I enjoy Ms. greenhouse's columns immensely and almost always agree with her. Here, however, I cannot agree that the Democrats should "play nice,"which unfortunately the Republicans have shown to be a losing political position. As she acknowledges that the seat was stolen from Obama and the Democrats (and the American public writ large), the Democrats should return the favor. Mitch McConnell and his colleagues said the Senate should wait until the people have voted (again). The people voted and Hillary Clinton received more votes. Thus, "No vote until the American people have spoken by electing a President who gets the most votes." Simple arithmetic!
16
Gorsuch will be the next Justice, the only question is will he be appointed via the 'nuclear option'. Thanks to Harry Reid the Republicans now have that in their arsenal, thanks Harry! If the 'nuclear option' is used for Gorsuch it will certainly be used to replace Kennedy when he retires and RBG (84 this year) when she leaves.
Go ahead Dems, force the issue with this guy and prepare yourselves for two more 50 year olds who will dominate the Court for the next 25 years. I dare you.
Go ahead Dems, force the issue with this guy and prepare yourselves for two more 50 year olds who will dominate the Court for the next 25 years. I dare you.
8
It's rather mind-numbing to contemplate, but this is the common cast of the conservative weltanschauung (world view).
Zero-sum rights, zero-sum justice is a bizarre concept to most liberals. I would be curious to learn how this translates into love for one's spouse, or children. Do those embracing this mindset hold that all positive qualities or expressions are finite? That expressions of love can be too generous precisely because they would limit such expressions to others?
Philosophically, this is dualism run amok, i.e, counter to common sense.
To me, the only plausible explanation of this mind-set, is a conservative Catholic upbringing. For a hint of that dynamic, just watch HBO's The Young Pope where there are numerous examples of 'Lennie' (the young pope) decreeing policy which is exceedingly immoderate and reckless. But hey, principle comes first.
Zero-sum rights, zero-sum justice is a bizarre concept to most liberals. I would be curious to learn how this translates into love for one's spouse, or children. Do those embracing this mindset hold that all positive qualities or expressions are finite? That expressions of love can be too generous precisely because they would limit such expressions to others?
Philosophically, this is dualism run amok, i.e, counter to common sense.
To me, the only plausible explanation of this mind-set, is a conservative Catholic upbringing. For a hint of that dynamic, just watch HBO's The Young Pope where there are numerous examples of 'Lennie' (the young pope) decreeing policy which is exceedingly immoderate and reckless. But hey, principle comes first.
6
Obama had his first two nominees rubber stamped, before he was stonewalled. Trump should also get his first two approved, then you can obstruct.
But, when have democrats ever acted honorably?
But, when have democrats ever acted honorably?
9
Thanks to Reid's lack of understanding in Math, it only takes 51 votes to end the debate on Federal Judges. Should the Democrats decide not allow a vote of Gorsuch, as nominations for the Supreme Court Justice currently need 60 votes to end debate,the Republicans can simply change the rule so that all nominations only require 51 votes.
So for all of those that posted about "No Garland, No Gorsuch," watch what you wish for because you might just get it.
So for all of those that posted about "No Garland, No Gorsuch," watch what you wish for because you might just get it.
8
The "strict constructionist" Judge observes the letter of the law over the intent of the law. If this is the majority on the court that decides which laws, procedures, customs, and lifestyles are permitted under the Constitution, we are doomed to live in an Orthodox system of jurisprudence. Such orthodoxy treats the intent of laws as deviations from the text written to create these laws. This is the precise difference between the Republican and Democrat views of democracy. The orthodox approach is beneficial to the wordsmiths (This includes the Constitution's 3/5s of a slave rule) seeking agreement with powerful interests holding egregious views. The duty of the court is to look to the principles of the constitution not the wordsmithed text. If the nominee for a position on the court cannot see past the trees to envision the forest, we will lose democracy, case by case, until our nation becomes a constitutional theocracy. Liberal or conservative does not apply here. Rigid/mindless vs. principled/humanist is the real choice.
10
I guess the question I have is, would Ms. Greenhouse have thought similar questions proper for then-Judge Sotomayor?
6
"The McConnell Rule" permits the Senate to delay nominations made during the campaign until after the voters have their say.
Donald is already campaigning for 2020. I think Neil can wait until then.
Donald is already campaigning for 2020. I think Neil can wait until then.
14
I highly doubt you will find a better-qualified candidate then Judge Neal Gorsuch. He is a brilliant man with excellent credentials. He will judge cases according to the constitution as they were intended. He will be a much needed Supreme Court justice who will serve our country well. This is a wonderful choice.
8
"some toxins can be deadly in small doses" - words to remember!
In this time of overwhelming blame-seeking, racism has come back to the fore, and people are being prejudged by category.
People seem absorbed in groups that isolate them from the variety of knowledge. Nobody can excuse the defendant's crimes, but to add in his race as a likely predictor of bad behavior is also inexcusable.
Unfortunately, it appears that a large part of our population is willing to ignore Trump's blind selfishness and vengefulness and many of his fellow Republicans' enabling, victim-blaming and me-firstism for their particular brand of racial immigrant history. They are in favor of doing everything in their power to take and keep power and hurt those who are "other".
We are in a dangerous time, where violence and hatred and exclusion are branded "Christian" and the understanding of humanity as a community that needs to work together is regarded as nasty. The reality is the reverse.
Judge Gorsuch has a history of voter suppression, and of all the crimes against humanity that have come to the fore in recent events, this is one of the most dangerous.
Empowering the powerful, enabling the kleptocrats, we forget:
Power corrupts and absolute power corrupts absolutely.
In this time of overwhelming blame-seeking, racism has come back to the fore, and people are being prejudged by category.
People seem absorbed in groups that isolate them from the variety of knowledge. Nobody can excuse the defendant's crimes, but to add in his race as a likely predictor of bad behavior is also inexcusable.
Unfortunately, it appears that a large part of our population is willing to ignore Trump's blind selfishness and vengefulness and many of his fellow Republicans' enabling, victim-blaming and me-firstism for their particular brand of racial immigrant history. They are in favor of doing everything in their power to take and keep power and hurt those who are "other".
We are in a dangerous time, where violence and hatred and exclusion are branded "Christian" and the understanding of humanity as a community that needs to work together is regarded as nasty. The reality is the reverse.
Judge Gorsuch has a history of voter suppression, and of all the crimes against humanity that have come to the fore in recent events, this is one of the most dangerous.
Empowering the powerful, enabling the kleptocrats, we forget:
Power corrupts and absolute power corrupts absolutely.
14
I differ from the author on Judge Gorsuch and acknowledge that he appears to be civil and intelligent. Perhaps I am prejudiced because at a time of extreme danger for all of humanity from climate change, toxic waste, and profiteering via deregulation, his mother's record is shameful. That must be set aside; we are not to blame for our parents. Interestingly, this should remind people that other kinds of children are being punished for the efforts of their parents to make a better life for them.
I don't know if this link will work, but on Gorsuch's problems with voter rights, here:
https://www.bostonglobe.com/opinion/2017/02/01/supreme-court-nominee-thr...
The article is entited: "Supreme Court nominee threatens voter rights"
"Trump’s lies about massive voter fraud on Election Day have fueled the GOP’s efforts to pass state voter ID laws, which suppress voting by minorities and the poor. Critical to these efforts is Roberts — even as a Justice Department lawyer in the ’80s, he was sharply critical of the manner in which the Voting Rights Act of 1965 protects victims of voter discrimination."
"he was carefully vetted by the Federalist Society, founded in the 1980s to ensure that Republican judicial appointees hew to a stringent legal and political philosophy."
He also has a troubling history on contraception, siding with those who would deny funding on "religious" grounds (what about viagra, you hypocritical men?).
I don't know if this link will work, but on Gorsuch's problems with voter rights, here:
https://www.bostonglobe.com/opinion/2017/02/01/supreme-court-nominee-thr...
The article is entited: "Supreme Court nominee threatens voter rights"
"Trump’s lies about massive voter fraud on Election Day have fueled the GOP’s efforts to pass state voter ID laws, which suppress voting by minorities and the poor. Critical to these efforts is Roberts — even as a Justice Department lawyer in the ’80s, he was sharply critical of the manner in which the Voting Rights Act of 1965 protects victims of voter discrimination."
"he was carefully vetted by the Federalist Society, founded in the 1980s to ensure that Republican judicial appointees hew to a stringent legal and political philosophy."
He also has a troubling history on contraception, siding with those who would deny funding on "religious" grounds (what about viagra, you hypocritical men?).
7
Neither the authors of the Constitution nor the delegates who signed it expected the conservatism or liberalism of Supreme Court justices to be of any great consequence. The founders expected constitutional issues to be settled not by the Supreme Court but by the amendment process or by constitutional conventions. The founders expected the justices would spend their time setting boundary disputes and settling intrastate commerce issues. They would be shocked to learn that we now permit a small group of black-robed partisan to settle constitutional issues involving American rights and liberties. Today, the rights of Americans depended on Supreme Court mortality rates—who will die soonest, a liberal or conservative justice. We need periodically scheduled constitutional conventions—perhaps one a generation—to amend or clarify the constitution.
4
"The founders expected the justices would spend their time setting boundary disputes and settling intrastate commerce issues. "
Actually, they expected each justice to spend most of his time riding circuit within the area he was responsible for, hearing federal cases individually. That is what the Judiciary Act of 1789 had them do, and this persisted into the early 20th century. The Supreme Court met only for short terms, and not in every year.
Actually, they expected each justice to spend most of his time riding circuit within the area he was responsible for, hearing federal cases individually. That is what the Judiciary Act of 1789 had them do, and this persisted into the early 20th century. The Supreme Court met only for short terms, and not in every year.
4
I'm sure the founders would be shocked by a great many things. Jefferson expected that the Constitution would be re-visited every 20 years or so. We didn't do that. Ever since Marbury v Madison, the Supreme Court has been deciding constitutional questions. The founders lived in a very different time. Divining their every intent is an exercise in futility because even at the time, when the country was much smaller, all of them had different intentions and ideas about the Bill of Rights and interpreting the Constitution.
4
The GOP blockrd Obama's nominee got the Court. Let the people dedide they say and by 8 million votes rejected a GOP pick for the Court. The People spoke although the electoral college obsolete since the Civil War out Trump in office but that electoral college does not equal a popular vote. So the People have decided no Supreme Court seat for Trump. Of course what the GOP did was an unconstitutional power grab. The question is whether the Democrats and other anti fascists should let the GOP get away with thumbing their noses at the rule of law and expect the Democrats should play by the rules the GOP have and will continue to reject.
7
In his column last week, Charles Blow made an excellent argument that Congress shouldn't be giving Gorsuch or any other candidate a hearing, since no one knows whether Trump will even last one year in office,given the potential Russian connections etc. This might very well be Trump's last year in office. The Republicans adamantly refused to even meet with Merritt Gardner, because they claimed Obama had no right to nominate someone in his lat year in office, so Trump should be held the same standard. If he does get impeached or resigns, why should he still be able to influence what happens in our country for decades
17
The more I read about our Justice System,
the more I am convinced it is anything but Just.
What was the Public Defender thinking and what were the Appeals Judges thinking about a Defense Witness who strongly implies the defendant is
to be put to death ?
However, I think the testimony had far, far less to do with the Death Sentence than that Mr. Buck killed his ex-girlfriend, her male friend and shot her Step-Sister...what more do you have to do to get the Death Penalty if anyone is to
get the Death Penalty ?
As for some of us being "Lucky enough to have ancestors who immigrated..."
Those of us born here are not immigrants, there is an important distinction to be made.
Perhaps if more Elites lost their jobs to Un-Documented Immigrants they would
have more sympathy for those who oppose un-fettered Immigration.
As for the exchange between Senator Simon and Judge Bork...
I think you take the remarks out of context and you know that your are taking
them out of context.
As for Same Gender Marriages.
Something was loss when Divorce became too easy to declare and have.
The State has a deep interest in seeing that the Parents of Children raise
their children when they are not harmful to the child.
That is why Marriage was seen as sacrosanct
Once the court allowed Same Gender Couples to adopt, the door to
Same Gender Marriages was open - it was only a matter of time
until some Court approved them - yet such rulings are not Constitutional,
but read into the Constitution.
the more I am convinced it is anything but Just.
What was the Public Defender thinking and what were the Appeals Judges thinking about a Defense Witness who strongly implies the defendant is
to be put to death ?
However, I think the testimony had far, far less to do with the Death Sentence than that Mr. Buck killed his ex-girlfriend, her male friend and shot her Step-Sister...what more do you have to do to get the Death Penalty if anyone is to
get the Death Penalty ?
As for some of us being "Lucky enough to have ancestors who immigrated..."
Those of us born here are not immigrants, there is an important distinction to be made.
Perhaps if more Elites lost their jobs to Un-Documented Immigrants they would
have more sympathy for those who oppose un-fettered Immigration.
As for the exchange between Senator Simon and Judge Bork...
I think you take the remarks out of context and you know that your are taking
them out of context.
As for Same Gender Marriages.
Something was loss when Divorce became too easy to declare and have.
The State has a deep interest in seeing that the Parents of Children raise
their children when they are not harmful to the child.
That is why Marriage was seen as sacrosanct
Once the court allowed Same Gender Couples to adopt, the door to
Same Gender Marriages was open - it was only a matter of time
until some Court approved them - yet such rulings are not Constitutional,
but read into the Constitution.
2
Wait! Wait! The President will soon run out of courts to blame for his troubles. Next up? The Constitution.
"What a terrible document! It says that there shall be a Supreme Court. O.K. The justices will circuit ride, on horseback, to hear cases all over the country. It says nothing about giving the president back sass. Why are they doing it? Constitution…. badddd. Get rid of it!"
"What a terrible document! It says that there shall be a Supreme Court. O.K. The justices will circuit ride, on horseback, to hear cases all over the country. It says nothing about giving the president back sass. Why are they doing it? Constitution…. badddd. Get rid of it!"
5
This is it. The Supreme Court is the big battle. Yes, the BIG BATTLE. So your urging the Dems to "save it for the big battle ahead" shows you don't get it.
3
The zero-sum assumption, for which there is no evidence whatsoever, may be the closest single concept there is for defining the difference between the conservative and liberal outlooks. Thanks for pointing this out.
7
I believe that the other simple defining difference is optimistic and pessimistic.
I've never met an optimistic conservative, except in that he is hopeful that a liberal somewhere will suffer.
I've never met an optimistic conservative, except in that he is hopeful that a liberal somewhere will suffer.
6
Why now.. we are fine with 8 Justices!
We should have less if possible!
I totally agree with the GOP senate in 2016 and now that we have enough justices already! :)
We should have less if possible!
I totally agree with the GOP senate in 2016 and now that we have enough justices already! :)
2
Thank Heaven for Professor Greenhouse, and her continued contributions to us all via the New York Times. She makes the murky clear and the labyrinthine relatively straightforward. "Lucidity" could easily be her middle name.
6
The Supreme Court nomination and confirmation process have become hyper-partisan battles for territorial occupation.
For example, only 5% of American lawyers belong to the conservative Federalist Society. So why do we need four members of that clique on the Supreme Court?
I'm sure Judge Gorsuch will be confirmed, so there is no reason for him to pretend the job is just calling "balls and strikes." That tripped up the Chief and he's still trying to recover.
For example, only 5% of American lawyers belong to the conservative Federalist Society. So why do we need four members of that clique on the Supreme Court?
I'm sure Judge Gorsuch will be confirmed, so there is no reason for him to pretend the job is just calling "balls and strikes." That tripped up the Chief and he's still trying to recover.
1
I expect Mr. Gorsuch will be a great Supreme Court Justice for many, many, many years.
5
On Thomas' decision in this case, the "society at large" has an interest first and foremost in getting the verdict right. Finality comes "after" that. This is such a fundamental concept of Justice, especially in a death sentence case, I would question whether he should be on the Supreme Court. Why did Alito concur in this? Was he humoring Thomas to get his consent on a future opinion?
Past Supreme Court decisions should be fair game in questioning during confirmation. Also types of cases the nominee has worked on in private practice. For example Roberts and Alito had been corporate lawyers, and showed a clear bias in helping corporations over people in lawsuits. Also, as she has pointed out, cases before the Supreme court show a clear bias as being from just a handful of law firms.
I would bring to Ms Greenhouse's attention an article in the current issue of Science on "Translational Democracy, and ask what she thinks about this. There was a lot of it in Lasswell's day, but hardly any today, and perhaps this is why voters are now so easily fooled in elections. My own take, ballot initiatives and walking high school students through the voting process can't help but help. On protests, OWS and the 99% seem to have fizzled; maybe the current protests, especially everyone losing their health benefits, will have more staying power.
Past Supreme Court decisions should be fair game in questioning during confirmation. Also types of cases the nominee has worked on in private practice. For example Roberts and Alito had been corporate lawyers, and showed a clear bias in helping corporations over people in lawsuits. Also, as she has pointed out, cases before the Supreme court show a clear bias as being from just a handful of law firms.
I would bring to Ms Greenhouse's attention an article in the current issue of Science on "Translational Democracy, and ask what she thinks about this. There was a lot of it in Lasswell's day, but hardly any today, and perhaps this is why voters are now so easily fooled in elections. My own take, ballot initiatives and walking high school students through the voting process can't help but help. On protests, OWS and the 99% seem to have fizzled; maybe the current protests, especially everyone losing their health benefits, will have more staying power.
