Tuesday, January 31, 2017

It's Neil Gorsuch

Neil McGill Gorsuch (born August 29, 1967)[1] is a United States Supreme Court Judge .[2] On January 31, 2017, Gorsuch was nominated for a position as an associate justice on the Supreme Court of the United States.
Gorsuch is a proponent of originalism and of textualism in interpreting the constitution.
DJT delivers on nominating a legal fundamentalist to fill Scalia's SCOTUS seat.

Wikipedia
Neil Gorsuch

48 comments:

lastgreek said...

Joy Reid@JoyAnnReid

This is the moment Trump pays back the Christian right, which ignored every one of its own principles to support him in exchange for SCOTUS.

So Trump says he studied Gorsuch's legal writings. "Right," the guy who has never read a book in his life; the guy who during the campaign had no clue how many Articles the US Constitution has ... "right," he studied his legal writings.

Funny moment where Trump is standing next to Gorsuch's wife while her husband is at the podium and she's got her hands in front of her private parts ... you know, just in case ;)

Tom, you believe Trump knows what the phrase "legal fundamentalist" means, let alone ever using it in his life? Asking for a friend ;)

Malmo's Ghost said...

I've never heard the phrase "legal fundamentalist" regarding justices. I have heard and written on the judicial philosophy of original intent and strict constructionism, both of which correctly reject the philosophy of an organic and evolving constitution that gave us the nonsense of emanations and penumbras..

Appears to be a good pick.

lastgreek said...

I've never watched Celebrity Apprentice. How does it work -- does Judge Hardiman get a consolation prize or something? :)

Detroit Dan said...

Obama was president when Scalia died, and should have picked the replacement judge. Any originalist or textualist should realize this.

FILIBUSTER!

lastgreek said...

Appears to be a good pick.

Well, I think the NRA will be happy. Definitely the climate-change-is-a-Chinese-hoax crowd :)

Gorsuch, Gorsuch. The name rings a bell...

Richard Pelletier ‏@lucidcontent

Neil Gorsuch: his mother ran the EPA under Reagan for awhile and decimated it. She later resigned in disgrace. fyi

http://heavy.com/news/2017/01/anne-gorsuch-burford-epa-reagan-neil-mom-supreme-court-scandal-controversy-resign-who-is-die-death-net-worth-wife-family/

Tom Hickey said...

Legal fundamentalism by E. W. Thomas, University of Auckland

Penguin pop said...

"Obama was president when Scalia died, and should have picked the replacement judge. Any originalist or textualist should realize this.

FILIBUSTER!"

Wasn't he going to go with Merrick Garland and GOP kept wanting to block that? I can't recall.

lastgreek said...

If you ask me, E.W. Thomas accurately described the Republican Party :)

Malmo's Ghost said...

Tom,

Semantics aside, the nominee is an originalist, as am I. He believes that the intent of the law is what governs, not the spurious idea that the constitution is a living breathing document so that the judicial activist can circumvent the intent of the law to suit the justice's particular moral or philosophical agenda. Thus, contrary to activist jurists, Gorsuch would advocate what the Constitution itself stipulates when it runs up against ones personal agenda: amend it. Period.

Malmo's Ghost said...

If they filibuster McConnell will certainly invoke the nuclear option. That option would have been employed had Hillary won and the Repubs filibustered. Of course given 2018 and the Dems susceptibility, perhaps the 60 votes needed to prevent will avoid that scenario.

Tom Hickey said...

Fundamentalism is another type of activism.

We don't know what the founders "intended" because, first, we can't read their minds, and secondly, we cannot recreate the context in which they were living.

So originalism is based on contemporary imagination in a contemporary context.

Malmo's Ghost said...

Words have meaning historically and in the context of the contemporary circumstances that birthed the words (meaning) of the constitution. And case law over time elucidated that meaning. Saying it can't be understood is a cop out, and obliterates the concept of honest, objective judicial review. That's how you get the nonsense that enshrined abortion vis a vis Roe V Wade, with it's penumbras and emanations, as a "constitutional right".

Bob said...

Can you give an example of what this judge would do?

Malmo's Ghost said...

