Tuesday, April 11, 2017

More Such Gorsuch

With Neil Gorsuch confirmed, people are writing think pieces about what it'll mean for the Supreme Court.  The answer is not much, probably--at least so far as replacing Scalia.

Still, you get articles like this in The Hill with lines like

But some court watchers say Gorsuch may be even more conservative than Scalia, his mentor and fellow adherent to the originalist view of the Constitution.

The piece then goes on to offer almost no evidence beyond some slight hysteria.

The big argument for some is Gorsuch's view on Chevron deference.  They call Chevron a precedent "even" Scalia upheld, as if a court's level of deference to executive branch officials falls in a clear place along the liberal/'conservative spectrum.  In fact, in the Mead case, the eight-Justice majority limited Chevron deference with only Scalia dissenting.

Truth is, it'll be most unlikely if Gorsuch is somehow more "conservative" (a term neither he nor Scalia would use) than the man he's replacing.  Sure, if Justice Kennedy or even Roberts left, I could see some concern, but Scalia?

In fact, there are opinions Gorsuch wrote that suggest he has, at the very least, a "liberal" streak, and anyway, the general experience with "conservative" Justices is they get more "liberal" through the years.

No one knows how any Justice will turn out until they're on the Court.  If Gorsuch distinguishes himself, it'll likely be through his style and demeanor.  Scalia was reportedly well-liked by his colleagues, but his opinions, especially in dissent, were often caustic, suggesting he was not willing to compromise.

Perhaps Gorsuch will compromise.  What would this mean?  It could mean he'll draw more people to his side, which would mean more "conservative" victories, though they may be watered down. Or it could mean the opposite, where he'll be willing to join the "liberal" side, but in opinions that don't go as far as they would have otherwise.

It's true liberals lost huge when Gorsuch became Scalia's replacement, but that's no reason to exaggerate the damage.


Anonymous Denver Guy said...

The reason to "exaggerate" the damage is clearly political. Most Republicans I know in Colorado who voted for Trump listed the Supreme Court nomination as the number one reason for doing so. Of course, I hang out with a lot of lawyers.

There is no question that in 2018 and again in 2020, the Democrats will have as a rallying cry, save the S.Ct! I'm sure Ruth Bader Ginsburg will now be encouraged by all means to stay on the court as long as possible by Democrats. And Republicans may begin nudging Kennedy to consider retirement this coming summer.

I read on Monday an article at Jost on Justice which is the first time I've seen someone suggest that the politicization of S.Ct nominations began with Republicans and Nixon. http://jostonjustice.blogspot.com/2017/04/republicans-made-high-court-partisan.html

The article was not persuasive to me. Of course Nixon criticized rulings of the Warren Court in his campaigns, but he never argued for a litmus test for nominees. Jost essentially treats all Democrat nominations as middle of the road centrists, and tries to argue all Republican nomination have been rightists. He admits he can't explain David Souter.

On the one hand Politicization has always been part of the process - everyone used to accept that the President has the right and obligation to nominate judges who share his beliefs. But the decision to vote for or against a nominee entirely based on his or her political affiliation is a paradigm introduced by Ted Kennedy in the Bork nomination and only now perfected by Mitch McConnell.

9:22 AM, April 12, 2017  
Blogger LAGuy said...

Reagan was the first Republican President in modern times who really started paying attention to the politics (as we understand them today) of his judicial nominees.

Eisenhower, of course, put Earl Warren and William Brennan on the Court, among others. Nixon's nominees were Burger, Blackmun, Powell and Rehnquist.

Ford's single pick was Stevens.

Republican nominees since then, except for Souter (which was sort of a reaction to Bork), have been solid conservatives. Occasionally they waver, but by and large they (O'Connor, Scalia, Kennedy, Thomas, Roberts, Alito) are predictable on most "conservative" issues.

1:38 PM, April 12, 2017  
Blogger ColumbusGuy said...

Praise God, and pass the ammunition.

5:44 PM, April 12, 2017  
Blogger New England Guy said...

I expect we will see an attempt an impeachment in our lifetimes as the sides start really ratcheting up on the rules in a more 19th century hyper-partisan type atmosphere.

BTW, my 1983 undergraduate senior thesis was about Presidents attempting to "extend their terms of office" through Supreme Court appointments. I found Nixon and FDR were good at it (FDR had a lot of chances though) and Truman and Ike not so much. I only looked at those with more than 4 appointments and measured based on outcomes - on lib/con issues (Schubert and Tate* data) and police issues (which I collected for Nixon) and on whether the nominee was graded a C or better by academics who used to do that sort of thing (that's where Truman fell down in this analysis- three of his appointees got Ds or Fs and the fourth (Tom Clark), he stated was the worst mistake of his presidency)

*I only remember their names right now- I have to look up where they collected this

8:11 AM, April 13, 2017  
Blogger ColumbusGuy said...

Of course we've already seen only the second impeachment of a president.

In that case the failure was not the impeachment, but the senate's failure to convict or at least attempt a serious proceeding (not to mention Rehnquist's inexplicable clowning).

I assume you are saying we'll see banana republic style impeachments (which of course is what the media/democrat complex cast the Clinton impeachment as being, starring that Sex Maniac Ken Starr).

It's an interesting thought. We are clearly in a cold war style civil war. It will certainly be interesting--hate crime spoiler alert--in a Chinese curse sort of way to see how the battle shakes out.

1:04 PM, April 13, 2017  
Blogger LAGuy said...

I can imagine Trump being impeached if the Democrats take the House, but would there be any point to it? It still requires two-thirds of the Senate to kick him out.

In general, if partisans want to play impeachment games, the public might grow tired of it.

On the other hand, a House that spends its time impeaching is a house not spending its time passing laws, so maybe it's not such a bad thing.

2:01 PM, April 13, 2017  
Blogger New England Guy said...

I was referring to the impeachment of a Justice for whatever reasons seem important at the moment by which ever side.

4:16 PM, April 13, 2017  

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