3
Regardless of Gorsuch's merit's to hold that 9th seat, his tenure will forever be tainted by the fact that the seat he will be taking should have been occupied by Merrick Garland. I feel bad for each of them.
5
I think that Judge Gorsuch was sucker punched by Trump. Essentially by accepting the Trump nomination he endorsed the Obama denial of his constitutionally rightful pick. So, his primafacy understanding of the US Constitution is nill and wanting. Frankly, the Trump Whitehouse is so completely fouled up that the confirmation process for the Supreme Court will not be settled in his term. The court is forever ruined because the Obama voters will never view the court as legitimate every again.
3
To Nzierler and Terry: Wasn't it Joe Biden who said that "...the best thing for the country, the Constitution, The Supreme Court, Congress, and the Presidency is for the current President to wait and allow the next Pres to fill any Supreme Court vacancy." The Republicans should follow the "Biden" rule, and if the ugly, hateful and destructive democrats oppose Gorsuch, then Trump and republicans should just go ahead with Reid's nuclear option and confirm him with 50 votes. And that goes for the next Supreme, also, when Ginsburg is either forced to retire because of her blatant and biased opinions in various media interviews on Trump and the Republicans, or because of her age and mental capacity.
5
"Undocumented immigrants have to be carted away while dropping their children off at school because their very presence among us, tolerated (and exploited) for decades, is deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut."
Please..."undocumented" immigrants are here illegally. An no gates were slammed shut. Indeed, for most Americans the gates were a lot more closed prior to the 1960s then than they are today.
Please..."undocumented" immigrants are here illegally. An no gates were slammed shut. Indeed, for most Americans the gates were a lot more closed prior to the 1960s then than they are today.
6
Was not the rejection of Bork that gave us Thomas? Bork would have been a better choice. The SC could use another William O Douglas
1
Val S: No, it gave us Kennedy, and thus the liberals were rewarded. Reagan would have been better off nominating Bork in 1986 (Scalia's seat) as the Democrats would have had trouble beating Scalia in 1987 (the seat Bork was nominated for), who was confirmed 99-0. It would have been politically infeasible to defeat the first Italian-American to serve on the court.
1
Do you really think the GOP hijack of the nomination process is a trivial matter, Ms. Greenhouse? I would rather see the Court below strength for another four years than reward McConnell for his brinksmanship. If you think violating the constitution is a minor matter, why even bother having a Supreme Court at all? Just think of the money we could save!
7
The Constitution was not violated. The Constitution REQUIRES Senatorial consent of a President's nomination to the Supreme Court. Did doesn't require them to vote on a nomination. The Senate gave the President their advise; Do not nominate anyone, as we are invoking the Biden Rule.
7
Ms. Greenhouse's article seems a little silly.
Mr. Gorsuch has been a judge for many years. His legal thinking is documented in his many written opinions.
Liberal Americans may want to rile themselves up in righteous fury about his nomination or about the treatment Judge Garland was given by the Senate, but given Gorsuch's resume, it is hard to argue that he is not as qualified as Justice Roberts, Justice Kagan, Justice Alito, Justice Ginsburg, or any of the other sitting justices.
If more Americans had come to vote for Hillary, then Judge Garland or some other liberal judge would be up for confirmation hearings.
Since that did not happen, Judge Gorsuch is going to get onto the Supreme Court.
It's time for liberals to stop bellyaching and get on with life.
Mr. Gorsuch has been a judge for many years. His legal thinking is documented in his many written opinions.
Liberal Americans may want to rile themselves up in righteous fury about his nomination or about the treatment Judge Garland was given by the Senate, but given Gorsuch's resume, it is hard to argue that he is not as qualified as Justice Roberts, Justice Kagan, Justice Alito, Justice Ginsburg, or any of the other sitting justices.
If more Americans had come to vote for Hillary, then Judge Garland or some other liberal judge would be up for confirmation hearings.
Since that did not happen, Judge Gorsuch is going to get onto the Supreme Court.
It's time for liberals to stop bellyaching and get on with life.
20
Judge Garland isn't a liberal--he's a centrist.
6
Get on with life.
Right. If the conservative rulings allow for that. For some getting on with life will mean allowing their lives to be controlled by corporations. Or that they have to live a life in the shadows since simply being won't be acceptable.
Right. If the conservative rulings allow for that. For some getting on with life will mean allowing their lives to be controlled by corporations. Or that they have to live a life in the shadows since simply being won't be acceptable.
4
Too bad Justice Kagan blew it during her nomination. After saying that the Kabuki Thearre style of the confirmation process was “a vapid and hollow charade,” she failed to answer the questions she was asked, giving the all too familiar answer of “I can’t answer because that question might come before the court.” The ability to change the Kabuki Theatre ended with her appointment.
6
From the first paragraph of the article: "Senators should ask how he (Gorsuch) would have decided Supreme Court cases from the past. Don’t accept the standard nominee response that “I can’t answer because that question might come before the court.” It has already come before the court. (This suggestion is based on a 2006 article by two Yale law professors, Robert Post and Reva Siegel).
2
Thank you, Ms. Greenhouse, for a very thoughtful column. It was particularly interesting to read that interchange between Robert Bork and Paul Simon thirty years ago.
8
Two questions of great importance, both about getting away with serious misbehavior: 1) getting honest answers to real questions; and 2) what to do about the Republican refusal to consider Obama's nominee.
Chief Justice Roberts told the Committee things about himself that are clearly not true. He misled them, in a calculated way. He has not been just "calling balls and strikes." He is an ideologue, and he knew that from the first moment. He also knew he would not get confirmed that way, so he misled.
There have been no consequences. He got away with it. It is widely known, often commented upon, but there has been no suggestion of consequences.
There is no purpose in confirmation hearing of judges who are allowed to do that. We need more than good hard questions, we need honest answers. That means we need consequences for misbehavior like that of the Chief Justice.
Separately, there is the question of process. Can Republicans get away with what they did?
Contra our esteemed columnist writes, "it’s time to bring the Supreme Court to full strength, replacing one conservative with another," and I respectfully but firmly, totally disagree.
We are doing fine with 8 justices. We can do that for another four years. If it comes, we can do just as well with 7 justices, which would give us a way to consider the merits of a tie vs a narrow majority in the Court deciding fundamental questions.
Chief Justice Roberts told the Committee things about himself that are clearly not true. He misled them, in a calculated way. He has not been just "calling balls and strikes." He is an ideologue, and he knew that from the first moment. He also knew he would not get confirmed that way, so he misled.
There have been no consequences. He got away with it. It is widely known, often commented upon, but there has been no suggestion of consequences.
There is no purpose in confirmation hearing of judges who are allowed to do that. We need more than good hard questions, we need honest answers. That means we need consequences for misbehavior like that of the Chief Justice.
Separately, there is the question of process. Can Republicans get away with what they did?
Contra our esteemed columnist writes, "it’s time to bring the Supreme Court to full strength, replacing one conservative with another," and I respectfully but firmly, totally disagree.
We are doing fine with 8 justices. We can do that for another four years. If it comes, we can do just as well with 7 justices, which would give us a way to consider the merits of a tie vs a narrow majority in the Court deciding fundamental questions.
17
Even before we try to assess Neil Gorsuch's qualifications, we need to determine the legitimacy of the president who nominated him. After all, Trump lost the popular vote even though he had the assistance of a foreign super-cyber power.
We need to recall the damage done to the nation by our last illegitimate president---who also lost the popular vote but who was elected by a one vote margin in the Supreme Court. That president started a war based on falsified data; a war that destabilized the Middle East, strengthened a more dangerous rival (Iran), and led directly to the creation of ISIS. A war that helped to create a flood of refugees which would destabilize the EU.
That president also nominated two conservative Supreme Court justices---Roberts and Alito---who sided with other conservative justices on a series of 5-4, wrongly-decided rulings. For example: DC v. Heller, Citizens United v. FCC, Shelby County v. Holder, Burwell v. Hobby Lobby, among others. An illegitimate president appointing two illegitimate justices who generated a number of illegitimate legal precedents.
Let's establish our current president's legitimacy BEFORE addressing the qualifications of his Supreme Court nominee.
We need to recall the damage done to the nation by our last illegitimate president---who also lost the popular vote but who was elected by a one vote margin in the Supreme Court. That president started a war based on falsified data; a war that destabilized the Middle East, strengthened a more dangerous rival (Iran), and led directly to the creation of ISIS. A war that helped to create a flood of refugees which would destabilize the EU.
That president also nominated two conservative Supreme Court justices---Roberts and Alito---who sided with other conservative justices on a series of 5-4, wrongly-decided rulings. For example: DC v. Heller, Citizens United v. FCC, Shelby County v. Holder, Burwell v. Hobby Lobby, among others. An illegitimate president appointing two illegitimate justices who generated a number of illegitimate legal precedents.
Let's establish our current president's legitimacy BEFORE addressing the qualifications of his Supreme Court nominee.
8
Even before we try to assess Neil Gorsuch's qualifications, we need to determine the legitimacy of the president who nominated him.
Your ignorance of he electoral process disqualifies you from being taken seriously.
Your ignorance of he electoral process disqualifies you from being taken seriously.
5
Trump picks people for personal loyality over all else and falsehoods generated by Trump, and many in his administration, are too numerous to mention so many court cases are underway with many more expected. Attorney General Sessions credibility is already seriously questioned, negatively impacting his stature. Would Judge Gorsuch recuse himself from any cases involving Trump to negat clear conflict of interest concerns?
1
I think we have reached a prisoner's dilemma with regards to our governance and particularly the Supreme Court. The best situation would be for the parties to behave like reasonable, albeit disagreeing, adults and learn to compromise where they can, work together, provide hearings for the president's nominees (even if they will vote against them), and govern in good faith. However, there is an advantage to either party if they obstruct the other party, abuse the filibuster and other rules, and gum up the entire process.
The worst outcome in a prisoner's dilemma is if both parties try to gain the advantage. So the Democrats are left with a choice, they can take the high road, which will hurt them but may ultimately prove to be the best available form of government (assuming the Republicans continue to behave poorly), or they can obstruct and we will probably find ourselves with an even worse form of government.
That said, my comparison assumes that conservatives and liberals both have equally valid ideas to contribute to governance and that completely obstructing one or the other hurts society. That is a position that I'm sure the NYT readership will disagree with, and even I don't believe that the two parties are completely equal in the validity of their ideas. However, I do think we will be worse off with two obstructionist parties instead of one.
The worst outcome in a prisoner's dilemma is if both parties try to gain the advantage. So the Democrats are left with a choice, they can take the high road, which will hurt them but may ultimately prove to be the best available form of government (assuming the Republicans continue to behave poorly), or they can obstruct and we will probably find ourselves with an even worse form of government.
That said, my comparison assumes that conservatives and liberals both have equally valid ideas to contribute to governance and that completely obstructing one or the other hurts society. That is a position that I'm sure the NYT readership will disagree with, and even I don't believe that the two parties are completely equal in the validity of their ideas. However, I do think we will be worse off with two obstructionist parties instead of one.
1
The Advice & Consent clause is no accident. Before the rise of 'Factions' which we now call political parties, the founders understood that each presidential appointment, whether Secretary, General, Clerk, or Judge, would increase Executive Power, which they feared and overtly sought to limit. Even Hamilton, an ardent Federalist, understood the powers that would flow from such appointments.
So there was a check put in place to balance the power of appointment. Not the full legislature, but the deliberative body more representative of the states than of the people, the Senate, must both advise and consent to such appointments. Even a Senate controlled by the president's 'faction' might check a particularly unseemly appointment.
That is very good idea if you think about it. Whether Bork or Carswell or Thomas, some nominees might not be ideal justices, whatever the president may have been thinking at the time.
So there was a check put in place to balance the power of appointment. Not the full legislature, but the deliberative body more representative of the states than of the people, the Senate, must both advise and consent to such appointments. Even a Senate controlled by the president's 'faction' might check a particularly unseemly appointment.
That is very good idea if you think about it. Whether Bork or Carswell or Thomas, some nominees might not be ideal justices, whatever the president may have been thinking at the time.
2
No, we can't believe that a Justice is on one side or the other.
I remember when the late reporter for PBS Gwen Ifill was interviewing a newly retired Justice Stevens. She asked him, "Isn't it true that over your time on the court, you moved to the left"
Justice Stevens thought for a second, then responded courteously, "I really have no idea what you are talking about."
All we can hope for is that a person in this position has the ability to carefully assimilate all perspectives and then make a decision based on personal values values and precedent. Would anyone have predicted that Republican Governor and Attorney General of California Earl Warren would have turned out leading the landmark decisions he fought for.
AlRodbell.com
I remember when the late reporter for PBS Gwen Ifill was interviewing a newly retired Justice Stevens. She asked him, "Isn't it true that over your time on the court, you moved to the left"
Justice Stevens thought for a second, then responded courteously, "I really have no idea what you are talking about."
All we can hope for is that a person in this position has the ability to carefully assimilate all perspectives and then make a decision based on personal values values and precedent. Would anyone have predicted that Republican Governor and Attorney General of California Earl Warren would have turned out leading the landmark decisions he fought for.
AlRodbell.com
5
Several comments here urge resistance by Democrats to this nomination on the grounds of the shabby treatment accorded Judge Garland. I share the sentiment about how Garland was treated, but the math is ruthless: if Democrats try to filibuster, the Republicans will just change the rules and vote Grouch (and others) in by majority vote.
Of course, if my fellow Democrats and other assorted progressives had bothered to show up and VOTE in 2010 and 2014, the Obama Administration would have had eight years of a Democratic congress, and many things would be different - including Justice Garland now serving on the Court.
Of course, if my fellow Democrats and other assorted progressives had bothered to show up and VOTE in 2010 and 2014, the Obama Administration would have had eight years of a Democratic congress, and many things would be different - including Justice Garland now serving on the Court.
7
Justice has become flawed because of strict adherence to Party Line and the life experiences of each Justice. That is the iron clad summation of the Court, including all courts. Conservatives and Liberals have their thoughts and realities but that does not equate to Justice for most Americans. The Court is marred by centuries of extremely bad decisions, recent poor decisions are Citizens United and the gutting voting rights Act.
Therefore, Justice is not blind but conforms to the existing prejudices of the Court.
Therefore, Justice is not blind but conforms to the existing prejudices of the Court.
3
Thanks for this and for all your other columns. They are always relevant, articulate, thoughtful, and thought-provoking.
4
Thank you for this insightful commentary. I would also ask Judge Gorsuch about the process which brought him before the Judiciary Committee. "Do you believe that a duly elected (51%) President, in his final year in office, has the authority to nominate someone to fill a federal court vacancy, and that it is inappropriate for the Senate to refuse to give that nominee and up or down vote?"
14
“When a court adds to one person’s constitutional rights, it subtracts from the rights of others.” - Robert Bork
“A zero-sum theory of rights…” - Linda Greenhouse
Ms. Greenhouse misreads Judge Bork’s assertion. To summarize it accurately she would have said “A zero-sum theory of rights over and above those already spelled out in the Constitution…”
Judge Bork is no longer here to explain his comment, but permit me to provide what I think is an example of what he meant: abortion rights. Ms. Greenhouse’s view, I believe from reading her columns over many years, is that the decision to have an abortion - say a late term abortion - should be solely among a woman, her family and her doctor. No extraneous party is “harmed” by her abortion. But abortion opponents argue that a viable fetus capable of experiencing pain - along with justice itself - are harmed when that fetus is cruelly and painfully deprived of life it otherwise would have.
Here we are talking about the “rights” of the unborn. It is supremely ironic that a prime counterargument is that a mere fetus has no rights, and is not a “person” until birth. Or, put differently, rights granted a fetus effectively deprive women wishing to have an abortion of their own rights - an affirmation of Judge Bork’s assertion, which is so contemptuously dismissed by Ms. Greenhouse in her column today.
“A zero-sum theory of rights…” - Linda Greenhouse
Ms. Greenhouse misreads Judge Bork’s assertion. To summarize it accurately she would have said “A zero-sum theory of rights over and above those already spelled out in the Constitution…”
Judge Bork is no longer here to explain his comment, but permit me to provide what I think is an example of what he meant: abortion rights. Ms. Greenhouse’s view, I believe from reading her columns over many years, is that the decision to have an abortion - say a late term abortion - should be solely among a woman, her family and her doctor. No extraneous party is “harmed” by her abortion. But abortion opponents argue that a viable fetus capable of experiencing pain - along with justice itself - are harmed when that fetus is cruelly and painfully deprived of life it otherwise would have.
Here we are talking about the “rights” of the unborn. It is supremely ironic that a prime counterargument is that a mere fetus has no rights, and is not a “person” until birth. Or, put differently, rights granted a fetus effectively deprive women wishing to have an abortion of their own rights - an affirmation of Judge Bork’s assertion, which is so contemptuously dismissed by Ms. Greenhouse in her column today.
7
A straw-man (woman?) argument. It is easy to find a "victim" in the right to abortion if you sign on to the religious view that you believe life begins at conception. But of course, for those who don't buy that unscientific dogma, there is not victim but the people who denied the right to choose. Andt what about contraception? We forget the constitutional right to use contraception was established a mere 60 years ago, when it was crime in CT for married couples to use such devices. The vote striking down the law was 7-2. Who was injured by expanding married couples' rights to use contraceptives? Or, despite the dissent by Justice Burger, the right of unmarried people to do so in the Eisenstadt case seven years later? Who is injured when a devoted homosexual couple, living together and bringing up children for 40 years, is granted the right to marry? Bork's argument that there is a finite number of personal liberty rights in our society tells much about Mr. Bork. Smart as he was, he was clearly unsuited to decide such questions for all of us.