..and if "we" don't know what the founders intended then what's the point of the court? A second legislative body? No thanks.

Malmo's Ghost said...

I'm going to bed. I'll leave you with this. Using the due process clause of the 14th Amend to apply the Bill of Rights to the states was where con law left the rails. But, of course, given no one knows what the constitution really means it's understandable how such an unfortunate application could be pulled out of thin air.

Tom Hickey said...

I have linguistic analysis on my side. Meaning is embedded in context and context is dynamic historically. No linguists I know of take the idea of static meaning seriously.

This is a huge problem in historical analysis, not only with words but all sorts of data since data is meaningless without interpretation and interpretations are what is at issue, even given agreement about the data.

Moreover, there is absolutely no evidence, documentary or other wise, that the founders intended a static approach rather than a dynamic one.

Even if the founders did so intend, the question become whether that accords with contemporary knowledge. They may have been assuming erroneous grounds, such as the prevalent view at the time of meaning as essence, which has been discredited.

There is no way to resolve this argument based on evidence, so it boils down to justifying preferences that are fundamentally normative and prescriptive.

That's what politics is largely about.

The fundamentalists govern at this juncture, so all the opposition can do is obstruct, which they will do because if they don't they will pay a political price with the base.

All the argumentation/justification is just blather. Politics rules.

Tom Hickey said...

Can you give an example of what this judge would do?

He is a strong advocate of "religious liberty" in the sense of exempting religious people from law and regulation that runs counter to their religion.

I wonder what he thinks of this regarding sharia and how he would rule, e.g., about multiple wives and child marriage. For example, in some faiths, a girl must be married or betrothed before she menstruates of the parents are in violation of the law and liable to penalty.

Btw, this is real issue with Muslim immigrants that Europe is having to deal with now.

Tom Hickey said...

..and if "we" don't know what the founders intended then what's the point of the court? A second legislative body? No thanks.

Every judge interprets the law to fit the case. Lawyers attempt to influence that interpretation by citing precedent that they are argue is relevant because the facts of the cases are similar. Very few cases are stand on "all fours."

There is an appeals process to an appellate court, with SCOTUS the final court of appeal if the justices agree to hear the case.

Malmo's Ghost said...

Tom, I was being ironical. You're the one claiming we can't know what the founders intended, not I. Do we know that the authors of the 14th Amend wanted the BoR applied to acts of the individual states or was that from a penumbra?? Do we know what the 19th Amend really means?

Malmo's Ghost said...

....There is no way to resolve this argument based on evidence, so it boils down to justifying preferences that are fundamentally normative and prescriptive.


Was it normative and obstructionist to the will of the people, and did it accord with contemporary knowledge when Roe was decided in spite of overwhelming majorities against abortion?

Was it normative and obstructionist to the will of the people, and did it accord with contemporary knowledge when gay marriage was enshrined?

Calgacus said...

Malmo's Ghost: That's right about the due process clause, but that is an artifact of a tragic history - which ultimately got at the right result in a crazy way ("an unfortunate application"?). I have a great deal of respect for real judicial originalist / textualists like Hugo Black. Throughout the history of the US Supreme Court - & now - the biggest tendency & problem has been conservative judicial activism. Black, a or the leading intellectual light of the supposedly "activist", "liberal" Warren Court helped finally defeat a great deal of conservative activist word-games, finally yielding something like an honest interpretation of the 14th as intended & understood.

The authors & ratifiers of the 14th Amendment clearly meant it to apply the Bill of Rights to the States, but through the Privileges & Immunities clause. Grotesque decisions after the Civil War like the Slaughterhouse cases eviscerated the plain meaning and understanding of that clause, and it took another hundred years for the 14th to be interpreted as written, largely through a hypertrophied due process clause doing that (good) work, of course besides a lot of less good work.

Tom Hickey said...

Tom, I was being ironical. You're the one claiming we can't know what the founders intended, not I. Do we know that the authors of the 14th Amend wanted the BoR applied to acts of the individual states or was that from a penumbra?? Do we know what the 19th Amend really means?

These are speculative questions. Legal scholars and social/political philosophers write on them, arguing different points of view based on reasoning, evidence, and expert opinion. But the rubber hits the road in legal decisions make in courts.

