Sunday, February 12, 2017

The Case Against Confirming Judge Gorsuch Isn't Personal

by Michael Dorf

Two recent news stories may have led some people to conclude that I hold certain negative views about Judge Gorsuch that I do not in fact hold and did not in fact express. In neither case did anyone act in bad faith, but the episodes illustrate a frustration that academics sometimes experience when speaking to the general public.

For a little over a year, Newsweek has been republishing most of my and Prof. Buchanan's blog posts and Verdict columns (with our permission, of course). We are very grateful for the increased exposure to which such republication has led. Other than changing the links and occasionally editing out material that fits on the blog but not in a more general publication, Newsweek runs our essays pretty much just as they first appeared on DoL or Verdict. The one exception concerns titles. Consistent with the general practice in journalism, Newsweek chooses the titles to our pieces without our input, invariably using a title that is either a little or a whole lot different from the titles we originally chose. Often the new titles are catchier or otherwise better than the originals. Sometimes they're merely different, emphasizing a different point from the one that Prof. Buchanan or I had emphasized in the original title, but still perfectly fine. However, on rare occasions, the title goofs by implying that the column makes a point it does not make. Even so, my tendency is to let it go, partly out of deference. If a title does not really reflect what the essay says, so what? Presumably the professionals at Newsweek know better than we academics how to attract eyeballs.

But this weekend was different. DoL readers may recall that last week I wrote a post that I titled Disheartening and Demoralizing But Mainly Distracting. In it, I threw cold water on the conspiracy theory that the Trump administration had colluded with Judge Gorsuch to have him criticize the president's disrespectful comments about the judiciary precisely to make Judge Gorsuch harder for red-state Democratic Senators to oppose. I noted that given Trump's mercurial temperament, even Judge Gorsuch's fairly mild criticism took some courage. I explained that the media's focus on the backstory of Judge Gorsuch's comments to Senator Blumenthal nonetheless served the purposes of the Trump administration by distracting the public's attention from the substance of Judge Gorsuch's views and the horrors of the administration's immigration policies, which were the occasion for the Trump comments that Blumenthal asked Gorsuch about. I concluded as follows: "in the end, it doesn't really matter whether or not Trump and/or his minions are deliberately playing the media and the public. One way or another, they're being played."

I imagine that the Newsweek folks liked that metaphor and so titled the republished version of my post "Supreme Court Pick Gorsuch Plays the Press Like a Fiddle." Yet that headline expressed almost the exact opposite of the point that my essay made. I argued that it was highly unlikely that Judge Gorsuch had engaged in any kind of calculated scheme to deceive the press or public, even as I concluded that whether or not the Trump administration had deliberately played the press, the press (and the public) had been distracted.

As I said above, even on other rare occasions when a headline misrepresented my point, I have let it pass, but I could not let this one pass because I felt it was unfair to Judge Gorsuch, whose professional qualifications and personal integrity I have absolutely no reason to question. Accordingly, I contacted my editor at Newsweek and he immediately and graciously agreed to change the title of the essay to Gorsuch's Trump Remarks are a Distraction. In the meantime, however, the essay with the original title had been tweeted around a few dozen times, which is why I'm taking the time to write about the episode now. In case anyone comes across the older headline (still reflected in the URL for the revised version), I want to make clear that I do not think that Judge Gorsuch has engaged in any "playing" of the press or public.

Meanwhile, a New York Times story could be read to imply that I attributed something like bigotry to Judge Gorsuch. In a story titled Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say, reporter Sheryl Gay Stolberg recounts how people who know Judge Gorsuch personally believe, based on their own experiences, that he supports equality for LGBT persons. Why, then, she wants to know, are the national LGBT rights organizations opposing his nomination?

I spoke with Ms. Stolberg late last week and explained that there really isn't any mystery here. Someone can be personally quite comfortable with LGBT rights and even support them as a legislative matter but nonetheless take the view that the Constitution does not protect a right to same-sex sexual intimacy or same-sex marriage. I recalled for her the accusation of homophobia that former Congressman Barney Frank leveled against Justice Scalia based on Scalia's dissent in Lawrence v. Texas. Frank noted that whereas Justice Thomas, in his dissent, explained that he would vote against a law criminalizing homosexual sodomy were he a legislator, Scalia said no such thing.

I told Stolberg that the way to reconcile the personal accounts of Judge Gorsuch as not at all bigoted with the concern of the LGBT rights groups is to recognize that based on his general jurisprudential commitment to originalism in constitutional interpretation, Gorsuch could end up being like Thomas: personally supportive of LGBT rights as a citizen but against finding them in the Constitution. The LGBT rights groups would thus have reason to be afraid that even though Gorsuch is no bigot, he might vote against their claims as a justice.

Stolberg accurately quoted me in her story, but in a way that could be misleading. Immediately after recounting how Judge Gorsuch was personally very supportive of the same-sex marriage of a former law clerk, Stolberg writes:
Michael Dorf, a law professor at Cornell who knows Judge Gorsuch in passing — they were both clerks to Justice Kennedy and run into each other at clerk reunions — says gay rights advocates “have reason to be afraid,” based on the existing evidence about Judge Gorsuch.
This language could be read to suggest that my inference was based on some personal knowledge. It wasn't. I barely know Judge Gorsuch at all, but the people I know well who in turn know him well uniformly speak extremely highly of his personal character. I have absolutely no reason to think that he harbors bigoted views about LGBT persons or anyone else.