6
Don't be silly. He'll stonewall/evade. They all do. And he'll get away with it, because the Republicans don't care, the Democrats are timid, and the media have painted him as "mainstream." So much for people caring about the future of the Supreme Court. The best we can do is hope Ruth Ginsberg lives a long time.
18
I am not a lawyer but but I know history, I know literature and I know about the development of the English language. The US constitution and the Bill of rights were written in the only language known at the time plain simple English using the only dictionary available in the late 18th century. We don't need lawyers to interpret the constitution its language is plain and simple.
The sophistry of a Bork, Scalia or Gorsuch not withstanding originalist is simply a smokescreen for seeing things in the constitution that are simply not there.
The perfect example is the second amendment where the words militia and arms which have very specific narrow definitions in Samuel Johnson's dictionary. The second amendment is only about the right of the newly established nation called The United States of America to train and maintain professional armed forces. Just as Johnson's dictionary informed the authors that the second amendment was about the right of a sovereign government it informed the justices of the Supreme Court of the same original intent. That the majority of the Supreme Court "justices" chose to ignore the specificity of militia and arms speaks volumes to the state of US democracy.
I believe the USA is still a great nation but it needs a lot of fixing and the addition of another antiAmerican dogmatic ideologue is simple a confirmation that the SCOTUS is another institution needing overhaul.
Things have not changed in 240 years conservatives still hate the constitution.
The sophistry of a Bork, Scalia or Gorsuch not withstanding originalist is simply a smokescreen for seeing things in the constitution that are simply not there.
The perfect example is the second amendment where the words militia and arms which have very specific narrow definitions in Samuel Johnson's dictionary. The second amendment is only about the right of the newly established nation called The United States of America to train and maintain professional armed forces. Just as Johnson's dictionary informed the authors that the second amendment was about the right of a sovereign government it informed the justices of the Supreme Court of the same original intent. That the majority of the Supreme Court "justices" chose to ignore the specificity of militia and arms speaks volumes to the state of US democracy.
I believe the USA is still a great nation but it needs a lot of fixing and the addition of another antiAmerican dogmatic ideologue is simple a confirmation that the SCOTUS is another institution needing overhaul.
Things have not changed in 240 years conservatives still hate the constitution.
14
I think the people should be allowed to speak on the next justice. Therefore, I support waiting until the 2020 election to fill the vacancy.
16
Dr. Walter Quijano probably did not have the facts on his side. For that, he would have needed to prove that correlation was identical to causation in this case. (Something Murray and Hernstein tried to do in the Bell Curve, and failed.)
However even if Dr. Quijano's position was not prejudiced, it was still racist. See the paper below.
https://www.academia.edu/4388792/Racism_and_Prejudice
However even if Dr. Quijano's position was not prejudiced, it was still racist. See the paper below.
https://www.academia.edu/4388792/Racism_and_Prejudice
3
Typical that Greenhouse would not concede that the Democrat effort to block Bork began with baldfaced lies by Senator Kennedy on the Senate floor. According to The Economist, Aug. 27th, 2009 ("Less than an hour after President Reagan nominated Robert Bork, a fierce conservative, to the Supreme Court, he was skewering him on the Senate floor. “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution…and the doors of the federal courts would be shut on the fingers of millions of citizens,” he thundered. “There was not a line in that speech that was accurate,” wailed Judge Bork afterwards. He was right. But it worked.") Unfortunately, the legacy of the Bork take down by Democrats has been the escalating partisanship and vitriol we now view as the norm. It wasn't always that way . . .
11
Judge Bork cooked his own goose with his handling of the Saturday Night Massacre during the Nixon Administration. Whatever Sen. Kennedy said only added to that already insurmountable barrier.
7
@CHM, Bork's nomination was rejected by a bipartisan vote on the full Senate floor. Six Republican senators voted against him. (Two Democratic senators voted for him.)
4
Not one line that is accurate? Really?
Even in 2017 conservatives are rallying to make abortion illegal.
There were no shortage of racist as well as misogynistic views at Trump rallies - boldly printed on T shirts and other wares. And people to this day are still arguing to keep schools segregated in fact, if not by law. These people endorsed and voted for Trump in hopes that their white America will come to be.
From the VP down there are a number of conservatives who argue that evolution has no place in schools and that the Bible holds the true history of life.
individual rights have definitely taken a downturn after 9/11 - and they can storm your house in raids and hold you indefinitely.
And with citizens united and the support of corporate "arbitration" and ending class action lawsuits the doors of the courts have been slammed shut for millions.
I struggle to see what Kennedy got wrong.
Even in 2017 conservatives are rallying to make abortion illegal.
There were no shortage of racist as well as misogynistic views at Trump rallies - boldly printed on T shirts and other wares. And people to this day are still arguing to keep schools segregated in fact, if not by law. These people endorsed and voted for Trump in hopes that their white America will come to be.
From the VP down there are a number of conservatives who argue that evolution has no place in schools and that the Bible holds the true history of life.
individual rights have definitely taken a downturn after 9/11 - and they can storm your house in raids and hold you indefinitely.
And with citizens united and the support of corporate "arbitration" and ending class action lawsuits the doors of the courts have been slammed shut for millions.
I struggle to see what Kennedy got wrong.
4
I learn so much, and broaden my thinking from reading your columns. Thank you.
7
No confirmation hearings until we know whether or not the current President is a tool of Russia, please.
2
The question is whether he is a judge or a so-called judge. It's not an idle question because it reads on whether he is willing to be independent.
All of Clinton's and Obama's Supreme Court members invariably vote in a solid leftist block, reflecting zero independence in any matter of significance. And Garland would obviously have joined them. But Republican appointed judges often show independence re major cases. Kennedy is a prime example. Souter voted largely with the leftist block. And even Roberts voted to save Obamacare by unilaterally deeming the individual mandate a tax after Obama repeatedly shrieked it wasn't a tax. So cut the 'independence' garbage.
5
Editorial typo: "that Bush may have been sentenced to death in part..." should read Buck.
Ask him if he believes it was constitutional to deny any action on the nomination to the Supreme Court by a president then beginning to serve his 8th year in office.
2
What I wonder is how Judge Gorsuch feels the refusal of the Republican-controlled Senate to even give a hearing to Merrick Garland affects the legitimacy of the Court in the eyes of a large number, perhaps even a majority, of Americans. Given that Mr. McConnell's action was as nakedly partisan as it gets, it's hard to see how the court with a Justice Gorsuch will not seem like just another political institution.
2
I fully support the position that no legislation and no appointments (zero, zilch, none) should proceed through this congress until:
- the investigation into DJT ties to Russia are completed
and
- DJT provides his tax returns
I am not convinced that we do not have a compromised president that is indebted to and beholden to a foreign power.
Until that is publicly resolved nothing for DJT moves forward. Nothing!
- the investigation into DJT ties to Russia are completed
and
- DJT provides his tax returns
I am not convinced that we do not have a compromised president that is indebted to and beholden to a foreign power.
Until that is publicly resolved nothing for DJT moves forward. Nothing!
2
You hold to the liberal orthodoxy that the Republicans stole the seat by failing to give Judge Garland a hearing. Maybe. But, there can be no mistake: given Biden’s and Schumers comments made when the political tables were turned, the Democrats are no different.
You mock the zero-sum theory of “rights,” and in most cases you are correct; a rising tide does lift all ships. But immigration may be an exception. This nation is wealthy, but our resources are still limited. If we encourage 11 million illegal immigrants to stay, it is very likely we are disallowing millions who are playing by the rules and trying to immigrate in compliance with our laws. This is not good.
President Trump’s travel ban, and the judicial ruling blocking it, are worth discussing. Many qualified observers feel that the President has the legal authority to oversee our borders. Yesterday’s ruling was likely serious judicial overreach. It’s not at all clear whether the ban was based on religion, and even it if was, it’s not clearcut whether the First Amendment’s proscription of religious discrimination applies to non-citizens wishing to enter the country.
Personally, I hope that who ever joins SCOTUS believes that court should, to the extent possible, apply the law and Constitution to the issues before the court, and not, as Justice Ginsburg implicitly advocated a year ago, base decisions on the Justice’s personal philosophy. The Justices should interpret the law; it is not their role to write new law.
You mock the zero-sum theory of “rights,” and in most cases you are correct; a rising tide does lift all ships. But immigration may be an exception. This nation is wealthy, but our resources are still limited. If we encourage 11 million illegal immigrants to stay, it is very likely we are disallowing millions who are playing by the rules and trying to immigrate in compliance with our laws. This is not good.
President Trump’s travel ban, and the judicial ruling blocking it, are worth discussing. Many qualified observers feel that the President has the legal authority to oversee our borders. Yesterday’s ruling was likely serious judicial overreach. It’s not at all clear whether the ban was based on religion, and even it if was, it’s not clearcut whether the First Amendment’s proscription of religious discrimination applies to non-citizens wishing to enter the country.
Personally, I hope that who ever joins SCOTUS believes that court should, to the extent possible, apply the law and Constitution to the issues before the court, and not, as Justice Ginsburg implicitly advocated a year ago, base decisions on the Justice’s personal philosophy. The Justices should interpret the law; it is not their role to write new law.
4
I'd like to know more of his views on worker rights. Considering his closeness to Phil Anshutz, a man who has destroyed more middle class jobs than anyone I can think of, I would like to understand Gorsuch view of the little man. Does his increased wealth due to his relationship with wealthy benefactors impair his judgement to help the little man? Or, does he even recognize those not born into his circle of wealth?
Considering trump's push to rid us of things safe, whether on the job or in the store, will Gorsuch look out for me?
Considering trump's push to rid us of things safe, whether on the job or in the store, will Gorsuch look out for me?
1
Re: "A zero-sum theory of rights:"
This seems endemic in conservative thought. These days it is expressed as "special rights" and "what about my rights?" when equal rights for people are discussed. I am not alone as one who has commented on the phenomena of people wailing for the rights they feel they are losing when someone else is asking for the rights that they take for granted. Well. take for granted until someone else feels that it is a right they should have as well. The most basic right for everyone is to simply be. And even that seems too much for some to endure in others.
This seems endemic in conservative thought. These days it is expressed as "special rights" and "what about my rights?" when equal rights for people are discussed. I am not alone as one who has commented on the phenomena of people wailing for the rights they feel they are losing when someone else is asking for the rights that they take for granted. Well. take for granted until someone else feels that it is a right they should have as well. The most basic right for everyone is to simply be. And even that seems too much for some to endure in others.
1
I only have one question for Judge Gorsuch: Do you think Judge Garland should have been given a hearing and a chance to be on the Supreme Court?
3
By accepting the Trump nomination to the stolen Supreme Court seat Mr Gorsuch shows that his ambition exceeds his ethics, a fact that should be disqualifying.
1
The brazen attempt to shift filling this seat from President Obama to President Trump must not be allowed to stand. If the rules of decorum are treated as vital when one party is in power and ignored for the other, the fall of the Rule of Law cannot be far behind.
Any Democrat who votes to approved this outrage loses my support for life.
Any Democrat who votes to approved this outrage loses my support for life.
1
This column is naive.
The writer fails to address the critical issue here, which is that a Supreme Court nominee was denied a hearing constitutionally due to him by Senators who were behaving in an authoritarian way. To not oppose the latest nominee's hearing to go forward is to approve of this unconstitutional and tyrannical act.
Further, she's excusing that fact by writing that the confirmation hearing shouldn't be "pro forma," as though all the hearings for Trump's other nominees were deep and probing, and as if the questions asked by Democrats made any difference at all.
Looking away from icky facts won't make them disappear. Pretending that Gorsuch's views about a recent case will change anything is doing just that.
The writer fails to address the critical issue here, which is that a Supreme Court nominee was denied a hearing constitutionally due to him by Senators who were behaving in an authoritarian way. To not oppose the latest nominee's hearing to go forward is to approve of this unconstitutional and tyrannical act.
Further, she's excusing that fact by writing that the confirmation hearing shouldn't be "pro forma," as though all the hearings for Trump's other nominees were deep and probing, and as if the questions asked by Democrats made any difference at all.
Looking away from icky facts won't make them disappear. Pretending that Gorsuch's views about a recent case will change anything is doing just that.
2
How Ms. Greenhouse can Gorsuch opine on how he would have voted on a past case when he didn't read all the briefs, didn't hear the oral arguments, didn't exchange views with his fellow justices, etc.?
As trite as the saying goes, elections do matter. Trump won. He nominated Gorsuch. All Democrats will oppose. All Republicans will support. McConnell will exercise the nuclear option. And Gorsuch will take his seat on the bench.
Not such a hard outcome to predict.
As trite as the saying goes, elections do matter. Trump won. He nominated Gorsuch. All Democrats will oppose. All Republicans will support. McConnell will exercise the nuclear option. And Gorsuch will take his seat on the bench.
Not such a hard outcome to predict.
4
I only want to hear one question:
"Judge Gorsuch, how do interpret the Emoluments Clause of the US Constitution?"
Assuming he does not answer....follow up with "Does cash meet the definition of 'gift' as the Founding Fathers drafted the Emoluments Clause?"
When he again does not answer, say " Is there anything that should make us believe that Donald Trump is NOT violating the Emoluments Clause of our Constitution?"
Unless Gorsuch says "Yes, Donald Trump is violating the Constitution;" I will instruct my elected Senators to vote AGAINST Gorsuch's nomination and also Filibuster his nomination.
Simple as that.
"Judge Gorsuch, how do interpret the Emoluments Clause of the US Constitution?"
Assuming he does not answer....follow up with "Does cash meet the definition of 'gift' as the Founding Fathers drafted the Emoluments Clause?"
When he again does not answer, say " Is there anything that should make us believe that Donald Trump is NOT violating the Emoluments Clause of our Constitution?"
Unless Gorsuch says "Yes, Donald Trump is violating the Constitution;" I will instruct my elected Senators to vote AGAINST Gorsuch's nomination and also Filibuster his nomination.
Simple as that.
4
"That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question."
No, it is THE question.
"Judge Gorsuch, as a self-described "strict originalist" and "textualist" did the Senate carry out it's "advice and consent" duties in regards to the nomination of Judge Garland last year?"
"Judge Gorsuch, in accepting the President's nomination of yourself for SC associate justice, are you not accepting stolen goods?"
Any other lines of questioning from Democratic senators is a slap in the face of judge Garland, president Obama, and all fair-minded Americans.
I reject the very premise of your column!
No, it is THE question.
"Judge Gorsuch, as a self-described "strict originalist" and "textualist" did the Senate carry out it's "advice and consent" duties in regards to the nomination of Judge Garland last year?"
"Judge Gorsuch, in accepting the President's nomination of yourself for SC associate justice, are you not accepting stolen goods?"
Any other lines of questioning from Democratic senators is a slap in the face of judge Garland, president Obama, and all fair-minded Americans.
I reject the very premise of your column!
3
"That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question."
Oh please, Obama had two picks given to him. Then you want to cry when he doesn't get a third.
Oh please, Obama had two picks given to him. Then you want to cry when he doesn't get a third.
3
Funny how Democrat nominees must only be qualified while republican nominees must answer litmus test questions.
6
Gorsuch should be asked about voting rights and voter suppression; these are the crucial cases over the next few years. He should be quizzed in detail about his level of knowledge of the little "tricks" used in the Jim Crow era to prevent blacks from voting. Then ask him about contemporary tricks, such as Alabama's attempt to close 31 driver's license bureaus, including those in every county in which blacks make up more than 75% of registered voters (this was in fall 2015, after Alabama's voter ID law went into effect). As I recall, the Obama Justice Department squelched this idea. It's unlikely a Trump/Sessions department would lift a finger, which would leave it up to the courts. Gorsuch should be closely questioned on how he would approach laws and policies with neutral surface explanations but which result in making harder for people, especially lower-income and minorities to register, to get IDs, to not be purged from the rolls, etc.
4
Lots of hand-wringing here by people upset that this is a "stolen" seat.
But the fact is (and it is a fact), that a Democratic senate would have done the exact same thing the Republicans did to Garland. And all the hand-wringers here know it, and would have approved of it.
But the fact is (and it is a fact), that a Democratic senate would have done the exact same thing the Republicans did to Garland. And all the hand-wringers here know it, and would have approved of it.
13
Sheer nonsense......
3
How "a fact?"
2
Joseph, I do not know of any facts that support your hypothesis, which you label a fact, that "a Democratic would have done the exact same thing the Republicans did to Garland." Mitch McConnell's announcement, even before President Obama nominated Judge Garland, that no nomination by Obama would even be considered by the Senate, was unprecedented as far as I know.
2
Freedom as spelled out in our Declaration of Independence is an inalienable right, then along came our Constitution that tried to restrict Freedom to land owning white people and set a three fifths value on human slaves. We then fought a Civil War to reaffirm the innate value of human life beyond race or qualifications. The answer of Judge Bork would have set our nation back to a pre Civil War ethos where Freedom would have been apportioned in a tea spoon just as we currently seek to give out health care as we dismantle the ACA. Now which do we want ? a nation that stands on deep principles of the value of Life or wone where these rights are only commodities to be bartered like a used car.
14
No Garland, no Gorsuch.