Some judges think that judges should use precedent as settled law in making decisions, whereas other believe they should ask themselves what would the founders think.

Then there are the landmark cases that go against precedent and previous thinking, like Brown vs. Board of Education, that are based on equity in addition to law, in this case, that separate is not equal.

Tom Hickey said...

Was it normative and obstructionist to the will of the people, and did it accord with contemporary knowledge when Roe was decided in spite of overwhelming majorities against abortion?

Was it normative and obstructionist to the will of the people, and did it accord with contemporary knowledge when gay marriage was enshrined?


Of course, it was normative. That's why court appointments are political and based on ideological bias as shown by prior decision and statements.

It's also why judges that want to be promoted to higher courts generally haven't revealed their positions on sensitive matters unless called upon to do so in making a decision or writing an opinion.

John said...

Of the many choice quotes of allowing the dead to rule the living, the following by Thomas Jefferson are particularly apt:

"We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

"Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead."

Tom Hickey said...

Nice find, John.

In addition to being smart, that guy Jefferson has pretty good credentials as a founder.

Btw, the argument from authority is an informal fallacy in logic. Nothing is true just because a reputed authority said it. To think otherwise is dogmatism. It must be established independently of authority that the putative authority was in a position to know the item in question.

John said...

Tom, I agree, and I know you're not accusing me of it, but to those who automatically reply "that's the argument from authority fallacy", I always reply: "I'm not agreeing with X because they're X, I'm agreeing with the argument, and it was formulated in a much more accomplished and inventive fashion than I could have done. So what's wrong with the argument?" Then a deafening silence falls, because their usual knee-jerk complacent argument about "authority" is shown to be the shallow argument it is, a cop-out from engaging with the idea.

But all that's by the by. As to what's wrong with Thomas Jefferson's arguments, I couldn't even dream of possibly playing devil's advocate. It is, as he would say, a self-evident truth. I would, however, very much like to hear the arguments for the dead ruling over the living, if only to sharpen my skills as Advocatus Diaboli.

Matt Franko said...

Reading this comment thread is like listening to fingernails scraping a blackboard to me....

Noah Way said...

"to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best."

Reactionary conservative fundamentalist.

Slavery was legal when the constitution was written, look for it to return.

Matt Franko said...

They would have to repeal the anti slavery 13 amendment first....

lastgreek said...
This comment has been removed by the author.
lastgreek said...

Reading this comment thread is like listening to fingernails scraping a blackboard to me....

It could have been worse, Matt. Imagine if it were you instead of Gorsuch's wife standing next to Trump last night. Those tiny hands of his are capable of anything, you know ;)

They would have to repeal the anti slavery 13 amendment first....

OK, first Tom with the "legal fundamentalism" phrase and now Matt bringing up the 13 Amendment. Truly, truly, this thread is over Trump's puffy, orange head.

Trump defended articles of the Constitution that don't exist

http://www.cnn.com/2016/07/08/politics/sanford-questions-trump-constitution-gaffe/

No excuse for that, but then again...

Malmo's Ghost said...

CNN sourcing the disgraced Republican cuck, Mark Sanford for an anti Trump screed doesn't exactly transcend National Enquirer standards of journalism. Apparently CNN and Sanford are still trying to differentiate when someone is being figurative or literal. lol.

Malmo's Ghost said...

CNN and Sanford could go to Laurence Tribe instead of Trump and get a lesson in the Tribe school of con law on the non objective interpretation of black letter law.

Tom Hickey said...

The fallacy in appeal to authority is making an argument hang on authority rather than knowledge.

There presumes that someone speaking from authority is also speaking from knowledge of the issue in question but that doesn't necessarily follow. It may be the case, or it may not be. In other words, appeals to authority need to be justified further.

Authority merely lends plausibility and credence to a position.But it cannot guarantee truth.

This is a problem with fundamentalisms. They may be true or not true or only partially true, but truth is not dependent on authority alone.

"Prophet" means to speak for etymologically. The implication is that a prophet speaks for a deity. This is the highest level of authority, of course, since the source of the knowledge claim is unlimited. Simply accepting the authority on faith is dogmatism.

