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The Originalism, Textualism and Strict Constructionism of Neil Gorsuch

[ 104 ] February 1, 2017 |

scalia

Pick your buzzword, what they all mean is that “Neil Gorsuch is a Republican reactionary who will vote the policy preferences of a Republican reactionary in politically salient cases, in opinions that may be written in any or no grand theory”:

On Tuesday, the Republican Party reaped the fruits of its unprecedented Supreme Court blockade. President Donald Trump announced the nomination of Judge Neil Gorsuch, a 49-year-old arch-conservative currently serving on the 10th Circuit Court of Appeals. Trump may have been the people’s second choice in the popular vote, but he will still have succeeded in putting a young, doctrinaire conservative on the Supreme Court.

Like the justice he will be replacing, Antonin Scalia, Gorsuch is an adherent of “originalism” and “textualism” as touchstones for his interpretation of the Constitution. As Scalia’s own jurisprudence reveals, however, these phrases amount to just another way of saying “conservative.”

Asked about another buzzword that was popular in the 1970s and 1980s, the late conservative Chief Justice William Rehnquist said that “a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.” Substitute “originalist” or “textualist” for “strict constructionist” and his analysis still applies.

Gorsuch will definitely be an “originalist” in the sense that Scalia was. That is, you can manipulate the levels of abstraction to reach almost any result you desire, and if there’s no possible historical case to be made for your political preference you can and will just ignore it.

And Gorsuch will also be a “textualist” in the sense that Scalia was. That is, in roughly 99% of cases the constitutional text is of no value in deciding a concrete case of any interest — OK, we have identified that the text says “unreasonable search and seizure” or “cruel and unusual punishment,” so now what? (In politically salient statutory cases, it means not mentioning legislative history in reaching the result you would have reached either way.) And in those rare cases where the constitutional text clearly forecloses your desired outcome, you can just assert that “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.”

So, yes, Gorsuch will most assuredly be an “originalist” and “textualist” in the sense that Scalia was. Which is why he should be filibustered even if his appointment was legitimate, which it isn’t.

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  • Hercules Mulligan

    In related news, suck-up with business interests pending before the Court Neal Katyal wrote an op-ed supporting Gorsuch that was obviously pre-written using friendly sources within the administration in order to make Gorsuch look bipartisan. Heckuva job, Neal!

    • Denverite

      Or, you know, it could be that Gorsuch is a highly respected conservative jurist. His ideological views are unacceptable to me, and the prior administration got well and truly screwed, but if you told me in a vacuum that a Republican president nominated him to SCOTUS, I’d probably shrug and say that it makes sense, and that it’s hard to see a better outcome given the (awful, horrible, bad) circumstances. (Actually, I take that back. Sykes would have been better, both because she’s better on women’s issues, and because she’s ten years older. But other than her, Gorsuch was about as good as we were going to get.)

      • tonycpsu

        From Katyal’s NYT piece:

        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.

        Regardless of how highly respected Gorsuch is, it’s intellectually dishonest of Katyal to whistle past how Gorsuch got nominated in the first place. “[I]f the Senate is to confirm anyone.” Well, Mr. Constitutional lawyer, that’s not just a matter of politics, it’s a matter of Constitutionality, so if you’re going to take to the paper of record to support the guy, you need to be weighing in on the question of how Gorsuch came to be nominated in the first place. He is the fruit of a poisonous tree. Hand-waving this away and offering your unqualified support (in a piece entitled “Why Liberals should Back Neil Gorsuch” that may or may not be Katyal’s headline, but which erases even this minimal acknowledgement of the fact that the nomination was stolen) is unacceptable.

        • Denverite

          Arguing about “whether the Senate is to confirm anyone” is such tedious wankery. They’re going to confirm him. They were going to confirm any Trump pick who was a bog-standard Republican judge. Katyal is writing in the world in which we live. He could have written a piece on the world that ought to be, but that’s a different piece, and he (rightfully, IMO) didn’t want to waste time writing it.

          • tonycpsu

            In context, it’s clear Katyal is noting that there’s a normative question about whether he should be confirmed, and that he’s using “is to be confirmed” in that normative sense.

      • Joe_JP

        The problem is that it isn’t “a vacuum” and various left leaning law professor types etc. realize this.

        If it was a vacuum, yes, put a gun to my head, I would say the pick was okay. Filibuster it on ideological grounds maybe, but those are the breaks. Lost the election. They get the pick. And, it’s 1:1. They aren’t replacing Ginsburg. But, it isn’t that.