Gorsuch's qualifications don't matter - as Garland's didn't.
I look for ALL Democrats to demand: NO GARLAND, NO GORSUCH.
One Congressman proposed that, to support Gorsuch, Democrats should demand confirmation of Garland simultaneously. That would be the only just outcome.
NO GARLAND, NO GORSUCH. Democratic leaders: Hear your base.
Gorsuch's qualifications don't matter - as Garland's didn't.
I look for ALL Democrats to demand: NO GARLAND, NO GORSUCH.
One Congressman proposed that, to support Gorsuch, Democrats should demand confirmation of Garland simultaneously. That would be the only just outcome.
NO GARLAND, NO GORSUCH. Democratic leaders: Hear your base.
13
And Republicans will cheerfully follow Harry Reed's rogue power grab precedent and extend his no filibuster rule to Supreme Court nominees. Case closed.
4
Let's hope Linda Greenhouse sent copies of her article to all members of the Senate Judiciary Committee.
4
Time has shown Yale's wisdom in offering T a position in its Law class; time has also shown the poverty in Justice T's mind.
4
Ms. Greenhouse is the best op-ed writer contributing to the NYT today.
17
You wrote: 'It was “clear,” the chief justice concluded, “that Bush may have been sentenced to death in part because of his race.”' How about Buck, not Bush?
How can Gorsuch ignore the rightful nominee. He has an ethics problem already. Garland is the ethical nominee. Step down Mr. Gorsuch if you have any scruples at all.
14
Thank you for the insightful look at questions for the nominee. Unfortunately he will have his answer prepared, I only wonder whether it will be honest. The reason I would not affirm him, other than Garland and Gorsuch's wealthy benefactor, is his quote from Kissinger in his college yearbook: "The illegal we do immediately, the unconstitutional takes a little longer." This is so repugnant it should disqualify him absolutely, regardless of any subsequent conduct.
12
Ms. Greenhouse touches on a very important principle when she states that for many nominees, the confirmation hearing is the last and perhaps only time they will be accountable in a public forum for their actions. I believe this is a fundamental flaw in our US Constitution, albeit not the only one.
The frustration that brought Trump to the White House can be summarized as, "Washington doesn't listen to the people and act on behalf of the citizens. Washington is unresponsive to our needs." That is the cancer that is eroding our democratic institutions. The Supreme Court is but one body that has, in many cases, turned a deaf ear to what citizens want. Lifetime tenure has raised the stakes of each nomination to an epic battle, one that each party thinks has to be one at all costs. Hence the complete disrespect to Judge Garland last year.
The fix is to amend the Constitution so that Supreme Court justices have 18 year terms, with one expiring every 2 years. They can be renominated and re-approved, but at least every 18 years they will be called to account for their votes in a public forum. If times have changed and new thinking is needed -- are you listening, Mr. Justice Thomas? -- the seat can be refilled.
And with each president guaranteed to have 2 nominations, court packing by the party in power is reduced.
The frustration that brought Trump to the White House can be summarized as, "Washington doesn't listen to the people and act on behalf of the citizens. Washington is unresponsive to our needs." That is the cancer that is eroding our democratic institutions. The Supreme Court is but one body that has, in many cases, turned a deaf ear to what citizens want. Lifetime tenure has raised the stakes of each nomination to an epic battle, one that each party thinks has to be one at all costs. Hence the complete disrespect to Judge Garland last year.
The fix is to amend the Constitution so that Supreme Court justices have 18 year terms, with one expiring every 2 years. They can be renominated and re-approved, but at least every 18 years they will be called to account for their votes in a public forum. If times have changed and new thinking is needed -- are you listening, Mr. Justice Thomas? -- the seat can be refilled.
And with each president guaranteed to have 2 nominations, court packing by the party in power is reduced.
63
I disagree. Supreme Court justices are appointed for life to prevent their votes from being politicized. Your proposal would subject them to the partisan political and ideological whims of the moment. It isn't the Court's job to listen to what the citizens want. In fact, that is exactly what it shouldn't do. It's role is to interpret the Constitution as a matter of law, not to win a popularity contest every few years.
Congress's power to pass legislation and our power to amend the Constitution checks the Court's power; the Court's power to declare laws constitutional or unconstitutional checks Congressional and presidential power. Your proposal would negatively impact the checks and balances that prevent one branch of government from taking too much power to itself.
What we, the people, need to do is the hard work of citizenship. Elect representatives who put duty to country and Constitution ahead of political partisanship; representative democracy ahead of ideological agenda. If the Court rules in a way contrary to what the people truly want, urge Congress to pass legislation or work to amend the Constitution.
Our system gives us the means to make it work properly; we just need the will to make that happen. If we don't put country, democracy, the Constitution before ideological agenda and political partisanship, why should our representatives?
Congress's power to pass legislation and our power to amend the Constitution checks the Court's power; the Court's power to declare laws constitutional or unconstitutional checks Congressional and presidential power. Your proposal would negatively impact the checks and balances that prevent one branch of government from taking too much power to itself.
What we, the people, need to do is the hard work of citizenship. Elect representatives who put duty to country and Constitution ahead of political partisanship; representative democracy ahead of ideological agenda. If the Court rules in a way contrary to what the people truly want, urge Congress to pass legislation or work to amend the Constitution.
Our system gives us the means to make it work properly; we just need the will to make that happen. If we don't put country, democracy, the Constitution before ideological agenda and political partisanship, why should our representatives?
4
Oh yes Linda, let's ask questions about decided cases so you and your cohorts in the media can twist and spin Judge Gorsuch's responses. He is eminently well qualified based on the ABA rating. So he will sail through confirmation. Did you write this article for Sotomzyor and Kayan? I don't think so. Your well known bias is again clear for all to see. Gorsuch will be confirmed.
8
"well qualified" and possessing wisdom and empathy are not the same thing
they weren't asked those questions because they had demonstrated some understanding of the ways in which the law might limit people's opportunities at justice or their pursuit of happiness. As her article states, does the nominee think there have to be "winners and losers" when it comes to rights.
they weren't asked those questions because they had demonstrated some understanding of the ways in which the law might limit people's opportunities at justice or their pursuit of happiness. As her article states, does the nominee think there have to be "winners and losers" when it comes to rights.
2
It is refreshing to read reasoned discussion about issues instead of the tsunami of vitriol offered up to us through so many purveyors of truly fake news, now sitting atop a very lofty perch.
Thank you, Ms. Greenhouse.
Thank you, Ms. Greenhouse.
4
Are you accusing the NYtimes of knowingly stating things about Gorsuch that are factually false? If so, provide evidence. If not, your claim that the NYtimes prints fake news is itself fake news.
I agree that what a Candidate did in high school should never in itself disqualify that Candidate (as does Ms. Greenhouse). But if he really said or did those things, it is not fake news.
I agree that what a Candidate did in high school should never in itself disqualify that Candidate (as does Ms. Greenhouse). But if he really said or did those things, it is not fake news.
Ms Greenhouse's columns are always well worth reading. This article's historical perspective taken from the Bork hearings is a gem.
4
This opinion, Linda, and your earlier one should be required reading for every Senator questioning Judge Gorsuch and evaluating his fitness to serve on the Supreme Court. Questioning Judge Gorsuch on how he would have applied his originalist views to cases already decided such as Brown v Board of Education, Gideon v Wainwright, Shelby v Alabama, or any case involving the EPA, plus Buck v Davis, may well produce answers as illuminating as Judge Bork's response to Senator Paul Simon.
7
Justice Thomas writes that "the court’s reasoning is highly factbound", as if using facts is an insult!
3
Democrats should offer the same to gorsuch as was offered to Judge Garland.
Anything more would be allowing republicans to get away with theft.
Anything more would be allowing republicans to get away with theft.
12
Another excellent article. thomas and alito are terrible people and worse justices. bork made scalia look reasonable.
6
Regardless of who the Republicans nominated, even if it had been Barack Obama, the response should have been 'We will neither meet with nor consider any candidate other than Judge Garland at this time.'
Affronts to the democratic process and tradition have to be opposed, and the illegitimacy of Judge Garland's dismissal is appalling.
Affronts to the democratic process and tradition have to be opposed, and the illegitimacy of Judge Garland's dismissal is appalling.
14
Most excellent article getting at some basics of "a zero-sum theory of rights..."The exchange between Senator Simon and Judge Bork most illuminating to those of us who had forgotten all the disquieting things about Bork. Which side will Gorsuch be on indeed? Thank you, Linda Greenhouse.
16
The awful citizens united supreme court decision was endorsed by Gorsuch. Enough said. Trump's deeply divisive and short sighted move must be blocked.
13
This is another beautifully written and reasoned column by Linda Greenhouse. Her thoughts about making the confirmation hearing of Judge Neil Gorsuch meaningful are right on target. Too bad there is no provision for Senators to bring in guest questioners. Any Democratic Senator in his or her right mind would gladly yield time to Ms. Greenhouse.
4 to 4 for four more years. Our liberty depends on it.
I would suggest this question:
"Is the Senate's refusal to consider a Supreme Court nominee merely a simple constitutional method of rejecting a nominee, thus fulfilling the 'advice and consent' clause'? If not, isn't the Senate's ban on final year presidential nominees unconstitutional?"
"Is the Senate's refusal to consider a Supreme Court nominee merely a simple constitutional method of rejecting a nominee, thus fulfilling the 'advice and consent' clause'? If not, isn't the Senate's ban on final year presidential nominees unconstitutional?"
2
I will be petitioning both of my senators along with Chuck Schumer and all Democrats on the Senate Judiciary Committee to vote "no" on Judge Gorsuch or any other nominee put forth by Mr. Trump.
Mr. Trump lost the popular vote by almost 3 million, has no mandate, and has almost daily exhibited the many ways in which he is unfit to hold the office of president. His values are not the values of most of the country. Any nominee he puts forth for the SCOTUS is not someone I would want on it.
Had Mitch McConnell lived up to his job description, Merrick Garland would already be on the court.
Mr. Trump lost the popular vote by almost 3 million, has no mandate, and has almost daily exhibited the many ways in which he is unfit to hold the office of president. His values are not the values of most of the country. Any nominee he puts forth for the SCOTUS is not someone I would want on it.
Had Mitch McConnell lived up to his job description, Merrick Garland would already be on the court.
2
Courts are not here to invent new rights. It is not clear from Ms. Greenhouse's teary-eyed account of Ted Olson that she understands that. For example, gay marriage is not a right, and when forced on states by somebody (Justice Kennedy, one sole individual) it becomes what it in reality is: an entitlement.
Second, McConnell was masterly in his rolling of President Obama on Garland, which was only fair, as Obama was quite adept on rolling Congress for eight years. He got his comeuppance, and handed the Republic to conservatives. Some legacy.
And if Democrats like Ms. Greenhouse wanted to control who gets on the Court, they should have been smarter on whom they ran in the last election, and on persuading Ruth Ginsburg to retire. Ms. Greenhouse was likely a strong supporter of the failed Hillary. Too bad, so sad. Now the Supreme Court is lost for the left for the next generation - you have to laugh at the ineptitude.
Third, the Roberts decision seems fair, but I will not dismiss Justice Thomas’ logic without reading the dissent. Justice Thomas is typically rigorous in his logic.
And since Ms. Greenhouse wades into Bork territory, I can’t resist a final dig: Justice Thomas is fair recompense for the circus Democrats foisted on us with Bork.
Have Democrats ever done anything smart?
Second, McConnell was masterly in his rolling of President Obama on Garland, which was only fair, as Obama was quite adept on rolling Congress for eight years. He got his comeuppance, and handed the Republic to conservatives. Some legacy.
And if Democrats like Ms. Greenhouse wanted to control who gets on the Court, they should have been smarter on whom they ran in the last election, and on persuading Ruth Ginsburg to retire. Ms. Greenhouse was likely a strong supporter of the failed Hillary. Too bad, so sad. Now the Supreme Court is lost for the left for the next generation - you have to laugh at the ineptitude.
Third, the Roberts decision seems fair, but I will not dismiss Justice Thomas’ logic without reading the dissent. Justice Thomas is typically rigorous in his logic.
And since Ms. Greenhouse wades into Bork territory, I can’t resist a final dig: Justice Thomas is fair recompense for the circus Democrats foisted on us with Bork.
Have Democrats ever done anything smart?
3
John, the Supreme Court made marriage its business in Loving v. Virginia. Are you willing to state outright that Loving was wrongly decided? If so, the marriage of Virginia resident Clarence Thomas would be void.
And where would you stand on the federal government insisting that Utah proscribe polygamy in order to join the union? Does the first amendment not matter? It insists on freedom of religion, yet the government proscribes polygamy, both central tenets of both mormonism and islam.
And where would you stand on the federal government insisting that Utah proscribe polygamy in order to join the union? Does the first amendment not matter? It insists on freedom of religion, yet the government proscribes polygamy, both central tenets of both mormonism and islam.
4
There should be no hearing on this nominee for 11 months. We might question if a President in first year of a term, with no experience in the job, has the right to appoint a Supreme Court justice.
2
Weird how that zero sum game applies only to the poor, never to the rich. I'm referring, of course, to Reagan's "rising tide lifts all boats" justification for huge tax cuts to the rich. The philosophy appears to be that if you give more to the rich, everyone benefits; if you give more to the poor, the rich suffer.
That the opposite is true is a fact completely lost on the True Believers.
That the opposite is true is a fact completely lost on the True Believers.
3
Nominees to the Supreme Court should be asked during their confirmation hearing if he or she believes Roe v. Wade is settled law.
Senators should be prepared to play the video of now-Chief Justice Roberts answering, under oath, yes.
Senators should be prepared to play the video of now-Chief Justice Roberts answering, under oath, yes.
1
I thoroughly enjoyed this article. I'm betting that Gorsuch reads it and so knows how to answer the question.
Bork was really scary.
Bork was really scary.
2
This will be an asterisk Supreme Court.
Their rulings should be ignored.
The Corporate Coup of our government is almost complete.
Their rulings should be ignored.
The Corporate Coup of our government is almost complete.
3
Looking back into history might be a problem for our lawmakers. They prefer to get their 10 seconds of TV fame (and appealing to their base) by bringing up hypothetical hot-button topics like abortion and immigration. K Street paid good money for those senators to mold business friendly legislation, and not to rehash ancient history about some dude being put to death.
1
I would have Judge Gorsuch answer whether he believes he's more qualified than Chief Judge Garland for the job based on any objectively measurable criteria (he's not), and what his thoughts are as he's answering questions from senators that a far superior candidate from the second most important federal court nationwide who's well-known for his centrist views and as a rare "feeder" judge to both liberal and conservative justices on SCOTUS didn't even get to meet any of them privately. Finally, given the above, why anyone with an ounce of integrity would not instantly withdraw.
5
The claim of "originalism" used to obfuscate ulterior motives for a decision is another very important and relevant topic that needs Ms Greenhouse's wonderfully thoughtful and clear explication.
1
2 questions---first do you agree with the statement that selecting House and Senate chaplains is unconstitutional ? Per some little guy named Madison who wrote it would be against the first and 4th amendments.
Secondly, do you agree with Madison's statement that religion flourishes best in it purest form without financial support from the state?
His responses would be particularly enlightening as to the matter of separation of state and religion and if his "originalism" is real since Madison's opinions on constitutional questions and founders intention are pretty "original"
Secondly, do you agree with Madison's statement that religion flourishes best in it purest form without financial support from the state?
His responses would be particularly enlightening as to the matter of separation of state and religion and if his "originalism" is real since Madison's opinions on constitutional questions and founders intention are pretty "original"
2
Robert Bork should never had been so bitter. His cramped view of constitutional rights found full expression just a few years after his nomination was defeated in the person of Clarence Thomas, who is so intent on proving he doesn't owe his seat to his race that he dismisses discrimination as a factor in virtually every case he hears.
6
Bork disqualified himself in the Saturday Night Massacre. As Solicitor General, he was nominally third in charge of the Justice Department. When Elliott Richardson and William Ruckleshaus honorably resigned rather than to carry out Richard Nixon's illegal order to fire Special Prosecutor Archibald Cox, Bork stepped up and let politics and ambition supersede his regard for the rule of law. By firing Cox, he preempted his own ability to ascend to the Supreme Court.
3
If the dissenters thought the case is facr-specific and won't set a broad precedent, why did they balk at granting review? By their own terms, it would not do much harm.
2
Senate Republicans used raw power to get what they wanted by refusing, for almost a year, to perform their constitutional duty to consider President Obama's nominee for the Supreme Court. Democrats must show that they are able to act in a united fashion and that they are ready, willing and able to fight back by refusing to vote for the Republican nominee. To do otherwise is simply weak. The quality of the nominee is irrelevant in this particular fight. That this move will lead to Republicans changing the rules to allow a simple majority on Supreme Court nominations is just fine -- a weapon (the filibuster) that you can never use is a worthless weapon and ti's just as well that this fact is made clear.
6
Before Gorsuch is considered one question needs to be answered. If Ginsburg or Breyer leaves office in the next three years will he or she be replaced with a liberal? Because that is what the Republicans said was the reason for protecting Scalia's seat. If the answer is no, it is a shameless power grab that should not be tolerated. To consider Gorsuch the Senate must enter into a binding agreement stating that they "owe us one".
8
Well, that isn't going to happen. Nor should it. If you want a liberal Jurist to replace Justices Breyer or Ginsburg you're going to have to do it the same way the Republicans did it, by winning elections.
