizen or entity. (Astonishingly, the government claims that grandparents, aunts, uncles, cousins and the affianced lack such a relationship, but a federal judge in Hawaii has disagreed.)
While these short-term travel restrictions will be at the heart of what the Supreme Court considers this fall, they have never been the president’s ultimate objective. Instead, his endgame, as he repeatedly made clear on the campaign trail, is the “total and complete shutdown of Muslims entering the United States.” And in a quiet, under-the-radar manner, his administration has been hard at work to make that happen. [Continue reading…]
The ban applies to people from six Muslim-majority countries and refugees, but one clause in the court’s order has raised more questions than it answers about who will actually be allowed entry into the US.
People from Iran, Libya, Somalia, Sudan, Syria and Yemen and all refugees are not allowed to enter the US unless they have “a credible claim of a bona fide relationship with a person or entity in the United States”, according to the court.
Naureen Shah, the director of Amnesty International USA’s Security and Human Rights Program, said that even as trained lawyer she had difficulty interpreting its meaning.
“As a bare minimum it introduces uncertainties into life-and-death decisions for people,” Shah said. “It’s so brazenly dismissive to that chaos it is going to unleash.”
For instance, if one American doctor agrees to provide medical care to a child injured in a refugee camp, does the child have a bona fide relationship with the doctor, or the hospital the doctor works at?
In addition, it is not yet clear how the departments of state and homeland security will explain the definition of a bona fide relationship to airports abroad.
Conservative supreme court Justice Clarence Thomas warned in his opinion on the case that the court’s decision “will invite a flood of litigation”.
Human rights advocates agreed. [Continue reading…]
The Washington Post reports: With newly elected Scott Walker in the governor’s office and a firm grip on the legislature, Wisconsin Republicans in 2011 had a unique opportunity to redraw the state’s electoral maps and fortify their party’s future.
Aides were dispatched to a private law firm to keep their work out of public view. They employed the most precise technology available to dissect new U.S. Census data and convert it into reliably Republican districts even if the party’s fortunes soured. Democrats were kept in the dark, and even GOP incumbents had to sign confidentiality agreements before their revamped districts were revealed to them. Only a handful of people saw the entire map until it was unveiled and quickly approved.
In the following year’s elections, when Republicans got just 48.6 percent of the statewide vote, they still captured a 60-39 seat advantage in the General Assembly.
Now, the Supreme Court is being asked to uphold a lower court’s finding that the Wisconsin redistricting effort was more than just extraordinary — it was unconstitutional.
Such a conclusion would mark a watershed moment for the way American elections are conducted.
The Supreme Court has regularly — and increasingly — tossed out state electoral maps because they have been gerrymandered to reduce the influence of racial minorities by depressing the impact of their votes.
But the justices have never found a plan unconstitutional because of partisan gerrymandering — when a majority party draws the state’s electoral districts to give such an advantage to its candidates that it dilutes the votes of those supporting the other party.
A divided panel of three judges in Wisconsin, though, decided just that in November. It became the first federal court in three decades to find that a redistricting plan violated the Constitution’s First Amendment and equal rights protections because of partisan gerrymandering.
The Supreme Court could announce as soon as Monday that it is either affirming or reversing the lower court’s decision, or, more likely, accepting the case for full briefing and arguments in the term that begins in the fall.
The case comes at a time when the dusty subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress. Barack Obama has said one of his post-presidency projects will be to combat partisan gerrymanders after the 2020 Census.
In Wisconsin, it already has become a hot topic.
“If there’s one word that defines the last year or year and a half in this country, it’s ‘rigged,’ ” said Dale Schulz, a Republican and former Wisconsin legislator who has joined with a Democratic counterpart to urge an end to the way the state handles redistricting. “People have come to realize their votes aren’t as important as they once were. And that’s really what this whole case is about: It’s about making sure people’s votes have equal value.” [Continue reading…]
Noah Feldman writes: Is Donald Trump trying to throw his own Supreme Court case? The president’s bid to be the Shoeless Joe Jackson of high-court litigation took a big step forward with an astonishing series of early-Monday-morning tweets. He insisted on calling his executive order restricting travel from six majority-Muslim countries a “travel ban,” denounced his own Department of Justice for watering down the original order, and — incredibly — called for strengthening the ban, presumably after the court has upheld the revised order.