        So, people are upset. And, the “world we live” includes responding to what actually happened in various ways & it isn’t just some sort of emotional catharsis we are going for here.

        ETA: And, even there, why should “liberals” “support” the guy as such as compared to centrists/conservative Dems maybe voting for him, the rest letting it go to a vote but voting “no”? The world we live win doesn’t really work that way.

      • vic rattlehead

        And Katyal is a well-known Supreme Court advocate who is certain to appear before SCOTUS many more times in the future. And Gorsuch is almost certainly going to be confirmed. So while he doesn’t need to say anything, if he does, well…it would be very foolish to say anything negative.

        I’m not saying he’s doing anything unethical, but I am saying it would be foolish of him to pull a Tribe (coming out forcefully against Sotomayor).

      • Dilan Esper

        if you told me in a vacuum that a Republican president nominated him to SCOTUS, I’d probably shrug and say that it makes sense, and that it’s hard to see a better outcome given the (awful, horrible, bad) circumstances.

        I’m not sure about this. If the Democrats actually had 51 votes and could deny confirmation, I think they should.

        NOT because of the Garland thing (I really am not outraged like the rest of LGM is about what the Republicans did there), but because you can force a more moderate nominee, just like the rejection of Bork got us Kennedy.

        The Democratic position should be that O’Connor or Kennedy should be the kind of nominee that the Republicans should put up if they want the votes of Democrats. No more Scalias and Alitos.

    • yet_another_lawyer

      Atrios made the same assertion this morning and it strikes me as nonsense. It was most likely pre-written, but you didn’t need “sources” for that. It was down to two people, quite publicly, yesterday morning or even earlier. It’s not that hard to write two pieces and pull the trigger on the one that ends up being relevant, particularly for something so short. Journalists do it all the time, in much the same way that obituaries are pre-written for old celebrities without knowing when exactly they will die. Katyal may or may not have administration sources, but the op-ed has almost no probative value towards that question.

      I’m pretty skeptical the Trump administration would leak it beforehand in exchange for… what, the hope that the NY Times will say nice things about them? Does that really sound like Trump to you?

      • BigHank53

        If you’re assigned the SC beat, you probably have a page of notes for every judge on the Federalist Society’s hotlist, and you’re pulling them out and updating them when the GOP is in power. It probably took less than thirty minutes to pull that essay together, and yes: there was another one written for the other guy.

  • Slothrop2

    To all of you HRC-primary voters, I would like to say thank you for fucking nothing.

    And the Senate Democrats will almost certainly play along. Diane Feinstein. Good God.

    • Abbey Bartlet

      What if–hear me out–you fucking got over a primary that ended nearly a year ago?

      • Slothrop2

        Sure – so long as most of you get over that Comey + e-mails = Donald Trump.

        Let’s face it – we live in a really conservative country. I suppose a silver lining is that the outcome of immiseration may compel the goobers to move to the left. Maybe a complete collapse of the social-security net may result in some kind of Cloward-Piven solution in the form of universal-basic income.

        • Abbey Bartlet

          1) Things that happened in the general election matter.
          1a) We actually know the effects of those things.
          1b) Comey would have torpedoed any Dem.
          2) WE DO NOT LIVE IN A REALLY CONSERVATIVE COUNTRY.

          • efgoldman

            3) slothrop is a troll

        • And maybe after Cheeto Caligula nukes the planet into oblivion, everyone gets a free pony. That outcome is just as likely as your wank fantasy above.

        • delazeur

          Let’s face it – we live in a really conservative country.

          Clinton got 3 million more votes than Trump while running to Obama’s left, dumbass.

        • sherm

          Let’s face it – we live in a really conservative country.

          And that’s why Bernie should have been the Democratic nominee rather than Hillary?

          • ΧΤΠΔ

            It isn’t the leftism that’s the problem, it’s the untested chin.

            • ΧΤΠΔ

              ETA: Yeah, I’m aware of the Clinton Rules/20+-year propaganda campaign, but my impression is that Sanders would probably have performed below-replacement level against a standard Repub/SCLM chickenfucking campaign. (Although I can see this being slightly mitigated by reduced purity-pony defections). Obligatory disclaimer is that I never really disliked either candidate.

              And already we’ve spent too much time talking about the primary, so STFUADIAF.