Vox Populi Vox Dei.
Vox Populi Vox Dei.
3
Ah. But we did. Twice.
1
Because of his dissent, should Justice Thomas not resign as he perceives he might become violent when he disagrees with a majority decision?
7
Ms. Greenhouse, the issue of whether Mr. Gorsuch is qualified to serve on the Supreme Court is not a question of how he would have ruled on any particular case, but rather on his own qualities. As a federal judge, and prior to that, employee of the Department of Justice, I have to assume that he is committed to the rule of law first and foremost with loyalty to any political party a remote second.
If this is the case, I further assume that he has to be better than the rest of us when it comes to the personal qualities of Honesty, Integrity and Character (put in caps purposely to exhibit just how important and valuable these qualities are), and lives by these qualities.
If all of this is true, I believe he must then have to answer the question of why he even accepted the nomination to the Supreme Court in light of the fact that, as you so accurately stated, "That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland ..".
My take is that he lacks the above qualities, regardless of how he writes his resume, and his nomination should be filibustered by Democrats. This nomination was illegally stolen from President Obama by the Republican Senate, and no one who claims that their single life's purpose is to the rule of law and nothing else, would have accepted this purloined nomination.
If this is the case, I further assume that he has to be better than the rest of us when it comes to the personal qualities of Honesty, Integrity and Character (put in caps purposely to exhibit just how important and valuable these qualities are), and lives by these qualities.
If all of this is true, I believe he must then have to answer the question of why he even accepted the nomination to the Supreme Court in light of the fact that, as you so accurately stated, "That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland ..".
My take is that he lacks the above qualities, regardless of how he writes his resume, and his nomination should be filibustered by Democrats. This nomination was illegally stolen from President Obama by the Republican Senate, and no one who claims that their single life's purpose is to the rule of law and nothing else, would have accepted this purloined nomination.
119
So a senator is doing Constitutional due diligence not by asking questions and seeking answers, but by having to Assume, as Jim Newman puts it, the best based on career progression? If Judge Gorsuch were applying for a loan, that is not what the bank would do. They would look at income, loan history, assets, credit report, etc. Banks should not assume like they did in the 'No Income No Job' failed mortgages. Why is there a lower standard for a lifetime appointment to the High Court than I faced getting several mortgages?
Since SCOTUS's job is legal, of course this applicant should be asked about his legal background, experience, and opinions. "What would you do if ..." questions are standard on job interviews everywhere else.
Since SCOTUS's job is legal, of course this applicant should be asked about his legal background, experience, and opinions. "What would you do if ..." questions are standard on job interviews everywhere else.
3
This article shows why Robert Bork's rejection was not the partisan politicization of the Supreme Court nomination and confirmation process that the right accuses it of being. He was rejected because adherence to his ideology would gave prevented him from applying the Constitution as written by the framers and supported by precedent fairly in cases where his ideology ran counter to its words and principles.
History is replete with examples of presidents who nominated judges to the supreme court believing that they would rule according to a certain political philosophy, but were disappointed when the nominee ended up ruling, not based on ideology, but on the Constitution. Many of these justices, on the left and the right, made rulings that flew in the face of their own political philosophies because their duty to the Constitution and the rule of law demanded it. They had no agenda, other than to interpret the Constitution as fairly and appropriately as they could in the times in which they lived.
Is Judge Gorsuch such an individual? Can he see beyond his partisan political views in order to do his duty to the Constitution and the country? This is what the Senate should be determining.
But Congress remains too mired in ideology and partisan political agendas, particularly the Republicans, to do their duty to the country and the Constitution. Will it ever be so? Or will we, the people, do something to change that?
History is replete with examples of presidents who nominated judges to the supreme court believing that they would rule according to a certain political philosophy, but were disappointed when the nominee ended up ruling, not based on ideology, but on the Constitution. Many of these justices, on the left and the right, made rulings that flew in the face of their own political philosophies because their duty to the Constitution and the rule of law demanded it. They had no agenda, other than to interpret the Constitution as fairly and appropriately as they could in the times in which they lived.
Is Judge Gorsuch such an individual? Can he see beyond his partisan political views in order to do his duty to the Constitution and the country? This is what the Senate should be determining.
But Congress remains too mired in ideology and partisan political agendas, particularly the Republicans, to do their duty to the country and the Constitution. Will it ever be so? Or will we, the people, do something to change that?
38
Bork's arithmetic of rights is that of white male supremacy. When women, people of color, and now LGBT folks gain equal rights, some privileged white men feel that they have lost something they are entitled to have: power over others.
5
Linda Greenhouse is a national treasure. A treasure that seems somewhat invisble to those who need it most. I am moved every time I read one of her pieces, because of its careful and unwavering attention to the logic, the semantics, and the human hopes (and the errors of hope) that she pays.
Since the Donald has once again gone off on a judge who ruled against his travel ban, I trust that Senators (Republicans as well as Democrats) will ask Gorsuch his views on the public trashing of the third co-equal branch of government by the head of a different branch. That question will not ask him to say how he'd rule on a future Supreme Court case, but it would show whether he has the courage of his convictions to say publicly what he has previously said privately -- that such actions are damaging to our whole system of government.
3
What Miss greenhouse and other alt-left Democrats are avoiding, are the very biased remarks made by Ruth Bader Ginsberg, and Sonya SotoMayor, both of whom should resign from the Supreme Court. The outcome of any Scotus cases regarding gender inequality, or EOs issued by president Trump, have already been decided by these two publicly, according to their interviews with various media. Republicans should demand the resignation
3
I appreciated reading Ms. Greenhouse's cogent and utilitarian piece after first suppressing the bile that accompanies the realization that McConnell and his bloc of mala fide ideologues successfully destroyed another essential piece of our constitutional foundation. In fact, McConnell's position seems much like that taken by Thomas and Alito: it's done, move on.
4
The decision by Justices Thomas and Alito strikes me as an example of the bureaucratic mindset in operation. For these two judges, the only issue in the case centered on the procedural rule established by precedent. Whether the rule inhibited or advanced justice didn't interest them. They asserted that society had an interest in achieving 'finality' in criminal cases. It didn't occur to them that no one should accept finality until justice has been served.
1
I'm hoping that all Democratic Senators vote no on the Gorsuch nomination as a way to show their disgust with the way Republicans sandbagged the Garland choice.
The Senate has very few specific functions or duties spelled out in the Constitution. But one duty is unmistakable: they must confirm or deny nominees to the Supreme Court. The Republicans, under the despicable leadership of Mitch McConnell, violated their oath of office to review Garland's nomination. It will forever be a blot on the GOP's increasingly extreme ideology, and just as an eminent jurist was ignored, so should this jurist be rejected.
The Senate has very few specific functions or duties spelled out in the Constitution. But one duty is unmistakable: they must confirm or deny nominees to the Supreme Court. The Republicans, under the despicable leadership of Mitch McConnell, violated their oath of office to review Garland's nomination. It will forever be a blot on the GOP's increasingly extreme ideology, and just as an eminent jurist was ignored, so should this jurist be rejected.
7
The Constitution does not say that the Senate must confirm or deny nominees to the Supreme Court; it says that the President, "by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . ." The Senate may withhold consent, and doing so is not without precedent, as many have argued; the Senate filibustered Johnson's nomination of Abe Fortas for Chief Justice and refused to give him an up or down vote.
2
There are there are some good ideas here for eliciting Judge Gorsuch's positions on various topics, but no such conversations ought to occur before resolving the Merrick Garland issue.
That is not going away.
That is not going away.
4
The problem with Bork all the time was not with his logic, it was always with his inability to be human, to be willing to manifest the least shred of empathy. You are right that questioning any federal court nominee (well, maybe not the Customs Court, but maybe even that) on how s/he would have decided a past and settled case would be instructive. While no judge should make the law--a burden reserved to legislators--there can be leeway in applying it. It is the degree of leeway, or not, that speaks for a judge's humanity, or lack thereof.
2
You suggest saving "Democrats' fire for the big battles ahead." Approving the Gorsuch nomination would reward and normalize the GOP's refusal to consider the Garland nomination. That would further entrench the GOP's "no compromise" posture that has dragged down our democracy in recent years. Further, Trump is not even a plurality president. His meager electoral achievement of receiving about 46% of the vote doesn't give him a mandate. Let him nominate a jurist for the Court who would be broadly acceptable to the 54% who voted against him. Then the Democrats would have a nominee they could approve while promoting comity in Congress without suborning the GOP's brass knuckles.
3
Ms. Greenhouse,
Judge Gorshuch has been confirmed in the past and will be confirmed again. The Supreme Court will move in a direction you don't favor for at least the next generation. Likely one or two more vacancies will occur over the next several years increasing that likelihood.
The time to ask questions and demand answers was during your party's primary campaign for President. Rather than do that a concerted effort was made to predetermine the outcome of the process and suppress the asking and answering of difficult questions.
How that worked is now history. You lost from bottom to top and the Supreme Court will magnify that loss over a generation to come.
Your advice is good but late! Next time offer it before the election!
Judge Gorshuch has been confirmed in the past and will be confirmed again. The Supreme Court will move in a direction you don't favor for at least the next generation. Likely one or two more vacancies will occur over the next several years increasing that likelihood.
The time to ask questions and demand answers was during your party's primary campaign for President. Rather than do that a concerted effort was made to predetermine the outcome of the process and suppress the asking and answering of difficult questions.
How that worked is now history. You lost from bottom to top and the Supreme Court will magnify that loss over a generation to come.
Your advice is good but late! Next time offer it before the election!
3
Interesting position of Bork's that one person's constitutional rights always diminish someone else's. This is essentially the same argument that slaveholders made under threat of abolition, that their own freedom was under attack at the suggestion that under our constitution slaves also ought to be free. It is a dangerous position which can only lead to bad outcomes.
4
Here is a much simpler question for Judge Gorsuch, testing the depth of his devotion to the Constitution. Do you believe that it is constitutional for Senators explicitly to refuse to provide advice and consent regarding a President's nominee to the Supreme Court, thereby preventing the appointment from going through?
6
He should not be confirmed. Why? Simply because Republicans in Congress refused for months to even consider Obama's nominee for the position. Democrats should do all possible to derail this man and any other nominee of Faux-President Frump. My assumption: anyone nominated by FPF must by definition be unworthy of the job.
7
I have great respect for Linda Greenhouse.
But I would differ with her in respect to the vacant seat due to the constitutional dereliction of Republicans to consider and hold hearings and a vote on Judge Garland.
Democrats must learn to fight back and not acquiesce for the good of democracy and the country.
Judge Gorsuch should be denied a seat on the Supreme Court, as well as any other nominations by Trump, until such time when Judge Garland is given a fair and constitutional hearing and vote.
But I would differ with her in respect to the vacant seat due to the constitutional dereliction of Republicans to consider and hold hearings and a vote on Judge Garland.
Democrats must learn to fight back and not acquiesce for the good of democracy and the country.
Judge Gorsuch should be denied a seat on the Supreme Court, as well as any other nominations by Trump, until such time when Judge Garland is given a fair and constitutional hearing and vote.
9
I have long suspected that some defense attorneys deliberately screw up a trial they know they can't win in order to lay the groundwork for the defendant to file an appeal based on incompetent council. Given that it was the defense that called the racist psychologist to testify in this case, my theory looks quite true.
2
Here is a dangerous precedent if Buck isn't overturned.
Take a future purely hypothetical case where the evidence proves that a defendant has shot his former girlfriend to death in front of her children, killed a male friend of hers and wounded his stepsister.
Seeing that their client doesn't have a case, defense counsel or a defense witness resorts to the tactic of bringing up the client's race. Immediately (this is America) everyone becomes stupid. The case is no longer about the defendant's guilt -- it now becomes America's favorite pastime, race-blaming.
Defense counsel has made a mockery of the law -- and gotten away with it! To which Greenhouse replies, "Amen!" Evidently, if you oppose the death penalty, any argument will suffice, no matter how trumped up or bogus.
Take a future purely hypothetical case where the evidence proves that a defendant has shot his former girlfriend to death in front of her children, killed a male friend of hers and wounded his stepsister.
Seeing that their client doesn't have a case, defense counsel or a defense witness resorts to the tactic of bringing up the client's race. Immediately (this is America) everyone becomes stupid. The case is no longer about the defendant's guilt -- it now becomes America's favorite pastime, race-blaming.
Defense counsel has made a mockery of the law -- and gotten away with it! To which Greenhouse replies, "Amen!" Evidently, if you oppose the death penalty, any argument will suffice, no matter how trumped up or bogus.
2
Gorsuch must be opposed not on qualification terms, but on legitimacy terms.
Faith in the impartiality of our judicial system will not survive the stealing of a Supreme Court seat. Every decision in which a Justice Gorsuch participates will be an illegitimate decision, reached by a kangaroo court.
Faith in the impartiality of our judicial system will not survive the stealing of a Supreme Court seat. Every decision in which a Justice Gorsuch participates will be an illegitimate decision, reached by a kangaroo court.
8
Fun fact: Gorsuch himself is on the record criticizing the Senate's unfair treatment of Garland's federal bench appointment.
Gorsuch, if he is such a plain language constitutionalist, should do the moral thing and decline the President's nomination. History would look very kindly on him for taking such a courageous stand in what is surely to be remembered as one of the darkest ages in modern American government.
Gorsuch, if he is such a plain language constitutionalist, should do the moral thing and decline the President's nomination. History would look very kindly on him for taking such a courageous stand in what is surely to be remembered as one of the darkest ages in modern American government.
8
A little known historical fact. It wasn't until 1954 that a Supreme Court nominee even appeared in person before a Congressional Committee considering their appointment to the Supreme Court! In the old days, it simply wasn't considered necessary and it was considered to be too undignified and to lead to too much of a public circus for the entire committee to interview the candidate publicly. The nominee met personally with individual committee members to answer any questions they had. Too bad that was abandoned.
27
My greatest concern is that we are putting yet another white, Roman Catholic, wealthy scion on the Court, one who has received a thoroughly elite Catholic education, including Jesuit training in the most exclusive Catholic prep school in the country. Do not underestimate the power of the Catholic narrative to shape how Judge Gorsuch will see the world when it comes to women's healthcare, birth control, abortion, racism and a host of other issues, especially in the absence of any real struggle with poverty or service to the suffering that might add a degree of compassion to his worldview. He will be yet another Supreme Court Justice who has no experience in common with most American citizens.
4
Gorsuch is an Episcopalian, though it's unclear why his religion means he has no experience in common with most American citizens.
2
Greenhouse is right in mentioning that the Republican usurping of the Supreme Court seat was a travesty, but it is separate from determining if Judge Gorsuch is qualified.
Judge Garland is qualified too. Politics prevented his nomination, not qualifications.
We are going to get a conservative Justice. Mitch McConnell created a new precedent (one which will backfire on the GOP sometime in the future) which assured that.
So our only question is how to get the fairest, most qualified conservative Justice. And that probably will be politics, too, despite Linda Greenhouse's excellent recommendation in determining how a Justice considers justice.
Judge Garland is qualified too. Politics prevented his nomination, not qualifications.
We are going to get a conservative Justice. Mitch McConnell created a new precedent (one which will backfire on the GOP sometime in the future) which assured that.
So our only question is how to get the fairest, most qualified conservative Justice. And that probably will be politics, too, despite Linda Greenhouse's excellent recommendation in determining how a Justice considers justice.
Judge Gorsuch is first and foremost, an appointee of the president. Who, in wisdom grossly lacking his predecessor, has already informally sought, and received, highly positive affirmation of Judge Gorsuch from the Senate.
In other words, Gorsuch has already gotten past all material hurdles in the way of establishing competence for the job. Including the dreaded one-to-one breakfast at the Senate cafeteria, asking a nominee to please just go.
What's left now, are merely procedural matters. More specifically, Judge Goruch's willingness to be subject to, what everyone already knows, fishing expeditions of the Greenhouse and Franken variety.
To which the best and obvious advice is, as little as possible, something the good Judge has adhered-to admirably to date.
Questions on how he would have ruled on this, that and the other are no doubt of interest, but only when he publishes his memoirs some 30 years from now.
Maybe that's how JG should answer these mundane questions if they come up now: "Senator, I'll be happy to include you in the limited-edition, personally-autographed version of my memoirs stated to be released in 2050 which will covers these questions in-depth. Please dispatch the introductory price of $99.99 to my PayPal account, or, if you like, $299.99 for the in-person release, cocktails and hors d'oeuvres included, at Trump Hotel, Wash D.C.".
In other words, Gorsuch has already gotten past all material hurdles in the way of establishing competence for the job. Including the dreaded one-to-one breakfast at the Senate cafeteria, asking a nominee to please just go.
What's left now, are merely procedural matters. More specifically, Judge Goruch's willingness to be subject to, what everyone already knows, fishing expeditions of the Greenhouse and Franken variety.
To which the best and obvious advice is, as little as possible, something the good Judge has adhered-to admirably to date.
Questions on how he would have ruled on this, that and the other are no doubt of interest, but only when he publishes his memoirs some 30 years from now.
Maybe that's how JG should answer these mundane questions if they come up now: "Senator, I'll be happy to include you in the limited-edition, personally-autographed version of my memoirs stated to be released in 2050 which will covers these questions in-depth. Please dispatch the introductory price of $99.99 to my PayPal account, or, if you like, $299.99 for the in-person release, cocktails and hors d'oeuvres included, at Trump Hotel, Wash D.C.".