Even in religious fundamentalisms there are false prophets. What is the criterion for distinguishing the true prophet from the false prophet. This is a logical question about criteria.

Malmo's Ghost said...

John, Tom and Tom Jefferson,

Screw being ruled by some dated piece of paper. Let's just be done with what can't be known anyway, and let the majority sentiment and passion rule the day. Zeitgeist writ large no matter where it leads. I'll contradict Plato. The masses can never be asses.

Ignacio said...

I won't pretend wtf this is about (just tryignt o read the tea leaves on this conversation), but any application fo the law because hermeneutic inquiries of past historical figures written papers is absolutely dumb no matter what kind of "judicial" system you are running, and proportionally dumb to the time you go back. Law should always based on currency not on the past. This is like A.A. here in MNE advocating restitution of Old Testament laws or the way Islamism conducts itself: pure non-sense.

The fact that there is even a windows for "hermeneutics" in law is always a shortcoming of the system itself (not enough clarity) that should be fixed (if necesarily by totally overwriting or nullifying old papers), not building piles of bullshit around it (yeah yeah, I know, a lot of people income revolves around that shit, just almost up there of how over-bloated other industries are to the point they add negative value to society).

Tom Hickey said...

Screw being ruled by some dated piece of paper. Let's just be done with what can't be known anyway, and let the majority sentiment and passion rule the day. Zeitgeist writ large no matter where it leads. I'll contradict Plato. The masses can never be asses.

Law of karma. What you sow, so shall you reap. The sins of the fathers shall be visited on their children to the third and fourth generations.

What was done in the past affects the present and what is done in the present affects the future. Choice in the present is conditioned by history.

Text of the constitution is not as influential in the present as collective consciousness of the country as reflected in its cultures and institutions in the present.

A Zeitgeist arises out of the historical dialectic and shifts with the dialectic, based both on history and present choices made under conditioned freedom.

Bob said...

As far as I know, we don't have political litmus tests for appointments to the Supreme Court of Canada. It is based on merit.

John said...

The so-called originalists have such a weak case that the only reason it's taken seriously is that serves the right segments of society. First of all, amendments to the Constitution have been an on-going affair. So clearly that's a serious blow to their case, unless the originalists want to repeal all these amendments and go back to the original pro-slavery, anti-suffrage Constitution, which Matt alluded to. Second, although one might be able to discern in some extremely limited fashion what the Founders intended on some very limited issues, because they never made clear what their intentions were on many issues of their own time let alone had the power of clairvoyance to also codify a Constitution for all time, another obvious point arises: is it not reasonable to conclude that the Founders did not expect that a vastly different country nearly a quarter of a millennium later would still be bound by the values of men of another era, and that they would have agreed with Jefferson on this? And if the Founders demanded adherence to those of another age, why did they themselves break with tradition and institute radically new ideals of government?

In any case, it seems that the Constitution should in fact be considered a living and breathing document. The next step is to make the case for changing and adding to it.

Tom: "Text of the constitution is not as influential in the present as collective consciousness of the country as reflected in its cultures and institutions in the present."

Right. One of the Founders somewhere made the obvious point that if the Constitution is not vigorously defended and has not become an intrinsic part of the consciousness of the people second of the day, it will just become nothing more than any other old piece of paper. Because rights are defended in living time, not because a piece of paper says so. And that's what's been seen under Dubya and Obummer. While pledging to preserve, protect and defend the Constitution, Dubya shredded it, and then Obummer wiped his ass with the remnants. True to his maverick style, Trump may perhaps take the tattered document to a curator who'll clean and piece it back together, and Trump, as a man of his word, will then live up to the oath of office he made. Or perhaps he'll just say it's "stupid" and a "loser".

Malmo's Ghost said...

You guys are a piece of work. If there's no discernible constitution then lets be done with con law altogether, nine justices included. There is absolutely no integrity in claiming it's a dead letter yet at the same time employing said dead letter in rulings that appeal to it. That's illogical and moreover simply dishonest.

Bob said...

Revised Constitution of the United States: We are the police. We make the rules.

John said...