              • Slothrop2

                “Replacement level,” and “scrupulously fair,” have become hackneyed.

                • ΧΤΠΔ

                  I never said “scrupulously fair.”

                • I would just like to note the irony of Slothrop complaining about something being “hackneyed”.

              • TVTray

                Maybe. But we do know that Hillary lost.

                • *won the popular vote by almost three million votes and “lost” the electoral college as a direct result of factors entirely beyond her control, including, but not limited to, historically unprecedented partisan FBI intervention in the news cycle, media incompetence, and Russian interference in the electoral process.

        • Scott Lemieux

          “Let’s face it – we live in a really conservative country. Which, we can know to an absolute certainty, would have given 400 electoral votes to Bernie Sanders. Merle Haggard is a neoliberal. I am not a crank.”

    • Ramon A. Clef

      Don’t know why it suddenly occurs to me that Loomis hasn’t done a dead horse post in a while.

      Odd that this should occur to me out of the blue.

      • Thom

        Yeah, we’ve got the beat.

    • sherm

      To all of you HRC-primary voters, I would like to say thank you for fucking nothing.

      I voted for Bernie and thought that she was a terrible candidate, but move on already, and direct your anger where it belongs, like at the media, the FBI, and the angry old white assholes who enthusiastically voted for Trump.

    • CaptainBringdown

      These comments ought to be confined to Loomis’ “Dead Horses” series.

      ETA: Grr, Ramon beat me to it!

      • Ramon A. Clef

        \m/

    • To all the people who spent the whole election cycle bitching about HRC and/or had the opportunity to vote for her but didn’t, I’d like to say thank you for fucking nothing.

      (Note: I voted for Sanders in the primary, but I got over the fact that he didn’t win it, because I’m not five years old and understand how first-past-the-post voting works.)

      • Rob in CT

        +1.

        And as usual, Slothrop is incoherent. “Conservative Country” (that voted +3 mil for Clinton and elected Obama twice) and “Bernie shoulda been the nominee” don’t exactly play well together.

        • Slothrop2

          We live in a conservative country – we have no imagination for utopia.

          The Democratic Party is conservative, politically. The Democratic Party has presided over 40 years of stagnant wages. The Democratic Party has been complicit in deranged and pointless military violence since Korea. The Democratic Party has been captured by investment banking, military profiteers, and Silicon Valley libertarians.

          “Running to the left of Obama.” Obama was disappointingly a neoconservative, neoliberal. HRC would’ve been far worse.

          • Tyto

            How does running the avowed socialist produce a victory in a conservative country?

            ETA: Or, what 47 other commenters have noted. No, this is on everybody who couldn’t take yes for an answer and pull the lever for a viable not-Trump.

            • Slothrop2

              Sanders would have stolen the populist mantle away from Trump. He also had all of the energy from younger voters.

              The Democratic establishment needs to be destroyed. Pushing HRC was incomprehensibly stupid.

              • Tyto

                Despite, you know, her winning the primary, with actual Democratic votes.

                I know you and others cannot comprehend that this isn’t 1996, but the party “establishment” has already moved to the left, and so has she.

                • Slothrop2

                  This is completely delusional. She was beaten by a charlatan fascist preaching right-wing racist populism!

                  If the Democrats actually cared about working people, she would’ve won.

                • I will have to give “The FBI threw the election to a fascist, therefore the Democrats don’t care about the working class” points for novelty, if nothing else.

              • Abbey Bartlet

                Sanders would have stolen the populist mantle away from Trump.

                It wasn’t a populist mantle. It was a white supremacist mantle. Do you really not get that?

              • Rob in CT

                Sanders would have stolen the populist mantle away from Trump

                Well, it depends on whether voters in the critical states voted for him because Trump said stuff about trade or if they voted for him because he promised to kick immigrants, foreigners, and criminals responsible for the imaginary American Carnage he blathers about (read: the blahs).

                Sanders very well might have connected better with mid-western voters upset about deindustrialization and, thus, maybe he wins. I could totally see a scenario where he wins the popular vote by less than Hillary did but wins the EC, by getting more MI/WI/PA votes but fewer CA, etc. votes. Which obviously we’d take! But that is not the only scenario, and your total confidence in it is ridiculous.

          • Obama was disappointingly a neoconservative, neoliberal. HRC would’ve been far worse.

            lol

          • Rob in CT

            1. This still doesn’t make any sense. If we live in a Conservative country, running a True Leftist ™ doesn’t make sense (I actually think Bernie would’ve done ok – maybe a little better, maybe a little worse, but fundamentally similar to Clinton).

