Monday, April 10, 2017

Gorsuch = #9. What now for SCOTUS?

Judge Neil Gorsuch was confirmed as the ninth justice on the Supreme Court.   Will he make as much difference as liberals have been predicting?   Probably not, but still a lot.

First, I have to say that I think the Republicans have behaved outrageously in denying President Obama's constitutionally mandated right to nominate the next Supreme Court justice.   Nowhere does the law add "except in an election year" to that mandate.  Instead, the Republicans just said "No" to the process, refusing even to interview Judge Garland.

Even their "excuse" is false justification.  "Let the people decide" through the election favored the Democrat.  Hillary Clinton won the popular vote by almost 3 million votes.   Only the arcane math of the electoral college gave the presidency to Trump.  The people "chose" the liberal option, which would not have led to a Gorsuch nomination.

But now we have to deal with the reality that Gorsuch has been confirmed, and we now have a full complement of nine justices again.   How will he do?

My initial reaction when Trump announced his choice was relief that he had chosen someone who was highly qualified as a legal mind and a seriousness about the law -- not some outrageous, typical Trump pick, who has no experience in the field and/or who wants to destroy the department he's been nominated to run.   Aside from his position on the conservative/liberal spectrum, he seemed a good choice . . . better than expected from Trump.

Even on that spectrum, my initial thoughts were that he is replacing one of the most conservative justices on the court, so at least it wouldn't be worse than with Scalia.  It's the next vacancy that will be important in tipping the balance to the liberals or solidifying it for the conservatives.

However, as we got to know Gorsuch's history of legal opinions, concerns began to grow.   It's very clear that he strongly and consistently has favored business interests over individual claims of rights or injuries.   So expect him to be a reliable vote with Roberts and Alito for big business.  Forget overturning Citizens United.

On other issues, such as reproductive rights, "religious liberty" (aka LGBT discrimination), marriage equality, affirmative action, voting rights, expect him to vote with the conservative justices.

The big question to me, however, is:   Will he be able to take a tough stand against President Trump, if it should come to that -- say, on the travel ban?   I expect him to follow the law, as he reads it.   But will he be an independent voice within the law?   It's not always so clear-cut, black-or-white obvious what the law is.  Usually cases that make it to SCOTUS come down to a clash between two conflicting values.

We lost this round -- even if it was the Russians' and James Comey's fault that Clinton lost.   Our next real chance comes is November 2020.  Even if Trump gets impeached, then we have Pence.   So we wait, hoping that Justices Ginsburg, Breyer, and Kennedy remain in good health and eager to continue serving until then.


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