SCOTUS Watch

[El Guapo]

Yelling about Gorsuch being outside the mainstream (and other things), holding a filibuster (and forcing McConnell to kill it) and then having Gorsuch confirmed on a mostly party-line vote communicates to people that Gorsuch is controversial, outside the mainstream, etc. If he's confirmed 80 - 20 people get the message "ok this guy is probably pretty reasonable". Not to mention that each instance of obstructionism contributes to running out the legislative clock. This is what I mean when I say that our system rewards obstructionism in and of itself.

To take an extreme example, Republicans couldn't stop Obamacare from being passed, but you better believe their obstructionism was worthwhile.

Except . . . "Grouch" Gorsuch isn't controversial or outside the mainstream. It's obstruction that's communicating a falsehood. How does that really "reward" anyone? If that's the goal, what's the point?

Obamacare obstructionism was obstruction that communicated (mostly) falsehoods. The 'reward', if you believe that the democratic platform is better policy-wise to the republican / Turmp platform, is that by obstructing you both limit the power of the majority to implement bad policy and limit the amount of time that they have to do it (because you shorten the legislative clock and because you win elections sooner that way).

Unfortunately this is the reality of the system that we have at this point. Democrats can also choose to take a more high-minded / noble approach to this, but all the evidence of the past decade suggests that they'll be punished, not rewarded, for it (and again, if you believe that democratic policy is better, the country will similarly suffer for it).

[malchior]

I agree that the outcome is the same. What I'm saying is that Gorsuch perhaps isn't priced right in wackiness factor to burn that filibuster with two octogenarian-ish liberal Supremes and 4 years ahead of you. My rather solid feel and prediction is that they will make a lot of noise and come to a similar conclusion and not pull the trigger.

[Kurth]

Yelling about Gorsuch being outside the mainstream (and other things), holding a filibuster (and forcing McConnell to kill it) and then having Gorsuch confirmed on a mostly party-line vote communicates to people that Gorsuch is controversial, outside the mainstream, etc. If he's confirmed 80 - 20 people get the message "ok this guy is probably pretty reasonable". Not to mention that each instance of obstructionism contributes to running out the legislative clock. This is what I mean when I say that our system rewards obstructionism in and of itself.

To take an extreme example, Republicans couldn't stop Obamacare from being passed, but you better believe their obstructionism was worthwhile.

Except . . . "Grouch" Gorsuch isn't controversial or outside the mainstream. It's obstruction that's communicating a falsehood. How does that really "reward" anyone? If that's the goal, what's the point?

Obamacare obstructionism was obstruction that communicated (mostly) falsehoods. The 'reward', if you believe that the democratic platform is better policy-wise to the republican / Turmp platform, is that by obstructing you both limit the power of the majority to implement bad policy and limit the amount of time that they have to do it (because you shorten the legislative clock and because you win elections sooner that way).

Unfortunately this is the reality of the system that we have at this point. Democrats can also choose to take a more high-minded / noble approach to this, but all the evidence of the past decade suggests that they'll be punished, not rewarded, for it (and again, if you believe that democratic policy is better, the country will similarly suffer for it).

Ends, means . . . slippery slope. I'd rather take the high road.

[malchior]

Ends, means . . . slippery slope. I'd rather take the high road.

What happens when the high road has been washed out? And even if you brave it, the reward is that you get pushed off a cliff by the pitchfork waving townspeople?

[Kurth]

Ends, means . . . slippery slope. I'd rather take the high road.

What happens when the high road has been washed out? And even if you brave it, the reward is that you get pushed off a cliff by the pitchfork waving townspeople?

So be it. If we determine that the only way to accomplish anything in the current system is by obstructionism and by trashing solid people like Gorsuch, then the game's already lost. Lead by example. Do the right thing. These aren't concepts that should just be tossed aside because the other side hasn't been acting accordingly. They are more important than that.

[Remus West]

Ends, means . . . slippery slope. I'd rather take the high road.

What happens when the high road has been washed out? And even if you brave it, the reward is that you get pushed off a cliff by the pitchfork waving townspeople?

So be it. If we determine that the only way to accomplish anything in the current system is by obstructionism and by trashing solid people like Gorsuch, then the game's already lost. Lead by example. Do the right thing. These aren't concepts that should just be tossed aside because the other side hasn't been acting accordingly. They are more important than ever.

FTFY

[Kurth]

I regret the day I ever gave the DNC my email address. What a colossal mistake! This just landed in my in-box:

Join us.
Add your name: tell the Senate to reject Judge Gorsuch's nomination.

