The Supreme Court nominee could backfire on the president
The Short Version
The 45th president announced his Supreme Court nomination last night, 10 circuit appeals court judge Neil Gorsuch. Gorsuch is a conservative who says he tries to emulate the late Antonin Scalia, whose seat he takes on the court. However, if Gorsuch’s writings forecast how he might vote, the president could be surprised with the outcome.
What We Know Now
The White House tried to hype the announcement of the president’s Supreme Court nominee as though it were a game show finale. Media was led to believe that two finalists were being flown in and that the “winner” would be announced live on primetime television. That wasn’t what happened.
Instead, the announcement was quite routine, to the point of almost being boring. Gorsuch had been the front runner all through the vetting process. He was the only person standing with the president when the announcement was made. Gorsuch made the obligatory speech where he recognized the solemn duty of the high court and promised to uphold the Constitution. We would have been deeply disturbed had he said anything else.
What happens now, though, is something most of us couldn’t survive. Senator’s interns and legal assistants started immediately last night digging through everything that Gorsuch has ever written and every decision in which he has had a part. They are looking for anything that might indicate he could spell trouble for the court. If Republicans find that he might not hold to their values, they can kill the nomination before it reaches the full Senate.
They’re not likely to find anything that will immediately unseat Gorsuch’s nomination, however. Gorsuch clerked under two Supreme Court justices, including justice Stephen Kennedy who still sits on the high bench. In addition to his Harvard Law degree, Gorsuch holds a doctorate in philosophy from Oxford University. His writings are carefully thought out, not hot-headed and incendiary like those of the late justice Scalia. One isn’t likely to find any serious gaffes or extreme reasoning.
For Republicans, there’s the fact that Gorsuch ruled in favor of Hobby Lobby in a case that allows privately-owned for-profit businesses to base policy on the owner’s religious beliefs. There’s little question that Gorsuch holds religious liberty high through several of his writings and rulings. However, Gorsuch has not been vocal on matters related to abortion or LGBTQ rights, two issues on which he might one day have to rule. In fact, he’s been completely silent on both matters.
Democrats are likely to take a strong look at Gorsuch’s opinions related to government agencies interpreting the Constitution. He has written that such rulings, “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” He’s not alone in this opinion. Justice Clarence Thomas holds similar views. The end result could well be that the two could convince the other judges to limit the authority of the president and federal agencies.
A couple of other things worth noting: Gorsuch would be the only protestant on a court dominated by Catholics. Gorsuch is Episcopalian, which tends to tilt to the left in religious teachings. His mother, Anne Gorsuch Burford, was head of the Environmental Protection Agency under President Reagan, which could have some lasting influence in his opinions related to environmental concerns.
There is little question that a fight is brewing. Democrats are still pissed that Senate leadership wouldn’t even consider President Obama’s nominee last year. They’ve already said they don’t view Gorsuch as being “mainstream” enough to fill the position and are likely to block his nomination through any means possible.
At the same time, a conservative group is planning to spend roughly $2 million on ads in Indiana, Missouri, Montana and North Dakota, four states that Trump won and in which Democrats will be defending their Senate seats in 2018.
To some degree, whether Mr. Gorsuch is qualified to sit on the high court is irrelevant. This is political. It’s not the way the framers of the Constitution intended, but it is the reality of this Congress and this administration. Politics are what matters now and that will be what determines whether Gorsuch is confirmed for the bench.
Strap yourselves in. The fun is just starting.
Protesting For The Right To Protest
One of the primary tenets of the First Amendment of the US Constitution is the right to “peacefully assemble,” re. the right to protest. It has been an anchor in the right to free speech and has been presented to us as one of the underlying differences between the US and other countries. The fact that we allow our citizens to protest is supposed to be one of the things that make us better than anyone else.
Well, as of Monday, April 15, 2024, you can pretty much toss that one in the can. The Supreme Court of the United States, in its endless bafflement, ruled against the First Amendment in rejecting an appeal from DeRay Mckesson in a case that stems from a 2016 protest over the police killing of a Black man in Baton Rouge. What the court appears to have said is that the person who organizes a protest is responsible for the actions of the people participating in the protest.
There are some caveats. First, Associate Justice Sonia Sotomayor warned lower courts to “not read anything” into the decision. In other words, by rejecting this particular case the court does not rule out the possibility that it might take up the full matter at a later date. Second, it is important to realize that in rejecting the case, justices did not hear full arguments on the matter, which would give the matter the weight of precedence in subsequent cases.
However, the decision is still troubling. The decision will most definitely hold some influence over lower courts. Yet another Pandora’s Box has been opened (how many of those damn boxes does Pandora have?).
What’s all the fuss, Gus? Back in 2016 (remember 2016?), a man named DeRay Mckesson organized a protest in Louisiana after police killed a black man in Baton Rouge. During that protest, someone unidentified threw a “rock-like object” and it hit an officer. Since the rock thrower couldn’t be identified, the officer, hiding behind the moniker John Doe, decided to sue Mckesson for not controlling the protest he instigated. The initial federal court threw out the suit, which was, unquestionably in my opinion, the correct decision. However, the 5th U.S. Circuit Court of Appeals ruled 2-1 to pick it back up because Mckesson didn’t lead the protest onto the highway, resulting in a standoff with police and the injury to the officer.
If this is going to be the case, someone let that former president know that he is now on the hook for every action taken by protestors on January 6, since he organized that melee. It’s all his fault.
More seriously, though, we have to look at this decision as a warning to anyone who might consider organizing future protests. How the fuck are you supposed to “control” a crowd who is righteously angry? Do you remember what was going on in 2016? We were finally standing up to the fact that people of color were being indiscriminately murdered by police! There was every reason in the world to protest and every reason to exhibit anger as part of those protests.
So, what happens when the Supreme Court does something really stupid like take away the right to gender-affirming care for everyone, not just trans kids in Ohio? Is that topic safe to protest? Can we get everyone on the highway? What happens this fall when Republican Governors mobilize the National Guard because they don’t like the way the elections go? Is that going to be safe to protest? What about when the Supreme Court overturns the January 6 convictions on a technicality? Are we safe to protest that fatality of justice?
The nature of protests is that the more people participating, the more seriously the protest is taken. However, the more people protesting, the more likely it is that someone is going to misbehave, often out of anger at a gross miscarriage of justice and the fear that their opinion is not being heard by those in power. The more government leaders attempt to shut down protests, as they did the Black Lives Matter protests of 2016, the more angry protestors are going to be. If elected leaders aren’t going to pay attention to their constituents through the manners prescribed by law, then protestors are more likely to resort to more extreme manners of communication.
Did we learn nothing in history class?
We need to protect the right to protest. When those we’ve elected to uphold the law take it upon themselves to ignore the law, protest may become the only way we have of solving the problem.
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