All four tweets will be quoted by opponents of the travel ban. All four substantially strengthen the case for blocking the order as unconstitutional. Taken together, they amount to a nightmare scenario for the office of the solicitor general that must represent the president in court. Short of actually saying that the point of the order was to express anti-Muslim animus, there’s not much Trump could have done to weaken his case more. [Continue reading…]
The New York Times reports: President Trump rebelled on Monday against his own advisers who “watered down” his original executive order barring visitors from select Muslim-majority countries from entering the United States and who insisted on calling it something other than a travel ban.
Returning to one of the issues that animated the early days of his presidency and generated a court battle that has now gone to the Supreme Court, Mr. Trump argued that it was a mistake to revise the first order he signed and suggested that his administration should return to a “much tougher version.”
In a series of Twitter posts just two days after a terrorist attack killed at least seven people in London, Mr. Trump seemed to reject everything his own administration has done to win court approval for restrictions on entry from countries that he designated, both in terms of vocabulary and in terms of its provisions.
Emily Bazelon and Eric Posner write: At recent Senate hearings to fill the Supreme Court’s open seat, Judge Neil Gorsuch came across as a thoroughly bland and nonthreatening nominee. The idea was to give as little ammunition as possible to opponents when his nomination comes up this week for a vote, one that Senate Democrats may try to upend with a filibuster.
But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.” The Republican-dominated House, too, has passed a bill designed to severely curtail the power of federal agencies.
Businesses have always complained that government regulations increase their costs, and no doubt some regulations are ill-conceived. But a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that’s not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state “poses a grave threat to our values of personal liberty.”
The 80 years of law that are at stake began with the New Deal. President Franklin D. Roosevelt believed that the Great Depression was caused in part by ruinous competition among companies. In 1933, Congress passed the National Industrial Recovery Act, which allowed the president to approve “fair competition” standards for different trades and industries. The next year, Roosevelt approved a code for the poultry industry, which, among other things, set a minimum wage and maximum hours for workers, and hygiene requirements for slaughterhouses. Such basic workplace protections and constraints on the free market are now taken for granted. [Continue reading…]
The Nation reports: Few people in the Republican Party have done more to limit voting rights than Hans von Spakovsky. He’s been instrumental in spreading the myth of widespread voter fraud and backing new restrictions to make it harder to vote.
But it appears that von Spakovsky had an admirer in Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, according to e-mails released to the Senate Judiciary Committee covering Gorsuch’s time working in the George W. Bush Administration.
When President Bush nominated von Spakovksy to the Federal Election Commission in late 2005, Gorsuch wrote, “Good for Hans!” [Continue reading…]
The New York Times reports: In December 2005, Congress handed President George W. Bush a significant defeat by tightening legal restrictions against torture in a law called the Detainee Treatment Act. Soon afterward, Neil M. Gorsuch — then a top Justice Department official — sent an email to a White House colleague in case he needed “cheering up” about the administration’s setback.
The email from Judge Gorsuch, nominated by President Trump to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, linked to articles about a less-noticed provision in the act that undercut the rights of Guantánamo Bay detainees by barring courts from hearing their habeas corpus lawsuits.
“The administration’s victory is not well known but its significance shouldn’t be understated,” wrote Judge Gorsuch, who had helped coordinate the Justice Department’s work with Congress on the bill.
The email about the court-stripping provision — which the Supreme Court later rejected — is among more than 150,000 pages of Bush-era Justice Department and White House documents involving Judge Gorsuch disclosed by the Trump administration ahead of his Senate confirmation hearings next week.
Judge Gorsuch’s time in the executive branch was brief. He joined the Justice Department in June 2005 as the principal deputy associate attorney general, meaning he was the top aide to the No. 3 official in the department. He left in August 2006, when Mr. Bush appointed him as a federal appeals court judge in Denver.
But those 14 months were tumultuous ones for the Bush administration amid controversies over detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power. Judge Gorsuch’s job put him at the center of both litigation and negotiations with Congress over legislation about such topics.
References to those efforts may offer clues to Judge Gorsuch’s approach to the sort of national-security and executive power issues that rarely come before his appeals court but can be crucial at the Supreme Court.
In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review.
“I was extraordinarily impressed,” Judge Gorsuch wrote. “You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.” [Continue reading…]
The New York Times reports: The publicity-shy billionaire Philip F. Anschutz inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications like The Weekly Standard and The Washington Examiner.
