“I won’t ever forget that the seat I inherit is that of a very, very great man, Antonin Scalia.” — Justice Neil Gorsuch
Perhaps that epigraph says all you need to know about Justice Gorsuch.
His confirmation by the Senate metaphorically returned Scalia to the Supreme Court.
President Trump’s appointment of Gorsuch hurts most Americans, bringing back the reactionary 5 to 4 majority—the “Corporate Court” that gave the nation the Hobby Lobby decision {money rules politics) and other backward-looking decisions like invalidating parts of the Voting Rights Act.
Nevertheless, the court has issued some surprisingly liberal decisions such as sanctioning same-sex marriage.
Justice Antonin Scalia, who died last year, had a brilliant mind but one that thought two centuries behind the times. He wanted to take the court back to “original intent,” unmindful that the peak of his career occurred in the constantly changing views of the 21st century.
Gorsuch portends pushing the glorious years of Chief Justice Earl Warren farther back into history. However, you never know how a justice will turn out. Warren was a conservative politician in California who became a liberal chief justice.
Still, it looks as if Trump can shape conservative opinions of the Supreme Court for decades. He may have as many as three appointments before he leaves the White House.
The Republicans were even wiser then they realized by refusing to consider the appointment of Judge Merrick Garland to succeed Scalia. Garland, a liberal, was appointed by President Obama last year. The GOP didn’t believe Trump could win and was surprised by the “gift” of Gorsuch.
An editorial in the San Francisco Chronicle called Garland “eminently qualified.”
Adam Liptak, New York Times Supreme Court reporter, offered this astute analysis:
“If Garland had replaced Scalia the court would have shifted to the Left. A majority of its members would have been Democratic appointees for the first time in almost 50 years.
“Garland has a record of deferring to the government on pretty much everything, be it labor negotiations or law enforcement.
“Gorsuch, on the other hand, is more skeptical of government action and prone to deference to executive agencies.”
Democrats filibustered the Gorsuch nomination until the GOP majority changed the rules, declaring that a majority, 51 votes, could confirm Gorsuch, not 60 votes needed to overcome a filibuster.
So, the Senate voted for confirmation, 54-45.
This columnist has long argued that the filibuster should be ended for all Senate votes. An up-or-down vote is sufficient. The filibuster is unconstitutional and undemocratic.
During the 20 hours of questioning by senators, Gorsuch said nothing of substance, the normal—and smart–course for nominees seeking confirmation.
The New York Times reported: “He presented himself as a folksy servant of legal principles. But based on the judge’s rulings on the appeals court and his legal writings, Gorsuch would be a reliable conservative committed to follow the original understanding of those who drafted and ratified the Constitution.” (Original intent was Scalia’s frequent argument in dissent or in the majority.)
“Divided 4-4, the court has deadlocked, ducked cases, issued narrow decisions and slow-walked (delayed) still other cases while awaiting a ninth justice.”
Joan Bohmann of Sparks, in a letter to the Reno News & Review, rightly pointed out:
“Gorsuch ruled against a trucker who was fired when he temporarily left his truck after repeatedly calling for help because of hypothermia and possible death. He ruled against a special needs student seeking fair treatment by her employer. And, he sides with business when there are pension disputes.”
Whatever individual feelings are about the supposed non-partisan nature and “sanctity” of the Supreme Court, it is a political body divided between liberal and conservative justices. They are Democrats versus Republicans, fighting furiously, political to the core.
Absolute proof is the court handing the presidency to G.W. Bush, 5-4, in the disputed 2000 election. Bush’s opponent, Al Gore, won four million more popular votes. It was the greatest crime by a Supreme Court in history.
Chief Justice John Roberts has insisted that he is a just an umpire calling balls and strikes. He has instated he will keep partisanship out of the judiciary. He may think so but it is not true.
Roberts has praised the justices for willingness “to put the good of the court above their own ideological agendas.” That too is untrue.
The Supreme Court is as political as the president and the Congress.
Vital statistics:
• Gorsuch is 49.
• Served as clerk for Justice Anthony Kennedy. Before that he clerked for Justice Byron White.
• Graduated from Columbia, Harvard and Oxford.
• Lawyered for a prestigious Washington firm and for the Justice Department.
• Was judge on the U.S. Court of Appeals for the 10th Circuit (Denver).
Jake Highton is an emeritus journalism professor from the University of Nevada, Reno. (Jake.Highton.1496@gmail.com)
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