Neil Gorsuch, Donald Trump's Supreme Court nominee, is on Capitol Hill this week for the start of his confirmation hearings. We don't know much about Gorsuch, but here's what we do know: he's a radical supporter of big business who believes corporations are people.

Democrats are going to make Neil Gorsuch answer some tough questions about his record -- and then fight like hell to stop his confirmation. Can we count on you to stand with us?

Gorsuch's rulings have been said to "defy common sense and fairness" -- and you don't have to dig too deep to figure out why. He routinely sides with CEOs and corporate interests over the interests of hardworking Americans. He has ruled in favor of insurance companies who want to deny disability benefits and employers facing discrimination claims from their employees.

He was also closely involved in the Bush Administration's assertion that the powers of the president cannot be checked by the judiciary -- so it's not hard to imagine why Donald Trump, who has repeatedly attacked court rulings striking down his unconstitutional Muslim ban, finds him so appealing.

If he's confirmed, Gorsuch would be a stool pigeon for corporate interests, a stone wall standing in the way of working people seeking justice, and a rubber stamp for Donald Trump's extreme agenda on our nation's highest court.

Add your name right now to stand with Democrats who are fighting back, and tell the Senate to reject Judge Neil Gorsuch's nomination:

Thanks so much,

Eric

Eric Walker
Deputy Communications Director
Democratic National Committee

What a tremendous load of horseshit.

[gilraen]

Yeah, I think I got that one too. I say "I think" because I mostly just glance at subject line. If I read every email that I get from DNC, ACLU, Democrats.org, Global Citizen and everything in between, I wouldn't have time for anything else. You don't have to agree with them on everything they send...but you gotta be able to shrug off the little things (and yes, I consider mass emails to be relatively inconsequential). Save the outrage for when it really matters.

[El Guapo]

I've been annoyed by the political / donation spam that I've been getting too. So manic depressive - like one minute it's "TRUMP IS DESTROYING THE DEMOCRATS AND AMERICA!" then the next e-mail five minutes later is "WE HAVE TRUMP ON THE RUN!" etc.

But whatever - it's political spam, so I pretty much just ignore it.

[geezer]

A "stool pigeon" for corporate interests???

[Kurth]

A "stool pigeon" for corporate interests???

It doesn't even make sense!!! Pure drivel. It's like almost Trump-level word salad.

[PLW]

From my perspective, Gorsuch is fine. He's a Scalia replacement without the pizzazz or the heavy Catholicism. He'll be solid against tyranny, which is really all I care about right now.

[El Guapo]

From my perspective, Gorsuch is fine. He's a Scalia replacement without the pizzazz or the heavy Catholicism. He'll be solid against tyranny, which is really all I care about right now.

What makes you so sure about that?

[PLW]

Im not sure. But you never can be. His record is pretty much that of a standard libertarian leaning originalist conservative. That's a judicial philosophy that is pretty suspicious of the gov't. Given that the choices are among conservatives... I want an old school conservative over some maverick, and Gorsuch is clearly the former.

On my cell. Please pardon auto-corrects.

[Smoove_B]

While I don't necessarily agree with the tone of the piece, I do agree with the core idea. This President – whose very legitimacy is being called into question through his campaign’s potential involvement in Russian subterfuge of our election – should not be allowed to have a nominee confirmed through to the Court or even considered until all questions are resolved.

I mean, if the new apparent rule is that a President in their final year of service cannot nominate a Supreme Court Justice, but revelations that the FBI is actively investigating the sitting President don't in any way invalidate a nomination...I really don't even know what to say anymore.

[malchior]

I think it is safe to say that nearly anyone who gets nominated for the Supreme Court will be a 'stool pigeon' for Corporate interests. Check that one off. I do like when the Dems pretend to be scrabbling for the little guy against the rapacious Corporate monster. Makes for good fund raising fodder and they still get to collect $1000 a plate from their actual overlords.

[El Guapo]

Im not sure. But you never can be. His record is pretty much that of a standard libertarian leaning originalist conservative. That's a judicial philosophy that is pretty suspicious of the gov't. Given that the choices are among conservatives... I want an old school conservative over some maverick, and Gorsuch is clearly the former.

On my cell. Please pardon auto-corrects.

Did he rule against the Bush administration in important cases? I'd want to see some kind of track record of nonpartisan independence in his decisions.

Also, more importantly - what matters most concretely over the next few years is how Gorsuch will rule on voting and elections issues. What I've read indicated that he's skeptical of cases challenging partisan gerrymandering. I'm less clear on his views on voter ID laws. Partisan voter ID laws combined with partisan gerrymandering could easily keep Congress in GOP hands through 2020 (or beyond), and Trump + a friendly Congress would do more to move U.S. towards autocracy than the courts could realistically contain, even if Gorsuch's record otherwise is fine.