2
Thank you for the clear explanation of the case. The zero sum ideology has especially been used by opponents of same-sex marriage. They repeatedly argue that allowing same-sex couples to marry will somehow destroy traditional marriages, thereby taking something from opposite-sex couples. Hence the Defense of Marriage Act. It may also be seen in the legislation repealing Obamacare. Because Obamacare increased taxes on the wealthy to fund some of its benefits, it could be seen by those who seek its repeal as harming those taxed to help other, favored citizens. I hope Judge Gorsuch doesn't adhere to that ideology and I hope at least one senator reads this column and asks Judge Gorsuch about the issues raised.
2
This case is too complicated for political theater, which is what the hearings really are all about.
I have a question: when and why did it become unacceptable to ask hypothetical questions, in vague terms, about issues or personal opinions just because very detailed and probably different (in the details) cases will come before the judge in the future? Just sounds dodgy to me. I think the Dems should press the questions, and if they refuse to answer, ask for contempt of Congress ruling.
I have a question: when and why did it become unacceptable to ask hypothetical questions, in vague terms, about issues or personal opinions just because very detailed and probably different (in the details) cases will come before the judge in the future? Just sounds dodgy to me. I think the Dems should press the questions, and if they refuse to answer, ask for contempt of Congress ruling.
2
This seat is why Trump was elected. The left has lost their grip on reality when it comes to socialism, open borders, political correctness and a radical social experiment. The quicker liberals see this then the quicker this partisan, take no prisoners form of governments can stop. Obama and his Executive Orders force fed to the opposition with comments such as "Elections have consequences..." created the government in charge now. So it is really up to the left whether or not they want to continue denigrating those that booted them out on their butts during the last few elections or whether they would like to hold negotiations with conservatives on compromise once Trump is out of office. Trump was elected to blow up the status quo and he is doing a good job. But if the left continues to be demanding and unbending, such as a pro life woman is not woman enough to even participate in the "Woman's March'" then liberals will continue to be on the outside looking in.
1
The Supreme Court can manage with eight members a little longer; hearings on the Gorsuch nomination should wait until the extent of Russian interference in the 2016 election is determined and we know whether Trump and/or his campaign staff colluded with Russia to influence the election.
If there was coordination between the Trump campaign and Russian agents--which is at present unclear, although there were more than 150 contacts--Trump and his presidency are tainted and none of his nominees for office can stand. A Supreme Court appointment is for life; a justice can only be removed for his/her own crimes or misdemeanors. We cannot seat a Trump appointee until we are certain of the legitimacy of the president.
If there was coordination between the Trump campaign and Russian agents--which is at present unclear, although there were more than 150 contacts--Trump and his presidency are tainted and none of his nominees for office can stand. A Supreme Court appointment is for life; a justice can only be removed for his/her own crimes or misdemeanors. We cannot seat a Trump appointee until we are certain of the legitimacy of the president.
8
Judge Garland should now be seated on SCOTUS, and was denied through McConnell's bad faith obstruction of the Senate's constitutional duties. And now the evidence is becoming abundantly clear that the election of Donald Trump was caused by a felonious conspiracy between the Trump campaign and Russian intelligence agents. Senate Democrats should not waste time fashioning adroit questions such as that presented by Ms. Greenhouse, but rather should simply charge openly that all appointments and actions by Trump are prime facie illegitmate and must await the conclusion of a proper investigation of the greatest criminal conspiracy in the history of our presidential elections.
3
The investigating authorities have repeatedly declared that there is zero evidence that Trump conspired with the Russians to elect him. It's only a reality in the fevered minds of the rationality-challenged left. But we know that Trump's phone conversations were leaked, and that corrupt Obama has a history of illegally surveiling friends and enemies (e.g., Merkle, James Rosen and other reporters). So it's more likely than not that he illegally 'tapped' Trump's campaign, perhaps outside procedures that leave footprints. I would put nothing beyond the range of Obama's totalitarian impulses.
And your Garland whine holds no water. Harry Reed blocked multiple ambush nominees to the important D.C. Circuit, including Latino heavyweight Miguel Estrada. Then Reed trashed the right of zrepubs to block Obama's appointments, and quickly stacked that court and others with leftist flunkies. So Garland, who would have been a predictable liberal vote, was proper payback. I laugh at Progressives who overturned tradition re judicial appointments now whining that Republicans are evil for doing the same re the Supremes. It's goose, gander, crybabies. Pure, luscious karma.
And your Garland whine holds no water. Harry Reed blocked multiple ambush nominees to the important D.C. Circuit, including Latino heavyweight Miguel Estrada. Then Reed trashed the right of zrepubs to block Obama's appointments, and quickly stacked that court and others with leftist flunkies. So Garland, who would have been a predictable liberal vote, was proper payback. I laugh at Progressives who overturned tradition re judicial appointments now whining that Republicans are evil for doing the same re the Supremes. It's goose, gander, crybabies. Pure, luscious karma.
4
Robert Bork's fatal flaw vis-a-vis his confirmation hearing was an excess of candor. His personality made him averse to the type of weasel-wording testimony that likely would have got him confirmed. As I am reluctant to speak on fact issues in absolute terms my answer to the zero-sum question would have been that in most or many cases the addition of rights to one group subtracts from the rights of another. The nationwide right to same-sex marriage, of which I am in favor, is currently and will be resulting in the forced provision of services by people who have sincerely held religious beliefs that a marriage can only occur between a man and a woman. That is certainly a subtraction from their cumulative constitutional rights. Bork would have been a competent if not excellent justice despite his disfavor among the liberal class.
2
I don't believe that the drafters of the constitution anticipated the current "originalist" school of constitutional interpretation. They would be shocked at the perversion of their work used to justify the undermining the very tenets of the document they drafted. It is funny that the the declaration of independence and the constitution was a response to the ternary of the the the British yet the ultra orthodox constitutionalism main objective is to erode the basic rights and freedoms that are the basis of our country.
I think Gorsuch said best:
“The illegal we do immediately. The unconstitutional takes a little longer”
I think Gorsuch said best:
“The illegal we do immediately. The unconstitutional takes a little longer”
2
While I have the greatest respect for Greenhouse, I am not sure I would permit any justice to be appointed and approved until Merrick is seated. The "adult" response of Greenhouse is a problem when dealing with children like the GOP as a whole. They destroyed any sense of logic or fairness in not considering Merrick. Further, the next likely justice to step down is a liberal, which means this action will lead to a very conservative Court when the existing Court is well out of touch with reality and has been so for two generations because of the un-adult actions of the GOP. We can't impeach Thomas for incompetence, but he will remain on the Court for years.
If the Court declines to 7 or 6 members so be it. Nine is not a special number and other numbers have existed at different times. I would also point out that even if Trump is not implicated in an election scandal with Russia, the fact that he lost the majority of the votes quite handily (>2% & nearly 3 million votes) makes his extreme/conservative judicial picks much less legitimate than if he had won at least a plurality. Also, the problems associated with a shortage of justices & judges is directly the result of the most uncooperative opposition party since Roosevelt.
It would do the country good to tie this up until the mid-term election when either Trump will prevail giving him the patina of legitimacy or he will fail and the question may be about who will preside over his impeachment.
If the Court declines to 7 or 6 members so be it. Nine is not a special number and other numbers have existed at different times. I would also point out that even if Trump is not implicated in an election scandal with Russia, the fact that he lost the majority of the votes quite handily (>2% & nearly 3 million votes) makes his extreme/conservative judicial picks much less legitimate than if he had won at least a plurality. Also, the problems associated with a shortage of justices & judges is directly the result of the most uncooperative opposition party since Roosevelt.
It would do the country good to tie this up until the mid-term election when either Trump will prevail giving him the patina of legitimacy or he will fail and the question may be about who will preside over his impeachment.
6
The examples Ms. Greenhouse cites to refute Judge Bork's zero-sum approach to Constitutional rights generally do not fit into a binary classification. No one loses when steps are taken to ensure that everyone is treated equal without regard to immutable characteristics. Marriage equality may stoke the religious groups, but adopting certain religious beliefs is a voluntary action, so it is disingenuous to suggest that allowing same sex marriage takes away the constitutional right of others uninvolved in that contract. But, Judge Bork's theory is probably valid where the rights are a question of degree. For example, when Fred Phelps/Westboro Church decided to verbally assault the grieving family of a deceased soldier, the court ruled 8-1 that the First Amendment trumped the right to be free from intentional infliction of emotional distress. Various Second Amendment cases provide a good example of zero-sum math - by restricting what some view as unfettered rights to posses military-grade firearms, there is probably a corresponding improvement in general community safety. The question I would ask Judge Gorsuch is twofold: 1) Does being an originalist mean that we are confined to the text of the Constitution and what those words meant at that time (If yes, the NRA becomes the National Arms Association with annual musket conventions); and 2) If we are allowed to go beyond that period in time to discern intent, what are the rules of the game and your source for those rules?
7
Why must our Supreme Court Justice nominees receive an imprimatur from the Federalist Society, financed by Koch brothers instead of the traditional American Bar Association, which is better qualified to judge a candidate's professional qualifications and judicial temperament, and has much broader political representation?
"Originalism" is not a conservative judicial concept. It was first promulgated by right wing funders in the 1980's.
Unfortunately, questioning candidates for their views on past Court decisions may not predict their future behavior. Anyone remember "Stare decisis?"
"Originalism" is not a conservative judicial concept. It was first promulgated by right wing funders in the 1980's.
Unfortunately, questioning candidates for their views on past Court decisions may not predict their future behavior. Anyone remember "Stare decisis?"
4
"Undocumented immigrants have to be carted away while dropping their children off at school because their very presence among us, tolerated (and exploited) for decades, is deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut."
A good op-ed marred by more mindlessly pro-open borders rhetoric.
Ms. Greenhouse, what of the transfer of half a trillion dollars annually from low wage American and immigrant workers to business owners that is enabled by the oversupply of cheap, easily exploitable immigrant labor? (The oversupply of cheap labor allows the business owners to reduce wages. Meat packing has gone from paying union wages to paying minimum wage in a generation.)
And Ms.Greenhouse, do you have any idea whether the current population of the US is environmentally sustainable? You realize that our country uses more resources per capita, and emits more greenhouse gases per capita than any other major industrialized nation? That when people move from a third world country to a first world country their greenhouse emissions skyrocket? And that global warming is going to make the US a lot less environmentally sustainable?
A good op-ed marred by more mindlessly pro-open borders rhetoric.
Ms. Greenhouse, what of the transfer of half a trillion dollars annually from low wage American and immigrant workers to business owners that is enabled by the oversupply of cheap, easily exploitable immigrant labor? (The oversupply of cheap labor allows the business owners to reduce wages. Meat packing has gone from paying union wages to paying minimum wage in a generation.)
And Ms.Greenhouse, do you have any idea whether the current population of the US is environmentally sustainable? You realize that our country uses more resources per capita, and emits more greenhouse gases per capita than any other major industrialized nation? That when people move from a third world country to a first world country their greenhouse emissions skyrocket? And that global warming is going to make the US a lot less environmentally sustainable?
2
Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
Thomas Thompson and Thomas Goldstein were convicted of murder in separate cases as a result of prosecutor use of a jailhouse informant, Edward Floyd Fink, who testified at both murder trials that the defendant in each case had confessed the murder to him while in jail awaiting trial. In both cases the prosecutor argued to the jury that Fink had nothing to gain by his testimony to the jury. However, in both cases, Goldstein in 1980 and Thompson in 1983, Fink was released from jail by the courts at the behest of the same prosecutors after trial.
Both cases came before the U. S. Supreme Court. On a five-to-four decision in 1998, Thompson's death penalty was reinstated after the federal Ninth Circuit Court vacated California's order of execution for Sixth and Fourteenth Amendments constitutional violations. Thompson was executed on July 14, 1998. Thomas Goldstein was able to file his first habeas corpus appeal in federal court with the government witness impeaching "Brady" evidence against Fink uncovered by Thompson's appellate attorneys. Thomas Goldstein was released after serving 24 years and filed a section 1983 action against administrative prosecutors. A unanimous 2009 Supreme Court ruled that administrative prosecutors are immune from liability for section 1983 violations of a defendant's right to a fair trial.
Thomas Thompson and Thomas Goldstein were convicted of murder in separate cases as a result of prosecutor use of a jailhouse informant, Edward Floyd Fink, who testified at both murder trials that the defendant in each case had confessed the murder to him while in jail awaiting trial. In both cases the prosecutor argued to the jury that Fink had nothing to gain by his testimony to the jury. However, in both cases, Goldstein in 1980 and Thompson in 1983, Fink was released from jail by the courts at the behest of the same prosecutors after trial.
Both cases came before the U. S. Supreme Court. On a five-to-four decision in 1998, Thompson's death penalty was reinstated after the federal Ninth Circuit Court vacated California's order of execution for Sixth and Fourteenth Amendments constitutional violations. Thompson was executed on July 14, 1998. Thomas Goldstein was able to file his first habeas corpus appeal in federal court with the government witness impeaching "Brady" evidence against Fink uncovered by Thompson's appellate attorneys. Thomas Goldstein was released after serving 24 years and filed a section 1983 action against administrative prosecutors. A unanimous 2009 Supreme Court ruled that administrative prosecutors are immune from liability for section 1983 violations of a defendant's right to a fair trial.
1
Thank you, always interesting thoughts, some even transcendental when we consider our pettiness in settling, or resolving, a matter of justice when our 'wise men/women' in the Court may act, instinctively, on partisan molds, potentially prostituting the truth for ulterior motives. We humans, it must be remembered, are all corruptible, depending not necessarily in a clouding of our conscience by a shielded/privileged life, but on the price we may be willing to sell ourselves. In Gorsuch's case, it is not a matter of impossibly hard expectations of perfection, it has to do with an open mind, flexible enough to see/hear an argument with no subconscious prejudices he may be unaware of...unless he makes a conscious effort, and further education, and a humble attitude (given our profound ignorance) in giving his hopefully wise opinion. In the case you mentioned (Buck's), there was clearly a racial bias (which, curiously enough, was promoted by Clarence Thomas, a strange if incomprehensible judge in the Supreme Court). That we are still upset at the sheer injustice of denying Obama's right, and obligation, to nominate a highly respected judge (Garland), is an understatement, a shame McConnell will carry until his dying days (and politically speaking, not soon enough). But I digress. Judge Gorsuch deserves tough questioning...so he won't be tempted to confuse freedom with license.
1
The hearing process has always been a severely limited exercise for judicial appointees because they can decline to answer questions about how they would rule on specific fact scenarios even if the candidate gives some indication of his or her general position on certain legal issues or his/her legal philosophies. Part of that has to do with the fact the nominee may not have made up his/her mind, variances in facts from one case to another and because judicial impartiality demands one hear all material facts before ruling, and also because an appellate judge may bend somewhat to his fellows for the sake of institutional reputation and solidarity.
Barring something truly shocking, this is done and Gorsuch has probably already taken delivery of his new judicial robes. Gorsuch looks like a cool customer and I don't see him screwing up at the hearing or being taken by surprise by the potatoes on the senate judiciary committee. In fact, he is do smooth and looks so good on the tube that he will make senators attacking him look like ankle-biting muppets. The U.S. Supreme Court, which has always been a political body, is too important an objective to capture, and if need be conservatives will bust the filibuster like a piece of plastic police tape.
Barring something truly shocking, this is done and Gorsuch has probably already taken delivery of his new judicial robes. Gorsuch looks like a cool customer and I don't see him screwing up at the hearing or being taken by surprise by the potatoes on the senate judiciary committee. In fact, he is do smooth and looks so good on the tube that he will make senators attacking him look like ankle-biting muppets. The U.S. Supreme Court, which has always been a political body, is too important an objective to capture, and if need be conservatives will bust the filibuster like a piece of plastic police tape.
2
Judge Bork's theory ignored the traditional judicial distinction between rights and duties. A right is an interest that the law protects from invasion by others, such as the interest to be free from being singled out by government on the basis of what you say or think; what religion you believe in; who you associate with; or who you love. A duty is an obligation you have that the law enforces; you must obey traffic signals; and government officials have an obligation not to violate the provisions of the United States Constitution in carrying out their official duties. When a court rules that a person has a right to be free from government interference in what they say or think or believe, that ruling does not diminish any right that the rest of us, through the government, have in restricting what that person says, thinks or believes. Government has an obligation to protect society from the harms that specific human activity may bring about. But there has to be some sort of reasoned connection between what the person has done and the harm that the government has a right to prevent. The government is not the king with unlimited authority. Only then would protecting a person from the exercise of government authority actually lessen that government authority.
4
The original concept of the Supreme Court is not what it became over the last 2 centuries. It has become a political machine and that is why both sides, Republicans and Democrats, misuse it for what it was supposed to be by avoiding their responsibility to create the laws. The sole purpose of the Supreme Court is to see if the applicable issue being contested is covered by the then current laws. It is not there to create laws! However, the limited educations of the legislative branch and the executive branch of our government is where the real problem lies. If those elected officials really wanted to take the responsibility for what they are paid they would always require the Supreme Court to simply verify the existence of an applicable law relating the then current issue and if it does not exist they in turn would go back to their constituents and require those who are really responsible for this nation, the voters, to decide what law they want to collectively support by a majority of themselves wherein the elected officials would then create the applicable law. Oh, one more thing. If we ever get back to this approach we need to modify the constitution so that it would take the support of 3/4 of the voters to create a law which could be not wanted by the other1/4 and not that silly 50.1% belief used today. This would definitely make the taxpayers remove most of those hypocrites who are currently holding office.