            2. Once again, only the Democrats have agency, apparently. Not the voters, not the GOP, not foreign actors… nope, it’s ALL about the Democrats. Please.

            3. Also: The Democratic Party was NEVER a pacifist organization, nor was it ever a revolutionary socialist organization. You consistently judge the Dems against some fantasy ideal past Dems who didn’t actually exist.

            4. “Obama was disappointingly a neoconservative, neoliberal. HRC would’ve been far worse.” Bernie would’ve disappointed you too. You’d have been whining about how useless he was within months.

            • Abbey Bartlet

              You consistently judge the Dems against some fantasy ideal past Dems who didn’t actually exist.

              And don’t judge them against the actual past Dems, who were, you know, considerably more conservative.

          • Hogan

            The Democratic Party has presided over 40 years of stagnant wages.

            Ah.

            • Scott Lemieux

              That 4 years where the Democrats controlled Congress and the White House simulatenously was the only time in the last 40 years Congress was allowed to pass laws. True story.

    • delazeur

      Fuck off. Anyone who thinks that Sanders would have outperformed Clinton in the general is naive.

      On the other hand: to all of you Sanders primary voters who did not support Clinton in the general, I would like to say thank you for fucking nothing.

      • Kerans

        Hey, Sanders was clearly more attractive to all the conservatives that apparently dominate this country.

      • efgoldman

        Anyone who thinks that Sanders would have outperformed Clinton in the general is naive.

        No they’re not.
        They’re delusional.

        • Dilan Esper

          I have no idea and neither do you. People assume that centrists are always more electable than leftists, but that depends on counterfactuals that nobody really knows the answer to.

          Having said that, I have the same low opinion of Sanders voters blaming everything on Hillary voters as I do of Hillary voters blaming everything on Sanders voters. We all voted for who we voted for in the primary. It’s over.

          • Abbey Bartlet

            I have the same low opinion of Sanders voters blaming everything on Hillary voters as I do of Hillary voters blaming everything on Sanders voters.

            You realize we’re blaming them for their actions once there was a nominee, right? Their actual actions they actually took and the actual result? Not the theoretical result from a theoretical primary in which he mysteriously picks up 4 million votes?

            • Dilan Esper

              Whose actual actions?

              Stein basically got the votes of left-wing dissenters from the two party system, who never vote for the Democratic nominee.

              Those Sanders voters you guys are complaining about voted for Hillary en masse.

              • Except the ones who wrote him in or stayed home. Or voted Stein – she received more votes in 2016 than she did in 2012, IIRC.

                IIRC, the number of write-in votes for Sanders in one of the states Clinton narrowly lost was greater than the number of votes by which she lost that state to Tangerine Trujillo. (I want to say MI or WI, but I’m not 100% certain about that.)

              • Abbey Bartlet

                Those Sanders voters you guys are complaining about voted for Hillary en masse.

                No one is complaining about the Sanders voters who didn’t support Hillary, Dilan.

                And I think you’ll find plenty of Obama-Stein voters, and Stein-Gillibrand voters.

                • Rob in CT

                  Who did support Hillary, you mean.

                • Abbey Bartlet

                  Yes, sorry. I’m sure Dilan worked it out. He’s very smart, you know.

        • TVTray

          Could be. But we do know that Hillary underperformed Trump, and now he’s the president.

          • It is certainly curious that the candidate who won the popular vote by nearly three million ballots is being said to have “underperformed”.

            • Redwood Rhiadra

              She underperformed among the only category of voters who matter to Slothrop and TVTray and Dilan.

              White Men.

    • If D politicians are never going to be acceptable to you no matter how many people get behind pushing them to be more progressive, what are you doing here, exactly?

      Or the dead horse thing.

    • Murc

      Slothrop, you gotta stop making the rest of us Sandernistas look bad. It’s deeply embarrassing.

      • econoclast

        Right? This shit is fucking infuriating. I like Sanders, but whatever good he could have done is being undermined by the loudmouth asshole contingent his supporters.

        • ΧΤΠΔ

          Was the PUMA contingent ever this bad/influential after the 2008 primary? ‘Cause compared to that, last year was a mutual slapfight.

          (sees his own above comment, goes to die in a fire)

          • Abbey Bartlet

            No. I don’t know if the fact that we won in the general is why, but no.