[stessier]

Is he skeptical gerrymandering is going on or that the courts have a right to intervene when they see it?

[El Guapo]

Is he skeptical gerrymandering is going on or that the courts have a right to intervene when they see it?

There isn't much on the record, but there's an indication of the latter. Basically in the Vieth decision, the Supreme Court held that challenges to partisan gerrymandering are conceptually justiciable (e.g., courts do have the power to entertain challenges on that basis), BUT that as a practical matter there's a lack of enforceable standards to draw a line between permissible and impermissible partisan gerrymandering. Since then various legal types have been trying to come up with a judicially manageable standard for evaluating partisan gerrymandering challenges (that might satisfy Justice Kennedy).

In a tax case, Judge Gorsuch wrote this:

The situation we confront in this case is more than a little reminiscent of the one the Supreme Court faced in Vieth, where the plaintiffs sought to challenge a political gerrymander as unconstitutional. There, 18 years of experimenting by various courts failed to yield any sure standards for litigating those sorts of cases. Here, we encounter an arguably longer history of failed efforts to develop standards for litigating Guarantee Clause cases involving individual citizen initiatives—one extending into the nineteenth century. There, the plaintiffs sought to identify and defend as workable their own set of legal standards at the motion to dismiss stage, but the Court found those efforts unavailing and affirmed the dismissal of the complaint. Here, the plaintiffs haven’t even attempted to identify workable legal standards for adjudicating their case despite many opportunities over many years. If the law’s promise of treating like cases alike is to mean something, this case should be put to bed now as Vieth’s was then, rather than being destined to drag on forlornly to the same inevitable end. I respectfully dissent.

Makes it sound like he thinks that 18 years of looking at the issue leading up to Vieth basically ended with no judicially manageable standard, so the issue (of whether one could be found) has been "put to bed."

[Kurth]

Here's the thing, though: We shouldn't be vetting Gorsuch based on how he's likely to decide individual cases. I don't line up with him on many issues, but that doesn't disqualify him from serving on the Supreme Court. If we look at (1) his education; (2) his overarching history on the bench; and (3) his reputation, especially among the lawyers that have appeared before him and his judicial colleagues, he is undeniably a qualified and deserving nominee. That should end the discussion.

Note:

Byron White’s Supreme Court hearing took only 90 minutes. Judge Gorsuch’s is in its third day.

It's a travesty.

[Smoove_B]

I don't disagree with you. What I've yet to hear is what the appropriate response is to the unprecedented refusal to hold a hearing for Garland. Because from what I've seen, there's zero impact and that is beyond unacceptable.

[Kurth]

I don't disagree with you. What I've yet to hear is what the appropriate response is to the unprecedented refusal to hold a hearing for Garland. Because from what I've seen, there's zero impact and that is beyond unacceptable.

We just had the vehicle for the appropriate response: The Election! Unfortunately, not much was made of the Republican's dereliction of duty in refusing to hold a hearing on Garland. That lost opportunity sucks, but it shouldn't have an impact on Gorsuch's confirmation.

[malchior]

Exactly what I was going to say - the Democrats barely talked about it. They chose not to make political hay of it - for who knows what reasons. They needed to motivate people to get out of their seats and vote. And they failed miserably considering they had issues like this to work with.

[ImLawBoy]

I still think the Dems were worried that the Supreme Court issue would have persuaded anti-Trump conservatives who might otherwise have voted for Hillary/McMullen/Johnson to hold their noses and vote for Trump in order to secure a conservative Supreme Court. They figured they had the election in the bag, so why bother riling up voters to do something that might backfire?

[El Guapo]

I still think the Dems were worried that the Supreme Court issue would have persuaded anti-Trump conservatives who might otherwise have voted for Hillary/McMullen/Johnson to hold their noses and vote for Trump in order to secure a conservative Supreme Court. They figured they had the election in the bag, so why bother riling up voters to do something that might backfire?

Yeah, this is exactly the problem, and why McConnell is the Devil (has anyone seen RMC and Mitch McConnell in the same room??). The SCOTUS seat was the #1 reason for right-leaning people who didn't like Trump to hold their nose and vote for him. Part of the political brilliance of the SCOTUS blockade.

So, you have two problems: (1) you would have a hard time convincing media organizations that "the Republicans still won't do anything on Garland, day #63!" is headline news; and (2) the issue probably only helps Trump among his persuadable voters.