Malmo, you're the one who said you were an "originalist" like Trump's nominee to the Supreme Court. The Supreme Court is meant to adjudicate on cases by being the final decision maker on constitution law, which is what Trump's nominee and you as "originalists" wish to defend! Now you're saying that even though you're an "originalist" the Constitution is an irrelevance. You can be one or the other, not both. An "originalist" accepts the primacy of the Constitution, and does not argue that it is a dead letter. And why just accept the current predicament of a government that ignores the law? That is what is being argued.

Malmo's Ghost said...

John, I am mocking those who claim the plain wording of the Constitution can't be objectively gleaned.

I am mocking those who then proceed to appeal to a document they claim is unknowable, obsolete and out of touch with modern convention, yet still cite it authoritatively in their judicial decisions--and then are applauded rapturously by those very people who stridently deny the objective wording and hence meaning in said document.

I am mocking the duplicity of those who see the Constitution as a dead letter yet fall prostrate when the SCOTUS overturns laws passed and favored by overwhelming majorities with little if any textual support from the Constitution, while mindlessly arguing that the decision was sound because some new found societal knowledge overrules the will of the majority rather than the Constitution itself..

Neil Wilson said...

Not sure what the guy stands for, but he has a great name.

John said...

Malmo, ah, got you. Apologies.

Neil, what's that Private Eye line: "Crazy name, crazy guy?!" Apparently it's an old Lancashire name. Never trusted those Lancashire folk...

Tom Hickey said...

You guys are a piece of work. If there's no discernible constitution then lets be done with con law altogether, nine justices included. There is absolutely no integrity in claiming it's a dead letter yet at the same time employing said dead letter in rulings that appeal to it. That's illogical and moreover simply dishonest.

Apparently you don't understand the role of precedent, on one hand, and interpretation on the other.

Fourth Chief Justice of SCOTUS John MarshalJohn Marshall was an activist and his court an activist court that shaped the US legal system on top of the Constitution by establishing precedent that became settled law.

Soon after becoming Chief Justice, Marshall changed the manner in which the Supreme Court announced its decisions. Previously, each Justice would author a separate opinion (known as a seriatim opinion) as was done in the Virginia Supreme Court of his day and is still done today in the United Kingdom and Australia. Under Marshall, however, the Supreme Court adopted the practice of handing down a single opinion of the Court, allowing it to present a clear rule.[44] As Marshall was almost always the author of this opinion, he essentially became the Court's sole spokesman in important cases.

See Marbury v. Madison and Fletcher v. Peck. which established the principle of judicial review.

McCulloch v. Maryland

Discovery doctrine

These decisions/opinions were innovative at the time and they established precedent that became settled law.

To what exactly do originalists and textualists with to return?

Calgacus said...

MG: Do we know that the authors of the 14th Amend wanted the BoR applied to acts of the individual states?

Yes, we do. As I noted above, after that little dust-up called the US Civil War, they did want it so applied & said so. Curious as to your thoughts on this and on the lengthy history of "conservative" judicial activism of the US Supreme Court - which for instance famously helped spark that Civil War.

Textualism / originalism is a serious point of view, and should always be seriously weighed. But it is not the only point of view, the only way of thinking about interpretation. Sometimes it doesn't make much sense, and even admirable and rigorous exponents of that philosophy can fairly clearly err. Old laws should be respected - but if they were drafted in the light of old "geocentric" ideas that nobody holds or even really understands any more, that people are ashamed of and feel ridiculous airing after some Copernican revolution in thought - which doesn't happen every day, or even every century, new "Constitutional" work can be needed.

John said...

Calgacus, I once heard a very good explanation by, ahem, Judge Andrew Napolitano that not only does the Constitution and all its Amendments apply to the United States and the individual states, but it also applies whenever and wherever the United States "goes" and resides. So in ALL government affairs, including foreign and military, the Constitution is applicable. Napolitano therefore concluded that everything within the Patriot Act was unconstitutional, so was Guantanamo or any other form of incarceration without the due process of law, drone attacks and one hundred and one other things. It was a tour de force argument. Whatever else we may think of Napolitano, it was an unusual argument to make in front of braying rightwing authoritarian maniacs who worship the state.