Mr. Anschutz’s influence is especially felt in his home state of Colorado, where years ago Judge Neil M. Gorsuch, a Denver native, the son of a well-known Colorado Republican and now President Trump’s nominee for the Supreme Court, was drawn into his orbit.
As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.
“They say a country’s prosperity depends on three things: sound money, private property and the rule of law,” Judge Gorsuch said at the 2010 retreat, according to his speaker notes from that year. “This crowd hardly needs to hear from me about the first two of the problems we face on those scores.”
With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention.
The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. But it is not clear how well the two know each other, in part because the mogul and those around him keep a low profile. [Continue reading…]
The Hill reports: Sen. Richard Blumenthal (D-Conn.) on Thursday warned that the country is heading toward a “constitutional crisis,” moments after President Trump attacked him for sharing Supreme Court nominee Neil Gorsuch’s concerns with the president’s attacks on judges.
“I said to Judge Gorsuch and I believe that ordinarily a Supreme Court nominee would not be expected to comment on issues or political matters or cases that come before court, but we’re in a very unusual situation,” Blumenthal said on CNN’s “New Day.”
“We’re careening, literally, toward a constitutional crisis. And he’s been nominated by a president who has repeatedly and relentlessly attacked the American judiciary on three separate occasions, their credibility and trust is in question.”
Blumenthal said the president has also established a litmus test for his nominee to be “pro-life, to be pro-Second Amendment, to be conservative.”
Blumenthal told reporters Wednesday that Gorsuch called Trump’s tweets attacking federal judges “disheartening” and “demoralizing.”
A spokesman for Gorsuch later confirmed to CNN that the judge used the terms when describing Trump’s tweets during his meeting with Blumenthal.
Despite the confirmation by Gorsuch’s spokesman, Trump tweeted Thursday morning that those weren’t the judge’s true feelings.
“Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?” the president tweeted.
Blumenthal on Thursday urged Gorsuch to make his concerns public.
“Behind closed doors, Judge Gorsuch expressed disappointment with President Trump’s attacks on the judiciary, but a Supreme Court Justice must prove that he has the courage and independence to stand up to a President in public,” Blumenthal said.
“I asked Judge Gorsuch to make that statement publicly, and he declined.” [Continue reading…]
When Trump announced his nomination of Gorsuch to the Supreme Court, he made a public display of his ability to push the judge around.
Gorsuch is now showing both a lack of courage and lack of integrity. He is the only person who can confirm, without the possibility of contradiction, his own words and by so doing also that Trump is now, completely without justification, maligning Blumenthal.
Instead, Gorsuch is presenting himself as so desirous of a seat on the Supreme Court and so fearful of the man who offered him the job, that he dare not cross swords with Trump. And yet if he plucked up enough courage to merely confirm what he already said, what’s Trump going to do? Withdraw the nomination? I doubt it. More likely, he’ll brush it off and declare (while gritting his teeth) that it just goes to show how wonderfully independently minded is his pick.
The truth is, when Gorsuch described Trump’s attacks on judges as “disheartening” and “demoralizing,” these were not fighting words, but on the contrary, a rather mealy-mouthed challenge to a president who has very little respect for the U.S. Constitution.
Neal K. Katyal writes: I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court.
The nomination comes at a fraught moment. The new administration’s executive actions on immigration have led to chaos everywhere from the nation’s airports to the Department of Justice. They have raised justified concern about whether the new administration will follow the law. More than ever, public confidence in our system of government depends on the impartiality and independence of the courts.
There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland — perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.
I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.
Considerable doubts about the direction of the Supreme Court have emerged among Democrats in recent weeks, particularly given some of the names that have been floated by the administration for possible nomination. With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws. [Continue reading…]
Of this much we can be close to certain: Donald Trump did not give deep thought to his choice.
How can we be so sure?
There is an overwhelming body of evidence that Trump is incapable of deep thought. If evidence to the contrary exists, I have yet to see it.
Trump’s decision was most likely strongly influenced by pieces of information such as this: that when possible new members of the court were ranked in terms of which was most like Justice Scalia, Gorsuch ranked highest. For Trump, the idea that he could replace Scalia with a close match would seem to make the selection process a no-brainer.
Where least thought is required, there Trump reliably goes.
If Katyal is correct in his assessment of Gorsuch’s commitment to judicial independence, this is indeed the most important factor at play at a time when the rule of law is in question.