            • Origami Isopod

              I disagree. They did simmer down after the general election, but after the primary they were outraged. Harriet Christian made her infamous remarks after the primary, IIRC.

        • TVTray

          Hmm. Maybe Slothrop is bringing his numbers down a bit, but Bernie still is the most popular politician in America

          • Abbey Bartlet

            Only with people who aren’t paying attention to his actual votes.

      • Slothrop2

        At this point, what does Sandernista mean? It means persistent reminders to “liberals” about what it means to be a leftist. There should be no question that the Democratic Party has clearly abandoned workers – this is obviously the lesson of this election, a lesson about which Scott Lemieux skipped.

        • Abbey Bartlet

          Smh Scott Lemieux didn’t even vote.

          • tonycpsu

            DIDN’T. EVEN. VOTE. ftfy

    • howard

      honestly, it gives you satisfaction to reveal yourself as an ass day in and day out? is your life really that empty?

      • ΧΤΠΔ

        Don’t think he should be banned, yet, but the admins might want to start editing comments.

    • msmarjoribanks

      If you care who’s on the SC, it shouldn’t matter who won the Dem primary, so this is an odd topic to try to re-argue the primary in connect with.

      The problem is the Republicans have done a MUCH better job of pushing their POV about the judiciary and mobilizing people who vote based on SC picks, whereas most centrist, swing voters, and probably even those on the left don’t care about the Court or buy into rightwing arguments that it’s liberal.

      I saw/heard way too many Bernie voters and “oh, both parties are the same” types dismissing the fear of what a Trump appointment would do on the SC with “Trump says gay marriage is settled law” or “Trump is really pro choice.” It’s that kind of thing that makes me feel like there’s no point in even trying when people are so relentlessly ignorant about how the system works.

      And of course this is an issue on which Trump really doesn’t matter vs. any other Republican who could have been nominated. He doesn’t care about the SC and probably couldn’t tell you how Garland and Gorsuch differ. I was irritated that when he blathered on about wanting a judge like Scalia in the debates that no one called him on it and asked him to explain what specifically he liked about Scalia’s judicial philosophy and what his favorite Scalia-authored opinions were. But he was certainly going to let the Federalist Society or Pence or the like pick his appointment–there was NO question about that.

  • Denverite

    [Obligatory point about “textualism”: Scott is mushing together essentially four “doctrines”: statutory textualism, constitutional “textualism,” originalism, and strict constructionism. His criticisms on the last three are dead-on. “Strict contructionism” isn’t a legal doctrine — it’s a philosophy that says you’re supposed to screw over civil plaintiffs and criminal defendants. Constitutional “textualism” also isn’t really a doctrine — it’s applying the basic rules of statutory textualism (which is) in a way that makes no sense because the theoretical underpinnings for why those rules exist don’t apply in the constitutional context. Originalism is a legal doctrine, but it’s a bad one, because you either say that they Eighth Amendment permits drawing and quartering, or it becomes so amorphous that it’s essentially not a doctrine any more.

    Statutory textualism, in contrast, is a valid legal doctrine. The saying is that we’re all (statutory) textualists to some degree — the only question involves that degree. To super-simplify it, it basically says that because statutes can be changed relatively easily (so if the court interprets them wrongly, they can be changed), and because it is also relatively easy for bad actors to insert false flags in the legislative history, you need to try to interpret and apply statutes as much as possible based solely on the text of those statutes, and various canons of construction that only focus on the text. These are legitimate, good points. There are also good arguments as to why strict textualists overrely on the text of statutes [see Posner], but this is all very much a legitimate, ongoing debate amongst judges and academics.]

    • Mark Field

      It’s not so much Scott who mixed statutory and constitutional textualism together, but Scalia. And Scalia’s statutory textualism is pretty incoherent, even if it originates (sorry) in a legitimate doctrine.

      • Denverite

        And Scalia’s statutory textualism is pretty incoherent, even if it originates (sorry) in a legitimate doctrine.

        This is almost* 100% backward. Scalia’s 1986 Suffolk law review article is maybe the most cited piece on textualism in the past 40 years.

        * Almost because Scalia’s views on textualism did start to get unhinged going back a decade or so. Part of it was that they started to interfere with his preferred results in cases. Part of it no doubt was a cognitive slip likely brought on by hypertension.

        • Mark Field

          Scalia’s article gets cited a lot because it’s wrong, and because people need to refute it.