[PLW]

I don't disagree with you. What I've yet to hear is what the appropriate response is to the unprecedented refusal to hold a hearing for Garland. Because from what I've seen, there's zero impact and that is beyond unacceptable.

We just had the vehicle for the appropriate response: The Election! Unfortunately, not much was made of the Republican's dereliction of duty in refusing to hold a hearing on Garland. That lost opportunity sucks, but it shouldn't have an impact on Gorsuch's confirmation.

it can still matter. . Only a minority of the senators involved have been up for re-election yet.

On my cell. Please pardon auto-corrects.

[Grifman]

Exactly what I was going to say - the Democrats barely talked about it. They chose not to make political hay of it - for who knows what reasons. They needed to motivate people to get out of their seats and vote. And they failed miserably considering they had issues like this to work with.

It would not have mattered because that's not an issue that would have swung any of the fringe Trump voters back into the Democratic column. And it's not something that would have galvanized anyone who did not vote. If you weren't already going to vote to keep Trump out office as bad as he was, I doubt you really cared all that much about the Supreme Court issue. It was not going to be an issue that decided the election in any way. Dems would support Dems on this and Repubs would support Repubs.

And to add, I think, based upon prior statements by Democratic leadership, that they would have done the same thing the Republicans did under the same circumstances. So there's more than a bit of hypocrisy here by the Dems.

[malchior]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

[El Guapo]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Right, this is the problem. What is the reason to think that pushing the Republican Supreme Court blockade would have hurt rather than helped Trump?

[Grifman]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Sure, but do you know any friends who voted solely for Clinton because of the Supreme Court? I doubt that. So any motivation for the SC was to encourage Trump voters and potential Trump voters on the borderline, not Clinton voters - they already had enough reason to vote against Trump. Your example doesn't prove your point re: Clinton voters.

[malchior]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Right, this is the problem. What is the reason to think that pushing the Republican Supreme Court blockade would have hurt rather than helped Trump?

It might not have - it might have. This is clearly a 20/20 argument since they lost but anything might have helped. They were hand delivered bad behavior and chose to let it lie. They could have spoken to the anxieties of women who worry about reproductive issues. Or many other issues. They should have tried to drum up business anyway they could. Especially considering the lack of enthusiasm that was shown for both candidates throughout the process. Could that have been a message that spoke to the Bernie Bros? Maybe. (Minimally I imagine). But still they lost by a sliver.

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Sure, but do you know any friends who voted solely for Clinton because of the Supreme Court? I doubt that. So any motivation for the SC was to encourage Trump voters and potential Trump voters on the borderline, not Clinton voters - they already had enough reason to vote against Trump. Your example doesn't prove your point re: Clinton voters.

My point is that the right actively cultivated the Supreme Court message. Via the obstructionism in the first place and the messaging that was fairly pervasive in the right press, blog-o-sphere, and talking points about the importance of the Supreme Court. The left was almost completely silent about it.

[Combustible Lemur]

I've heard of this senator Hirono of Hawaii , I like the cut of her jib.

[Defiant]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Sure, but do you know any friends who voted solely for Clinton because of the Supreme Court? I doubt that. So any motivation for the SC was to encourage Trump voters and potential Trump voters on the borderline, not Clinton voters - they already had enough reason to vote against Trump. Your example doesn't prove your point re: Clinton voters.

This is all just anecdotal.

Frankly, I think the Democrats should have continually pounded loudly on the fact that the Republicans STOLE a supreme court nomination from day 1 - I think it might have given Democratic voters on the sidelines (eg, thinking of voting third party or not voting) more incentive to vote. But I don't think that because they didn't do so before means they shouldn't be doing everything they can to fight it now.

[Isgrimnur]

Timing

One of Neil Gorsuch's decisions about an autistic child's education was struck down unanimously by the Supreme Court Wednesday morning during his confirmation hearing.

The 8-0 ruling, which Gorsuch said he learned about on a brief five-minute bathroom break, overturned his 2008 decision in Thompson R2-J School District v. Luke P., which found that a school district legally abides with the Individuals with Disabilities Education Act as long as it provides an education that “must merely be ‘more than de minimis.’”

The Supreme Court disagreed in their decision handed down Wednesday.

"When all is said and done, a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all," wrote Chief Justice John Roberts in the unanimous decision. "For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly ... awaiting the time when they were old enough to ‘drop out.’”

During his hearing, Gorsuch said his decision was emotionally difficult but that his hands were tied by precedent in an earlier narrow reading of IDEA.
...
Gorsuch acknowledged that the Supreme Court's new holding means his 10th Circuit ruling, which he pointed out was unanimous, is wrong.

