"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Sunday, March 26, 2017

Behind Neil Gorsuch's Non Answers

Every sign suggests that he would be at least as conservative a judicial activist as Samuel Alito.

A ruggedly handsome Coloradan—this President cares a great deal about appearances—Gorsuch has an appealing manner and an impressive résumé. He did well in good schools, held prestigious clerkships, worked at a fine law firm, took a senior post in the Department of Justice, and for the past decade has served on the Tenth Circuit Court of Appeals. From his boyhood days as a Republican Senate page to his decades of volunteer work for G.O.P. candidates, Gorsuch has been a strong party loyalist. (Like many Republican pols, he refers to the “Democrat,” rather than the Democratic, Party.)

His background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor. A sampling of authoritarianism can be seen in Gorsuch’s service in George W. Bush’s Justice Department, where he helped craft a proposal for the treatment of detainees at Guantánamo. (The Supreme Court later ruled it unconstitutional.) There’s social conservatism, too, evident in his one book, a critique of death-with-dignity laws and physician-assisted suicide. “All human beings are intrinsically valuable,” he wrote, “and the intentional taking of human life by private persons is always wrong.” It’s easy to read the book as a coded attack on abortion rights.

To the extent that Gorsuch said anything of substance at his hearing, he put himself across as a mainstream figure. He said that he had participated in some twenty-seven hundred cases on the appeals court, and had voted with the majority in ninety-nine per cent of them. This proves only that most cases are routine. (Even the Supreme Court issues unanimous rulings more than half the time.) The hard cases are the ones that matter, and it’s reasonable to project how Gorsuch would vote in them. He would oppose abortion rights. (Trump promised to appoint a “pro-life” Justice.) His predilection for employers over employees is such that it yielded a circuit-court opinion of almost Gothic cruelty. When subzero temperatures caused a truck driver’s trailer brakes to freeze, he pulled over to the side of the road. After waiting three hours for help to arrive, he began to lose feeling in his extremities, so he unhitched the cab from the trailer and drove to safety. His employer fired him for abandoning company property. The majority in the case called the dismissal unjustified, but Gorsuch said that the driver was in the wrong.

As a Justice, Gorsuch would embrace the deregulation of campaign finance symbolized by the Citizens United decision. (He argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.) His most famous Tenth Circuit decision had him taking a side in the culture wars. In Hobby Lobby Stores, Inc. v. Sebelius, he ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of the religious beliefs of the corporation’s owners. (His position was upheld, 5–4, by the Supreme Court.) In an embarrassing coincidence, on the second day of Gorsuch’s testimony, the Court unanimously rejected one of his holdings in the Tenth Circuit, ruling that it denied adequate educational opportunities to students with disabilities. Every sign suggests that Gorsuch would be at least as conservative a judicial activist as Samuel Alito.

It’s also clear what Neil Gorsuch is not: Merrick Garland. Gorsuch’s nomination is inextricable from its shameful political context. When Scalia died, more than eleven months remained in Barack Obama’s Presidency, but Senate Republicans refused to give his nominee even a hearing. This departure from norms was all the more outrageous because the tactic was used to block a moderate; the Republicans denied Obama his constitutional right in order to trade a Justice who might have been less liberal than Stephen Breyer for one who might be as radical as Clarence Thomas. Such a turnabout seems especially disturbing given that the F.B.I. and other agencies are now investigating the very legitimacy of the Trump Presidency.

➤ Click here to read the full article

Source: The New Yorker, Jeffrey Toobin, April 3, 2017 Issue. Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.

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