There may be no need to repeat in a plain sentence. Twice in a column for emphasis might be justified if reasonable when describing a flower show or a difficult concept. “Texas law at the time of Mr. Buck’s sentencing in 1995 made a prediction of ‘future dangerousness’ a necessary predicate for a death sentence,” is informative and informative. It might have been adequate to have said, Texas law at the time of Mr. Buck’s sentencing in 1995 made a prediction of “future dangerousness” necessary for a death sentence. Texas law required that without more. Making readers struggle requires a reason. This column introduces needless subtlety in one unexplained word, confusing one. The blazing clarity of the rest of the opinion gives rise to the issue.
If a "normal" time in the US can be said to exist, then Gorsuch is very likely qualified to sit on the Supreme Court. This is not a normal time. It is not a time to confirm Gorsuch's appointment merely to return the Court to nine members. We can do very well, thank you, with only eight. To argue that Democrats must play by the rules, while accepting that Republicans never have to, and that Trump is incapable of doing so, is naive and self-defeating beyond belief. Democrats should filibuster Gorsuch's appointment, dare the Republicans to eliminate it for Supreme Court nominations, and fight to the bitter end. They should say, after the nomination is pushed into 2018, "let the people decide".
29
Thank you, Ms. Greenhouse, for another informative article about how OUR court system works.
In regards to blocking the nomination of Mr. Gorsuch here is the real problem, "the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland...".
This is no time to be "reasonable". The Top 1% Global Financial Elite Robber Baron/ Radical Religion Good Old Boys' Party/ Corporate Cabal are trying to take over The United States of America - through their 40+ year financial coup in buying operatives at every level of OUR government, including OUR judicial system at every level but especially OUR United States Supreme Court, and they MUST be stopped. WE cannot allow them to get any more control of OUR lives with their hate-anger-fear-war-LIES, LIES, LIES plans.
NO. WE cannot allow them to appoint anyone to OUR United States Supreme Court and "hope" they will do what is right. They cannot be trusted.
In regards to blocking the nomination of Mr. Gorsuch here is the real problem, "the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland...".
This is no time to be "reasonable". The Top 1% Global Financial Elite Robber Baron/ Radical Religion Good Old Boys' Party/ Corporate Cabal are trying to take over The United States of America - through their 40+ year financial coup in buying operatives at every level of OUR government, including OUR judicial system at every level but especially OUR United States Supreme Court, and they MUST be stopped. WE cannot allow them to get any more control of OUR lives with their hate-anger-fear-war-LIES, LIES, LIES plans.
NO. WE cannot allow them to appoint anyone to OUR United States Supreme Court and "hope" they will do what is right. They cannot be trusted.
30
Well, is there a time to be UNreasonable? When has lack of reason got us anywhere? The idea that the opponents of Trump et al., must behave just like them strikes me as an unpromising policy. Will it force them to mend their ways? I don't think so.
2
Since Grouch claims to be an originalist, he should be asked about Edmond Randolph. Randolph was a member, maybe the chairman, of the Committee on Detail that was charged with putting into words the various resolutions of the Convention. Randolph stated that he formulated the resolutions in general rather then prescriptive terms because HE DIDN'T WANT TO TIE THE HANDS OF FUTURE GENERATIONS. The very writers of the Constitution didn't believe in original intention. Without considering Jeffersons's idea that the document should be revised periodically.
130
Frank:
So you are saying that we should be guided by Edmund Randolph's original intent?
So you are saying that we should be guided by Edmund Randolph's original intent?
2
The point is that he did not think that they had the answers for all eternity. Witness the number of amendments, including the Bill or Rights. Jefferson also didn't want people to think that they "owned" the Constitution.
1
"... deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut."
Oh shame on you, Ms. Greenhouse.
I'm not sure what river your ancestors crossed, or what fences and gates they streamed under, or who they paid off to bring them here, but...
My people followed the laws, and immigrated legally. They gave up their citizenships in foreign lands, and swore and oath. My father served his mandated military service in Texas. He worked, and waited until he could afford his children to take a wife and make babies with her, that he stayed here to raise, because he had followed the laws of this new land. He kept his faith, he taught his children his traditions, he overcame a poor live in the country, and was not their when his parents passed...
If we have the legal scholars discounting the people who come here to assimilate and to follow the rule of law, what have we? A grab for the goodies? A way of kicking other vulnerables off the ladder rungs above you, to seize their place for your own? No laws required?
Ms. Greenhouse, have you ever lived or raised your own child in poorer areas that include men released from prison? (Of course, this man Buck is serving a life sentence and his violence will be contained.) Do you think that some races are more inclined to violence in their populations, whatever the historical reasons?
You're a journalist, not a judge.
Mr. Goruch likely knows more than you, and will uphold the law
Oh shame on you, Ms. Greenhouse.
I'm not sure what river your ancestors crossed, or what fences and gates they streamed under, or who they paid off to bring them here, but...
My people followed the laws, and immigrated legally. They gave up their citizenships in foreign lands, and swore and oath. My father served his mandated military service in Texas. He worked, and waited until he could afford his children to take a wife and make babies with her, that he stayed here to raise, because he had followed the laws of this new land. He kept his faith, he taught his children his traditions, he overcame a poor live in the country, and was not their when his parents passed...
If we have the legal scholars discounting the people who come here to assimilate and to follow the rule of law, what have we? A grab for the goodies? A way of kicking other vulnerables off the ladder rungs above you, to seize their place for your own? No laws required?
Ms. Greenhouse, have you ever lived or raised your own child in poorer areas that include men released from prison? (Of course, this man Buck is serving a life sentence and his violence will be contained.) Do you think that some races are more inclined to violence in their populations, whatever the historical reasons?
You're a journalist, not a judge.
Mr. Goruch likely knows more than you, and will uphold the law
8
If we didn't send them to prison in the first place your point would be moot.
Legal immigration back in the old days consisted of basically showing up on a ship at Ellis Island, signing their name (or something close enough) and then disappearing into Manhattan. It was hardly extreme vetting.
1
Trump is, I believe, going to try something dramatic about the 2020 election, such as attempting to postpone it indefinitely due to impending fraud that only he can detect.
President Lincoln suspended habeas corpus, so there's precedent for laying the Constitution aside. Ask Goresuch about that.
President Lincoln suspended habeas corpus, so there's precedent for laying the Constitution aside. Ask Goresuch about that.
7
Yes, Charlie B, and that is why WE must bring a civil, class action lawsuit against him and the other Robber Barons/ Corporate Cabal who are trying to take over OUR government at every level and destroy democracy for their personal greed/gain. Claw back the wealth they have stolen in the last 40+ years of their financial coup against us and DEMAND a new election.
WE, too can suspend the Constitution. It's OUR United States of America.
WE, too can suspend the Constitution. It's OUR United States of America.
4
Lincoln only suspended habeas corpus because of the Civil War. Are you suggesting that President Trump might trigger (and even welcome) a Second Civil War so that he can follow suit?
1
That statement is just as ridiculous as the ones that said Obama was going to do the same thing instead of leaving.
3
The author lost all credibility when she said that Garland was better qualified than Gorsuch.
That is a blatant and obvious lie. That's the statement of a leftist.
That is a blatant and obvious lie. That's the statement of a leftist.
11
And just what are your qualifications to decide who is the more qualified judge? I doubt that you have a fraction of the judicial understanding or knowledge of the two judges backgrounds and legal history that the author has, so who are you to question her remark. At most, the author should have qualified her remark with, to the best of my knowledge and understanding of the two judges judicial history, Judge Garland is the more qualified.
2
"That's the statement of a leftist." is a 'blatant and obvious' example of the 'ad hominem' fallacy. (Using personal abuse as a substitute for argument.) Given your willingness to use this tactic, I don't think it can be clear to any of your readers how you are qualified to pronounce on anyone's legal qualifications or indeed anyone's 'credibility.'
2
Whether or not Garland is "better qualified" than Gorsuch is in the realm of judgment, not black or white fact. So it might be poor judgment, but it can't be "a lie".
Also, for the record, anyone to the political left of your own position isn't "a leftist". Trivializing struggles of the past by referring to people with political leanings somewhere around Gerald Ford as "socialists" just underscores how paranoid and dysfunctional our politics has become.
Also, for the record, anyone to the political left of your own position isn't "a leftist". Trivializing struggles of the past by referring to people with political leanings somewhere around Gerald Ford as "socialists" just underscores how paranoid and dysfunctional our politics has become.
3
Ms. Greenhouse, your opinion in matters such as this pending confirmation is such an appropriate 'amicus brief' that I am so thankful you have illustrated your point, which is, I believe to take this chance to let the witness hang or save himself. After your exquisite and not too long illustration of the inexplicable and irrational deductions that some justices seem to feel compelled to draw, almost as if...and they are not alone, they go on and on...their words exist for a stage not of this world. Who knows?
Perhaps the long arm of the law (and justice) does manage to rectify wrongs not confined to the court or the bench, but errors common to the ordinary person. Your beautiful conclusion showing the dialogue between Senator Simon and Judge Bork, whose rejection is today, in some hindsights, regarded as anything but bipartisan (certainly I was thrilled) lays the scenario whereby Judge Gorsuch, no lamb by anyone's reckoning, can defend his own narrow foundations, if there are indeed foundations to his thinking. Or is he conveniently operating inside a box with an ability to osmose through the walls and manipulate himself from the outside looking in? I suspect he does employ this hypocrisy.
Is it not appropriate to include another famous case whereby the point is made "The quality of mercy is not strain'd,: It droppeth as the gentle rain from heaven..." And insofar as so much of justice is not confined to the balance sheet, do we have a person for the Court or not?
Perhaps the long arm of the law (and justice) does manage to rectify wrongs not confined to the court or the bench, but errors common to the ordinary person. Your beautiful conclusion showing the dialogue between Senator Simon and Judge Bork, whose rejection is today, in some hindsights, regarded as anything but bipartisan (certainly I was thrilled) lays the scenario whereby Judge Gorsuch, no lamb by anyone's reckoning, can defend his own narrow foundations, if there are indeed foundations to his thinking. Or is he conveniently operating inside a box with an ability to osmose through the walls and manipulate himself from the outside looking in? I suspect he does employ this hypocrisy.
Is it not appropriate to include another famous case whereby the point is made "The quality of mercy is not strain'd,: It droppeth as the gentle rain from heaven..." And insofar as so much of justice is not confined to the balance sheet, do we have a person for the Court or not?
7
"Justice" Portia's oft-quoted dicta from the case of Shylock v. Antonio is totally inappropriate to the circumstances discussed in Ms. Greenhouse's article. A fake judge in disguise and hopelessly conflicted in interest by virtue of her relationship with the defendant's lawyer, she had no business in the case at all. And she decided it with bigotry toward the "Jew" Shylock. The words are nice, but the case itself betrays a shameful level of hypocrisy.
1
Procedure, hailed by attorneys as the sine qua non of judisprudence, has enslaved their minds, debased fact finding and transmogrified common sense into some tortured terminologies that cater to their obsessive identity fixations born of their own intellectual infancy. The guy was a vicious murderer, period. So long as there is capital punishment, there will be deserving offenders - like this one. Constant reheating eventually ruins the leftovers. This ridiculous parsing over every sentence that these law school lexicon lovers engage in only serve to deepen the public's sneering antipathy for the vocation. If the primamcy of Law is to remain the guiding principle of this broken republic, the practitioners had better understand the difference of judging, rather than legislating, statutes. Otherwise you face the prospect that the judiciary is just another ingredient in the political stew, worthy of no special claim and easily discarded as partisan. Smarten up judicial activists - the vocation you save may just be your own.
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Fairness is a fundamental requirement of just laws and governance. If the Texas law said future dangerousness is a key consideration for the death sentence, and the defendant was deemed dangerous because of the color of his skin, it was administered unfairly. The case for upholding the death sentence was hung on what the rest of us would term a technicality.
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Thank you for the background on this case, which is indeed fascinating. The suggestion that Senators question nominees about a settled case is sensible, and will be ignored by Senators and/or evaded by nominees. The important point, IMO, is that consideration of any Supreme Court nominee by Mr. Trump would be an acquiescence to & validation of the GOP's unilateral decision that only Republicans can now make such nominations. Any Senator who doesn't understand that is just playing a part in the corrupt political game, not fulfilling their consitutional obligation.
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He'll be as lousy as Scalia, proclaiming that whatever decision he reaches is always in the constitution.
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Linda mentioned Clarence Thomas. Once again I'm amazed at Thomas's inability to get passed the fact that he was admitted to Yale Law School through affirmative action. His continuing attempts to compensate for that self perceived insult, clouds his judicial lens and obstructs the search for "equal justice under law". Anytime that race or racism is at issue before the court, as in the Buck vs Davis case, he is seemingly hard wired to reject race as a dispositive factor. It's as if by denying that racism exists, he is attempting to expunge the concept of affirmative action, which he perceives as delegitimizing him.
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Eloquent and careful, as usual (apart from the presumably unintentional misprint "Bush" halfway through).
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I see Linda's point but as long as some people view expansion of a right for others as an infringement on theirs, Bork is right. In his Harvard commencement, Justice Souter pointed out that cases before the supreme court invariably involve the clash of 2 different constitutional rights.
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The problem comes, I think, in calling everything someone may legally do (or get away with) a "right", particularly when we clearly ascribe some fundamental virtue to the word as in "human rights". Perhaps it would be clearer to speak of "fundamental rights" as opposed to, for instance, the "right" to own another human being in pre-Civil War Alabama (a prerogative I don't believe many would consider a "right"). Perhaps clearer and more accurate to say that expanding one group's fundamental rights curtails someone else's prerogative.
It's certainly true, for instance, that allowing same-sex marriage hasn't infringed anyone else's fundamental rights (in the common sense of the word); but it certainly curtailed the prerogative of some to enjoy a sense of superiority over those formerly denied the right.
It's certainly true, for instance, that allowing same-sex marriage hasn't infringed anyone else's fundamental rights (in the common sense of the word); but it certainly curtailed the prerogative of some to enjoy a sense of superiority over those formerly denied the right.
i still cannot bring myself to moan the loss of alito. it was the single best thing he ever did in life. exiting when it was appropriate. thanks alito
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Do you mean Scalia? Alito is still with us.
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ummmmm....Alito is alive and well and admirably serving our country as a US Supreme Court Justice.
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Um, Alito is still alive and on the court. Perhaps you mean Scalia?
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Judge Bork expressed a theoretical purism in that colloquy with Simon. Professor Greenhouse (with Post and Siegel) is seeking to tease out more pragmatic and empirically based answers, which is a fine way to evaluate a candidate to the extent you can get a straight answer. But asking a nominee about someone else's case about which the nominee has not thought carefully seems like a poor way to get to the core of the nominee's judgment, especially when you have a record on hand. Consider the Hobby Lobby decision. Gorsuch voted with the majority there, but he also specially concurred to deal with a longstanding issue (since the Dartmouth College case way back when) about the interplay between corporations and the people associated with them. He also rooted his discussion in a very interesting observation that might give people confidence about his sensitivity to broader issues: "All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others." You might not like Gorsuch's deference to religious views of right and wrong, but you have to give him credit for putting it in a context that is applicable beyond religion, to issues of "complicity" that even snarky, secular SNL can appreciate (see the Ivanka perfume commercial parody last weekend). Here's the decision; go to page 78 of the PDF for Gorsuch's concurrence. https://www.ca10.uscourts.gov/opinions/12/12-6294.pdf
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Thank you for this article Linda Greenhouse. Its smart, insightful and its got soul. We'll need plenty of that to get through the next few years.
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David@ny makes an important point about Bork's nomination. Bork certainly had provocative legal and judicial opinions--Greenhouse gives an example-- which surely inclined some senators to advise against his confirmation. But even if Bork's outlook had been as middle-of-the-road as Garland or Gorsuch the political context would have made it controversial. A supply-side bonus for the Watergate hatchet man? A Supreme Court reward? Kind of insulting to Democratic Senators wouldn't you say? Maybe even to a few Republicans of that era. Post-Reagan Republicans who like to point to the original sin of the Bork rejection never mention this highly-charged Watergate dimension and Reagan's "original intent."
Now McConnell has created another equally obvious political insult around this
nomination. Justifying his refusal of hearings with an eerie pre-echo of Kellyanne Conway logic, which doesn't trump Groucho's. YouTube it: "The party of the first part...".
Now McConnell has created another equally obvious political insult around this
nomination. Justifying his refusal of hearings with an eerie pre-echo of Kellyanne Conway logic, which doesn't trump Groucho's. YouTube it: "The party of the first part...".
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As concerns the death penalty: fifteenth century Italian jurist Cesare Beccaria wrote that the death penalty is no deterrent. Have we learned anything in succeeding centuries? Adding racial prejudice to the mix merely underscores our ethics (or lack of "Christian" values).
Thomas and Alito are beneath contempt, the first as a racist, the second as a "prolifer." Check their histories.
Thomas and Alito are beneath contempt, the first as a racist, the second as a "prolifer." Check their histories.
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You can keep Beccaria. I'll take two of the luminous public philosophers of 19 century England -- Jeremy Bentham and John Stuart Mill, both of whom defended the death penalty on the grounds of its deterrent effect. If these (authentic) liberals are not to your taste, then try the great German philosopher, Immanuel Kant. He based his argument on the principle of retribution. And he argued that if society did not execute murderers it became complicit in their crime.
