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Law is politics, part infinity


I just about tossed my Peruvian beaver milk latte this morning when reading Neal Katyal’s plea to Senate Democrats to unanimously confirm Neal Gorsuch.

Katyal’s argument is that Gorsuch is a real smart guy who went to all the best schools (like Neal Katyal), and that he’s not a hack, but rather a principled jurist:

Last week, The Denver Post encouraged the president to nominate Judge Gorsuch in part because “a justice who does his best to interpret the Constitution or statute and apply the law of the land without prejudice could go far to restore faith in the highest court of the land.”

I couldn’t agree more. Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to “administer justice without respect to persons, and do equal right to the poor and to the rich.” I am confident Neil Gorsuch will live up to that promise.

Gorsuch may well be a principled jurist (given that he teaches regularly here at the CU law school I should make clear that I don’t know him either personally or professionally).  But his avowed principles are bad ones.

Gorsuch is a passionate acolyte of Antonin Scalia’s reactionary view of the role of the federal courts in American politics.  Now as Scott points out, Scalia was not merely reactionary: he was also a hypocrite, as he was quite willing to drop any pretense to maintaining his theoretical commitments if, despite the considerable interpretive flexibility they normally afforded, they on occasion still produced a result he found politically uncongenial.

As Scott has also noted on several occasions, Clarence Thomas was and remains less hackish than Scalia: Thomas actually sticks to his avowed jurisprudential principles with far more consistency than Scalia ever did.  Though he doesn’t come right out and say it,  Katyal’s argument adds up to the claim that progressives should confirm Gorsuch because he’s like Thomas: a reactionary jurist who usually doesn’t jettison his reactionary interpretive methods on those occasions when those methods happen to fail to produce reactionary results.

This is, especially under the circumstances (Merrick Garland, Donald Trump, fascism a go-go etc.), a horrible argument.  Voting for Gorsuch because because he’s, ex hypothesi, principled, without regard to what those principles actually are, is nonsensical. It’s no different than arguing that liberals ought to support Paul Ryan’s crusade to destroy what remains of the welfare state, because that crusade is based on a principled belief in the philosophy of Ayn Rand, as opposed to a hackish desire to advance his own political fortunes.

There was a time in American politics when a vague cross-institutional consensus held that presidents should get to pick Supreme Court justices whose legal-political views reflected the president’s own, subject to fairly loose constraints in regard to technical competence, personal corruption, and ideological extremism.  Those days are long gone.

Katyal is perfectly well aware of that of course, and his op-ed is a transparent attempt to curry favor with hypothetical marginal senatorial votes, should his own SCOTUS ship come in a few years from now.  (This is not a fantastical calculation on his part.  The qualifications for getting nominated have become so absurdly narrow that there literally only a few dozen people at any one time who are as a practical matter eligible, and he’s one of them).

Gorsuch’s nomination is a political act, which should be opposed for political reasons.  Blather about “principles” and “brilliance” and “temperament” just obscures the actual situation we are now in.


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