          Putting that aside, Scalia went off the rails on pseudo-textualism, even with statutes, a while ago (you say a decade, I’d say longer).

          Anyway, I don’t mean to debate abstract points of legal doctrine here, I just think Scott’s conflation of the 2 forms of “textualism” is not really a sin in the context of Scalia.

          • mds

            Scalia’s article gets cited a lot because it’s wrong, and because people need to refute it.

            Yeah, apparently the legal world is a lot different than the scientific one.

            “Of course they deserve tenure. Look at how much their papers have been cited.”

            “By all the people successfully proving them wrong.”

            “That just shows how smart they are at falsifying data to arrive at their desired conclusions. Don’t we want smart people to have tenure?”

            It was then that holdouts realized the true horror of putting lawyers in charge of the tenure committee.

            • Scott Lemieux

              I admire Posner in many ways, but he’s one of the bigger culprits in this ranking-scholars-by-cite-counts shit.

  • Abbey BTW brought it to my attention on Twitter that Gorsuch was in my class at Columbia. I was thinking the name was familiar because it combines two people’s names who I’ve worked with.

    • Abbey Bartlet

      Bianca has informed me that she has no dirt on him, however, making her COMPLETELY USELESS.

      • howard

        he’s a right-winger: isn’t that dirt enough?

      • BigHank53

        Dammit, I was looking forward to having an actual goat-fucking child molester. Thanks for nothing, Donald.

      • Student paper found a quote where he called student protesters “superficial” . . .

  • Bitter Scribe

    This morning I was horrified to learn that Illinois apparently is poised to outlaw abortion literally the minute that Roe is repealed.

    • Joe_JP

      I wonder if state courts since then have interpreted the state constitution on privacy etc. grounds to open up independent state grounds to protect abortion rights.

    • efgoldman

      Illinois apparently is poised to outlaw abortion literally the minute that Roe is repealed.

      With substantial Dem majorities in both houses? Really?
      (All I know about IL state politics is that governors eventually go in the slammer.)

      • Bitter Scribe

        Read Neil Steinberg’s excellent column in the Chicago Sun-Times (linked above). The law is already on the books and (apparently) will go into effect automatically the minute Roe is overturned. Reversing it would require overriding the veto of the Montgomery Burns clone in the governor’s mansion, which is by no means a sure thing, substantial Dem majorities or not.

  • liberal

    The guy who really destroyed originalism was Ronald Dworkin.

  • Mark Field

    I think I’d prefer that the Dems oppose Gorsuch on the basis of Garland. That’s an easily understandable position, and one they can sell in soundbites (McConnell wanted the people to decide — they did; lots of great tu quoque statements from various R Senators). The public at large doesn’t understand theories of interpretation, so the best we could do is a campaign of horribles. But those horribles (mostly) won’t come to pass until after the next appointment, so they run the risk of being seen as crying wolf.

    • Joe_JP

      They can oppose him in various respects and important groups in their base care about the ideological stuff. Sure, “originalism is bunk” isn’t going to do much here. But, the hearings at least should bring out this sort of stuff, sell the Democratic brand.

    • econoclast

      The Democrats need to make what happened to Garland a rallying cry. They really should have started a year ago.

    • xq

      Dems should definitely oppose Gorsuch on the unpopular things the court will do when controlled by the right. No one has strong opinions on senate procedure.

    • Dilan Esper

      I think I’d prefer that the Dems oppose Gorsuch on the basis of Garland. That’s an easily understandable position, and one they can sell in soundbites (McConnell wanted the people to decide — they did; lots of great tu quoque statements from various R Senators). The public at large doesn’t understand theories of interpretation, so the best we could do is a campaign of horribles.

      This is totally wrong. Nobody cares about procedure. No voters who weren’t voting for Hillary anyway cared about whether Merrick Garland got a hearing. And everyone knows that everyone in politics is hypocritical on judicial nominations.

      Democrats should run on the Supreme Court as a naked political issue. Stop making up phony procedural justifications that nobody seriously believes in. Just say flat out “we want a Supreme Court that doesn’t rescind the constitutional right to abortion or contraception, that doesn’t nullify gay Americans’ marriages, and that doesn’t take away their health care”. That’s the message. (If you need a refresher course, go back and read Ted Kennedy’s speech about “Robert Bork’s America”.)

      Procedure in judicial confirmations is bullshit. Hearings are bullshit. And everyone who is honest knows that if there had been a vacancy in 2008, Democrats wouldn’t and shouldn’t have let Bush fill it.