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It would be interesting to hear about a death penalty case, but I'd really like his take on the Titles of Nobility and Foreign Emoluments claus. Article 1, section 9, claus 8 says very firmly--no hereditary titles and no emoluments for the President.
Quite an exceptional claus actually as it is just about the only part of the constitution that limits what government and its officers can do. The Bill of Rights, with its many restrictions was a later addition, of course.
As a strict originalist, Judge Gorsuch ought to be able to tell us what an "emolument" is in today's terms, since there seems to be lack of clarity, and why the Framers felt strongly enough about this topic to forbid it very explicitly.
Quite an exceptional claus actually as it is just about the only part of the constitution that limits what government and its officers can do. The Bill of Rights, with its many restrictions was a later addition, of course.
As a strict originalist, Judge Gorsuch ought to be able to tell us what an "emolument" is in today's terms, since there seems to be lack of clarity, and why the Framers felt strongly enough about this topic to forbid it very explicitly.
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Ian:
A logician would call that a non sequitur. Just because laws should be enforced according to how they were understood when they were enacted doesn't mean every law is going to be a model of lucidity.
Some laws will be drafted so badly that they can't be enforced -- in which case they should be treated as inkblots, as Bork said of the Ninth Amendment.
A logician would call that a non sequitur. Just because laws should be enforced according to how they were understood when they were enacted doesn't mean every law is going to be a model of lucidity.
Some laws will be drafted so badly that they can't be enforced -- in which case they should be treated as inkblots, as Bork said of the Ninth Amendment.
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What a canard. That clause does not apply to the president. If it did, the Framers would have put in in Article II.
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If Judge Gorsuch is confirmed, he might have to tell later.
thanks for reminding me to call my senator today and request a complete filibuster of this nominee.
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The conversation about the "I win-you lose" belief system explains so much about Trump's and the GOP's current approach to what they consider governance. Especially the dominance of the "I win" factor in decision-making. If anyone benefits from a policy - such as the poor and disabled from the ACA - then, by definition, the rich and healthy must lose. Therefore, the ACA must be changed so the rich, including insurance company executives, gain.
I pity those who think life is zero-sum - I can only imagine the joyless fear and paranoia looming over every thought and activity. For the sake of all Americans, let's hope this country still believes as Senator Simon did, “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
I pity those who think life is zero-sum - I can only imagine the joyless fear and paranoia looming over every thought and activity. For the sake of all Americans, let's hope this country still believes as Senator Simon did, “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
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We always appreciate the erudition of Ms. Greenhouse :)
We'd also like to note how this case shows the even more extreme politics in Austin since Cornyn became U.S. Senator, and his successors have persisted in prosecuting the case.
We'd also like to note how this case shows the even more extreme politics in Austin since Cornyn became U.S. Senator, and his successors have persisted in prosecuting the case.
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Scary that Cornyn was the voice (or slightly on the side) of reason.
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Rich - You correctly perceive our point; a textbook case of how things are never so bad but what they can become materially worse, and pointing out the folly of those who do not ' Resist ' because they say it's better to just let DJT lead us into chaos, then Dems can pick up the pieces.
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As the primary historical purpose of our federal courts, including the U.S. Supreme Court, is to decide by an interpretation of the Constitution and our statutes who wins when two opposed interests collide, it seems to me that on the face of it Judge Bork was correct thirty years ago and Senator Simon was wrong. The notion that a judicial ruling is a “win” for people generally is an ideological conclusion depending on the holder’s agreement with the ruling. It has very little to do with law, or even with the purpose of the Court.
If Gorsuch has any sense, he’d probably reply to Linda’s question of “Whose side are you on?” by responding that he can see both sides. If he had as little to lose as I do, he’d probably respond to Linda the way I did, above.
If Gorsuch has any sense, he’d probably reply to Linda’s question of “Whose side are you on?” by responding that he can see both sides. If he had as little to lose as I do, he’d probably respond to Linda the way I did, above.
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How does making sure that a defendant's rights are protected mean that someone else loses.
If someone else's constitutional rights are protected then so are mine and Mr. Luettgen's and Robert Bork's.
The converse statement also applies.
If someone else's constitutional rights are protected then so are mine and Mr. Luettgen's and Robert Bork's.
The converse statement also applies.
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He'll respond as every GOP nominee responds: by lying.
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David,
The "How" in this case is the trail of death the defendant left behind over a personal relationship gone bad. Letting a defendant out to enter into other personal relationships with the inherent risk of more of the same is exactly like releasing mines into the ocean. It's a "big ocean" and what are the chances a ship will hit a mine. The answer everywhere except the justice system is there is no chance if you don't release the "mine". In the justice system "mines" too have rights. Having "rights" they are released all the time, not once but multiple times. To the "great surprise" of no one except Libertarians, ships hit them far too often.
Society and defendants both have rights. Defendants by their illegal actions forfeit those rights. It is wrong to release multiple murders and rapists back into society just as it is wrong to base the "potential for future violence" on solely the last of a series of crimes committed by a defendant.
What's afoot is an effort to release back into society defendants who have demonstrated a record of violence against society by ignoring that record and calling it "defendant's rights".
California has had 5 peace officers murdered in the last few months by such releases. Those dead officers, their families and society are the losers as are the defendants who were released to commit these crimes.
Everyone looses when multiple violent offenders are released like "mines" back into society in the name of "defendant's rights"
The "How" in this case is the trail of death the defendant left behind over a personal relationship gone bad. Letting a defendant out to enter into other personal relationships with the inherent risk of more of the same is exactly like releasing mines into the ocean. It's a "big ocean" and what are the chances a ship will hit a mine. The answer everywhere except the justice system is there is no chance if you don't release the "mine". In the justice system "mines" too have rights. Having "rights" they are released all the time, not once but multiple times. To the "great surprise" of no one except Libertarians, ships hit them far too often.
Society and defendants both have rights. Defendants by their illegal actions forfeit those rights. It is wrong to release multiple murders and rapists back into society just as it is wrong to base the "potential for future violence" on solely the last of a series of crimes committed by a defendant.
What's afoot is an effort to release back into society defendants who have demonstrated a record of violence against society by ignoring that record and calling it "defendant's rights".
California has had 5 peace officers murdered in the last few months by such releases. Those dead officers, their families and society are the losers as are the defendants who were released to commit these crimes.
Everyone looses when multiple violent offenders are released like "mines" back into society in the name of "defendant's rights"
3
I would offer Judge Gorsuch my utmost and profound respect, if he chooses to go through the hearings, gets the necessary votes (with enough Democrats voting for his qualifications) and then announcing that he will infact not take up the seat until or unless Judge Merrick Garland is at least given a hearing and a vote.
If he's voted down (on the merits), fine. Then let Judge Gorsuch take up the seat.
Otherwise, he will always be an illegitimate Justice. An asterisk in history.
If he's voted down (on the merits), fine. Then let Judge Gorsuch take up the seat.
Otherwise, he will always be an illegitimate Justice. An asterisk in history.
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The world will get over it, just like they did when Kennedy's people fixed the ballots in Illinois, giving him the election over Nixon.
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No, william. WE will not get over it - particularly over one-half the population who are female and under attack by the current, corrupt regime.
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william, don't you think such a controversial statement requires some real evidence rather than simply quoting a rumor.
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Regarding the death penalty case, your strategy wold likely prove futile. As you note, the case was mostly about procedural matters governing habeas petitions. Gorsuch would surely exhaust that subject, going on and on about arcane matters. The bottom line question about the death penalty would be one that he would surely duck as do all nominees these days.
As for whether he thinks there is zero sum justice, that was a good question for Bork, a law school professor. Appellate court judges are not terribly theoretical, and Gorsuch could rightfully claim that it is a matter outside his expertise.
Bottom line, for the last 20 years, Supreme Court nominees have been thoroughly trained on how to keep the conversation general and innocuous. And if you try to force an answer that is specific and material, you will fail. It's a totally inappropriate game. Judges are profoundly political and yet they purport to be legal technicians.
When you spar with a judge in order to get a frank response, their training comes into play and short of beating them over the head, there's nothing that can be done about it.
As for whether he thinks there is zero sum justice, that was a good question for Bork, a law school professor. Appellate court judges are not terribly theoretical, and Gorsuch could rightfully claim that it is a matter outside his expertise.
Bottom line, for the last 20 years, Supreme Court nominees have been thoroughly trained on how to keep the conversation general and innocuous. And if you try to force an answer that is specific and material, you will fail. It's a totally inappropriate game. Judges are profoundly political and yet they purport to be legal technicians.
When you spar with a judge in order to get a frank response, their training comes into play and short of beating them over the head, there's nothing that can be done about it.
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I hope some senators will read this excellent column. Too bad that the late Antonino Scalia did not read the Times, because he found it "too shrill." I suspect the careful Judge Gorsuch will, though.
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Even the most superficial examination of the Gorsuch biography reveals that his perspective is no of someone interested in the examination of truth or justice. Judge Gorsuch is equipped to be an inquisitor in Torquemada's Court. The dogma of might makes right is the the dogma that is the very foundation of Gorsuch's judicial philosophy.
I am proud that my country 's former Chief Justice of the Supreme Court was able to say the Supreme Court of Canada is there to establish justice not to interpret law.
The Supreme Court of the USA has little if any value in a real democracy as most of what it is a rubber stamp for the possessors of wealth and power.
Gorsuch's judicial decisions will not be deliberative and I would suggest that the reason he is a nominee for the Supreme Court is that 90%+ of his judicial decisions are already a foregone conclusion and that 100% of his decisions involving a dispute between an individual and a corporation are already decided.
I am proud that my country 's former Chief Justice of the Supreme Court was able to say the Supreme Court of Canada is there to establish justice not to interpret law.
The Supreme Court of the USA has little if any value in a real democracy as most of what it is a rubber stamp for the possessors of wealth and power.
Gorsuch's judicial decisions will not be deliberative and I would suggest that the reason he is a nominee for the Supreme Court is that 90%+ of his judicial decisions are already a foregone conclusion and that 100% of his decisions involving a dispute between an individual and a corporation are already decided.
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My comment is not in direct response to your column which is fine as far as it goes vis a vis the procedurals involved in questioning a nominee. I do, however, find it almost quaint that anyone can possibly think that the senior judicial system in America is anything other than an extension of politics. Scalia changed all that--one more thing that can be charged to his already lengthy rap sheet. He was appointed for one reason and one reason only: to be a proponent of right-wing ideology, and in this he did not disappoint his constituency. Gorsuch will be the same thing as will anyone Trump nominates. The law does not float majestically above the fray. The senior courtrooms are no more than political battlegrounds. I'm not sure it was ever any different, but it certainly is what we have now. Welcome to TrumpWorld!
Buy your copy of "The Art of the Deal" on the way in!
Buy your copy of "The Art of the Deal" on the way in!
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Justice John Marshall, in his acquittal of Aaron Burr on charges of treason and insurrection, faced down his own (distant)cousin, President Thomas Jefferson in doing so.
Tom, in his fit of pique, openly mused about disbanding the SCOTUS!
So, it was different at least once in history.
Tom, in his fit of pique, openly mused about disbanding the SCOTUS!
So, it was different at least once in history.
4
I am not a lawyer, thankfully. So, to me and most other "lay people" the Buck case is the excruciating slicing and dicing of the law that is incomprehensible, maddening and divorced from everyday reality.
Yes, we live in a complicated society. But how much of the complications are being foisted on us by a legal system, particularly the courts, that has become so alien that it is now more like a secular religion enmeshed in its own rituals, clouded in a fog of incomprehensible language and ruled over by its own caste including high priests and priestesses, aka the Supreme Court?
Face it - Buck is a violent murderer. So, this is not a case of an innocent man railroaded by a biased system. Therefore, whether he rots in jail all his life or is sent to the death chamber is of no consequence to most of society. That we are spending inordinate time and money on such a case is a damning instance of where the law is no longer serving the greater good of society. Instead, society has too often now become constrained and enslaved by its legal system.
Yes, we live in a complicated society. But how much of the complications are being foisted on us by a legal system, particularly the courts, that has become so alien that it is now more like a secular religion enmeshed in its own rituals, clouded in a fog of incomprehensible language and ruled over by its own caste including high priests and priestesses, aka the Supreme Court?
Face it - Buck is a violent murderer. So, this is not a case of an innocent man railroaded by a biased system. Therefore, whether he rots in jail all his life or is sent to the death chamber is of no consequence to most of society. That we are spending inordinate time and money on such a case is a damning instance of where the law is no longer serving the greater good of society. Instead, society has too often now become constrained and enslaved by its legal system.
13
I disagree. Whether he is executed or spends his life in jail is not a decision "of no consequence." It has to do with the role of capital punishment in our society, and the glaring fact that race has consistently played a big role in who gets executed. Those are big issues that manifest themselves in finer points of law. Thanks to Ms. Greenhouse for elaborating on it.
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"Instead, society has too often now become constrained and enslaved by its legal system."
Really? Not according to our constitution.
Really? Not according to our constitution.
10
Good point so why have a death penalty, it is much cheaper to keep someone in prison for life.
6
Robert Bork was not confirmed because he lacked judicial integrity.
When Watergate prosecutor Archibald Cox was closing in on Nixon's guilt, Nixon asked Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned.
Deputy Attorney General William Ruckelshaus refused to fire Cox and either resigned or was fired. Number 3 man in the Justice Department Robert Bork then agreed to fire Cox.
By that cowardly act Bork became part of the Watergate coverup and demonstrated he did not have the required integrity to be a Supreme Court justice.
The Senate acted appropriately in voting down Bork's nomination
I find the attitudes of Justices Thomas and Alito disgusting.
They believe that the death penalty is a deterrent.
[That comparison of crime rates in similar states with and without the death penalty show no significant difference is irrelevant to this discussion.]
In their eagerness to execute Thomas and Alito are willing to slight the rights of defendants they believe are guilty.
Perhaps many are guilty.
But once we make the type of unfortunate decisions that Thomas and Alito make we run the real risk of executing an innocent person.
Recall the Central Park 5. Everyone "knew" they were guilty. They confessed. If NYS had a death penalty and the jogger had died five INNOCENT youths would have been fried.
I think it is better that a vicious criminal be sentenced to life without parole and not executed so we do not risk executing an innocent person.
When Watergate prosecutor Archibald Cox was closing in on Nixon's guilt, Nixon asked Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned.
Deputy Attorney General William Ruckelshaus refused to fire Cox and either resigned or was fired. Number 3 man in the Justice Department Robert Bork then agreed to fire Cox.
By that cowardly act Bork became part of the Watergate coverup and demonstrated he did not have the required integrity to be a Supreme Court justice.
The Senate acted appropriately in voting down Bork's nomination
I find the attitudes of Justices Thomas and Alito disgusting.
They believe that the death penalty is a deterrent.
[That comparison of crime rates in similar states with and without the death penalty show no significant difference is irrelevant to this discussion.]
In their eagerness to execute Thomas and Alito are willing to slight the rights of defendants they believe are guilty.
Perhaps many are guilty.
But once we make the type of unfortunate decisions that Thomas and Alito make we run the real risk of executing an innocent person.
Recall the Central Park 5. Everyone "knew" they were guilty. They confessed. If NYS had a death penalty and the jogger had died five INNOCENT youths would have been fried.
I think it is better that a vicious criminal be sentenced to life without parole and not executed so we do not risk executing an innocent person.
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Excellent question Ms. Greenhouse and as usual a great teaching piece for the rest of us.
I hope that some Senator will simply ask Judge Gorsuch what it feels like to be nominated for a stolen seat.
I hope that some Senator will simply ask Judge Gorsuch what it feels like to be nominated for a stolen seat.
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But what good would that do, Mr. Leighty? Senators need to use real examples to show what he has done and ask him which money helped get him elected in the first place. This is no time to be reasonable and/or polite. OUR democracy is in grave danger and we cannot allow the current corrupt regime to appoint anyone to OUR U. S. Supreme Court.
5
I agree, Paul: I would also ask whether Gorsuch gave consideration to declining the nomination and recommending that Merrick Garland be the nominee instead. 3/16, 2:46 PM
3
ssking how a judge would decide a prior case is a neat idea.
However,Gorsuch will never give a straight answer. He is there
to lay waste to what we consider to be government.
He is there to finish the job his mother failed to do years ago.
However,Gorsuch will never give a straight answer. He is there
to lay waste to what we consider to be government.
He is there to finish the job his mother failed to do years ago.
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These guys all know the drill, ever since Bork, who had the temerity to actually tell the truth about his personality and beliefs, got, "Borked," all of them obfuscate to the point of making the hearings irrelevant.
Gorsuch, will put on an act like an Eagle Scout, and never say anything negative about anything. The goal is to never give anyone anything they can hang their hat on.
Of course, the glaring omission by Gorsuch, is that he is not Merrick Garland. The Dems, should do a "Trump", and bring in Judge Garland to ask Gorsuch if he agrees with how he, and the previous President, were treated by the Republicans.
Gorsuch, will put on an act like an Eagle Scout, and never say anything negative about anything. The goal is to never give anyone anything they can hang their hat on.
Of course, the glaring omission by Gorsuch, is that he is not Merrick Garland. The Dems, should do a "Trump", and bring in Judge Garland to ask Gorsuch if he agrees with how he, and the previous President, were treated by the Republicans.
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