"I understand today that the Supreme Court has indicated that the Urban standard is incorrect. That’s fine, I will follow the law. … If I was wrong, Senator, I was wrong because I was bound by circuit precedent, and I’m sorry."

[Zarathud]

There's getting it wrong, then there's getting it wrong on a unanimous decision. Even worse, he's wrong while interviewing for the job.

Just saying "I followed a bad decision" isn't good enough when the job is going to be making sure you make good decisions. It's also the Americans with Disabilities Act, which impacts my family significantly.

New rule - Presidents can't appoint Supreme Court judges while running for re-election.

[Alefroth]

(let's say the Notorious RBG or Breyer were to leave the court)

It'll be interesting to see what happens if they leave the court in the last year of Trump's term.

[Grifman]

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Right, this is the problem. What is the reason to think that pushing the Republican Supreme Court blockade would have hurt rather than helped Trump?

It might not have - it might have. This is clearly a 20/20 argument since they lost but anything might have helped. They were hand delivered bad behavior and chose to let it lie. They could have spoken to the anxieties of women who worry about reproductive issues. Or many other issues. They should have tried to drum up business anyway they could. Especially considering the lack of enthusiasm that was shown for both candidates throughout the process. Could that have been a message that spoke to the Bernie Bros? Maybe. (Minimally I imagine). But still they lost by a sliver.

I disagree - I had friends who voted for Trump solely because of the Supreme Court. I suspect that could have swung both ways. Plus the margins were thin. Anything that galvanized any votes would have been worth it.

Sure, but do you know any friends who voted solely for Clinton because of the Supreme Court? I doubt that. So any motivation for the SC was to encourage Trump voters and potential Trump voters on the borderline, not Clinton voters - they already had enough reason to vote against Trump. Your example doesn't prove your point re: Clinton voters.

My point is that the right actively cultivated the Supreme Court message. Via the obstructionism in the first place and the messaging that was fairly pervasive in the right press, blog-o-sphere, and talking points about the importance of the Supreme Court. The left was almost completely silent about it.

No, your point wasn't just that they were silent on it but that they should have campaigned more on this issue. My point is that would not have gained them anything so why spend the effort/money on an issue that would not serve any electoral purpose. The Repubs knew that there were people who would probably only vote for Trump because the Supreme Court - that was not true for the Dems.

[gilraen]

Timing

One of Neil Gorsuch's decisions about an autistic child's education was struck down unanimously by the Supreme Court Wednesday morning during his confirmation hearing.

The 8-0 ruling, which Gorsuch said he learned about on a brief five-minute bathroom break, overturned his 2008 decision in Thompson R2-J School District v. Luke P., which found that a school district legally abides with the Individuals with Disabilities Education Act as long as it provides an education that “must merely be ‘more than de minimis.’”

The Supreme Court disagreed in their decision handed down Wednesday.

"When all is said and done, a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all," wrote Chief Justice John Roberts in the unanimous decision. "For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly ... awaiting the time when they were old enough to ‘drop out.’”

During his hearing, Gorsuch said his decision was emotionally difficult but that his hands were tied by precedent in an earlier narrow reading of IDEA.
...
Gorsuch acknowledged that the Supreme Court's new holding means his 10th Circuit ruling, which he pointed out was unanimous, is wrong.

"I understand today that the Supreme Court has indicated that the Urban standard is incorrect. That’s fine, I will follow the law. … If I was wrong, Senator, I was wrong because I was bound by circuit precedent, and I’m sorry."

Gorsuch has many rulings like that, where his interpretation of statutes is so narrow that it lacks all common sense, fails to see a bigger picture, or just borders on absurd. For example, the "frozen trucker" case.

[malchior]

Schumer promises a filibuster. I still think it is a huge mistake - vaya con Dios. I hope this doesn't blow up in our faces down the road.

Edit: I did want to say though that the Franken exchange really opened my eyes to the objections against him. I have reservations about his judgement but still think this is the wrong hill to call a nuke on.

[geezer]

Schumer promises a filibuster. I still think it is a huge mistake - vaya con Dios. I hope this doesn't blow up in our faces down the road.

Edit: I did want to say though that the Franken exchange really opened my eyes to the objections against him. I have reservations about his judgement but still think this is the wrong hill to call a nuke on.

Agreed 100%. This is pure obstructionism, and the public will react accordingly. Next time, when a true nutter is nominated, there's no recourse, and all the public horror in the world can't "un nuke" the process.