      Stop bullshitting the American people. The reason we think this is important is because of the results of cases. And our side is, for the most part, the popular side of that debate. So let’s make the case.

      • Joe_JP

        Nobody cares about procedure.

        Yes they do. Because procedure matters. HOW much they care is something else; deciding on principle alone is hard, sure. But, it clearly from the evidence available made the situation rankle more for lots of voters.

        People win and lose. Doesn’t suddenly mean the winners should have carte blanche just because they won. From childhood, we have basic rules of fairness there. Stop making what YOU think what “everyone” thinks.

        And everyone who is honest knows that if there had been a vacancy in 2008, Democrats wouldn’t and shouldn’t have let Bush fill it.

        The two elections have different facts on the ground here so the comparison is a bit off especially as to what they “would” do. I have said this repeatedly and still “honestly” say it — all facts available, it was a risk for the Republicans. The Democrats very well in THEIR situation might have decided, simply as a matter of raw strategy alone, to act differently.

        And, for the nth time — the Republicans didn’t just ‘not fill’ the spot. They didn’t allow hearings at all. Or, an up and down vote. Why, if they didn’t matter? Because they do matter in some fashion. The Democrats could have let the process play out and voted, up and down, a Bush replacement of Stevens in 2008. See, Bork in 1987, followed by Kennedy confirmed in 1988. Something some say today simply would not happen (different parties controlling Senate and presidency resulting in a justice confirmed).

        And, then, yes, they might have run out the clock there (a nomination late in the year not the same as February). The Republicans didn’t do that.

  • asparagus22

    Serious Q: Will Democrats need to use Court-packing at some point to restore our democracy?

    Of course, it’s not likely they *would*, but here’s what’s keeping me up at night…

    Over the next 4 years: Gorsuch is seated, Trump appoints 1 or 2 more judges to replace Ginsburg/Kennedy, and we have all of the horrors of the Trump admin, including possibly blatantly un-Constitutional laws infringing on civil rights that don’t get struck down by Trump’s judges, overturning of Roe v Wade, etc etc.

    Let’s say, despite attempts to suppress the vote, Democrats manage to win the Presidency, the Senate and the House in 2020 (I know that’s rosy but bear with me). So Democrats try to undo the damage of the Trump admin, restoring civil rights, voting rights, reproductive rights, restoring environmental protection, protecting unions and workers’ rights, etc. etc.

    But then perfectly sensible legislation (like the ACA) and regulations are challenged in Court and get struck down by Trump’s SCOTUS and lower courts despite the ridiculousness of the challenge (like King v Burwell).

    So the government is pretty much incapable of doing things that majorities support, like fighting climate change, or preventing employers from committing wage theft, etc. At that point President Kirsten Gillibrand, if she’s lucky to have a Democratic Senate, pretty much *has* to pack the Courts, right?

    • liberal

      I think they’d have to. I also think there’s a good chance they wouldn’t, which I think is the wrong attitude in the face of so much Republican perfidy.

  • DrDick

    When conservatives use those terms, what they mean is “A strict construction of the meaning of the original text means whatever the fuck I want it to mean.”

    • efgoldman

      “A strict construction of the meaning of the original text means whatever the fuck I want it to mean.”

      Yeah, that’s pretty much what Denverite said up top, but he’s both a lawyer and a Broncos fan, so he had to explain and qualify nineteen way to Sunday.

      • mds

        Well, I think there was also something in there about how we have to respect Gorsuch for the especially intelligent sophistication of his casuistry.

        • Denverite

          Hmph. I didn’t mention Gorsuch in that comment. And I thought I was perfectly straightforward — of the four “doctrines” Scott mentions, two aren’t doctrines, one is but it’s a bad one, and one is legitimate if applied in good faith.

          • mds

            Wait, we aren’t talking about the “Broncos fan” part?

          • DrDick

            and one is legitimate if applied in good faith.

            And that has happened exactly how many times in the last millennium?

  • j_doc

    I would like there to be a strictly enforced rule for legal commentators that if they advocate “someone who will defer to the legislature and not re-write laws” they must immediately add “unless it’s a law we don’t like, such as the ACA or VRA, in which case we want someone who will literally re-write it.”

    Sheesh, if Michael Krasny’s gonna give reactionary ideologues a platform every morning, can he make at least the minimal effort to keep them grounded in reality?