The Times article also implicitly draws a contrast between my views and those of Professor Tribe, whom it also quotes. After noting that gay rights groups are concerned that Judge Gorsuch's siding with Hobby Lobby in its litigation against the regulation requiring provision of health insurance that includes coverage for contraception, Stolberg says that Tribe regards Gorsuch's position in Hobby Lobby as “an indicator” but not “a slam-dunk predictor” of his views about LGBT rights.

I completely agree with Tribe. How a Justice Gorsuch will vote on a range of LGBT rights cases is unknown. Based on his general jurisprudential commitments, the rights groups have reason to be afraid, in the same way that if you learned that a plane you were about to board had a 30% chance of crashing you would have reason to be afraid. Indeed, you would have reason to be afraid if there were a 5% chance of a crash.

Before I leave this topic, I should point to one other way in which the Times article is potentially misleading. Immediately before quoting me, it states: "If Judge Gorsuch is confirmed, the composition of the court that made up the Obergefell majority will be unchanged." This might make me look like a doofus who cannot do simple arithmetic. Why should LGBT rights groups be afraid when a Justice Gorsuch would be at most a fourth vote to overrule Obergefell? And maybe not even that, because it is not that hard to imagine that one or more of the Obergefell dissenters might think that all of the marriages that have occurred since the decision create a reliance interest that counsels against overruling.

The answer has two parts. First, stare decisis could be decisive for Chief Justice Roberts, a Justice Gorsuch, and/or perhaps even Justice Alito or Justice Thomas, but it might not be, so it is possible that Gorsuch could cast the fourth vote to overrule Obergefell. Second, this might not be the only vacancy that President Trump gets to fill. If one of the members of the Obergefell majority leaves the Court during Trump's time in office (and while the Republicans hold the Senate), the confirmation of Gorsuch could end up contributing to Obergefell's overruling.

Is that likely? I don't think so, but I also don't think it's out of the question. Thus, what I said was that LGBT rights groups "have reason to be afraid," not that they have reason to be confident that Judge Gorsuch, if confirmed, will vote against their interests or that his vote would be immediately decisive.

* * *

Some readers may conclude that I am being overly sensitive. After all, Newsweek quickly changed the headline, and Stolberg's article did accurately quote me. And I want to reiterate that I don't believe that either my Newsweek editor or Stolberg were deliberately trying to make me appear to say something I didn't say. If I am being overly sensitive, it is because I want to distance myself from the personalization of the confirmation process.

I continue to think the following about Judge Gorsuch:

1) He has stellar professional qualifications and an outstanding judicial temperament;

2) Democrats would nonetheless be justified in opposing his confirmation based on the shabby treatment by Republicans of Judge Garland, who likewise has stellar professional qualifications and an outstanding judicial temperament;

3) Depending on the extent to which one thinks that ideology is an appropriate basis for rejecting a Supreme Court nominee, Democrats might also be justified in voting against Judge Gorsuch's confirmation on the ground that they do not share his textualist/originalist judicial philosophy and are concerned about the results to which it might lead;


4) One way or another, Judge Gorsuch will almost certainly be confirmed as Justice Gorsuch. At that point, the fact that some people opposed his confirmation on grounds 2) and/or 3) should not be taken as in any way impugning his professionalism or integrity.


David Ricardo said...

Excellent explanation

I would however disagree with your point 2

"Democrats would nonetheless be justified in opposing his confirmation based on the shabby treatment by Republicans of Judge Garland, who likewise has stellar professional qualifications and an outstanding judicial temperament;"

I would argue that voting on a Justice is a statistically independent event, that each decision to vote yea or nay should be based on the individual nominee and not on past actions by either party. The sad but true state of affairs is that the President gets to select the nominee, which is what Democrats vehemently argued, and unless that person is unqualified or is personally unacceptable to a Senator, that person should get a 'yes' vote. To do otherwise would be mean, vindictive and intellectually dishonest, or in other words, Republican.

Ben Alpers said...

"The sad but true state of affairs is that the President gets to select the nominee..." Actually, no, as we saw in Obama's attempted nomination of Judge Garland. Democrats argued vehemently that the President should get to select the nominee, they lost the argument. As things stand now, parties get Justices on the Supreme Court through political force, no more no less. There's nothing intellectually honest about insisting that a political state of affairs exists that simply does not exist.

Democrats ought to work toward returning to a situation in which the President gets to select a nominee and he or she receives an up-or-down vote as a matter of principle. But this is a long-term prospect that can only be achieved when the Republicans show a willingness to act differently from the way they did all last year. And, unfortunately, they have no opportunity to do so until Democrats retake the White House.

Until that happens, Democrats should oppose any nominee until and unless Trump nominates Garland (which he won't). And if and when Democrats retake Congress and the White House, they should add two additional Justices to the Supreme Court.

This is hardball. And pretending otherwise serves nobody but the Republicans.

Shag from Brookline said...

I was not aware of the Newsweek role with this Blog and Verdict columns of Mike and Neil. So I appreciate the information and explanation Mike provides, for I am often troubled by titles of pundit columns in particular that sometimes do not reflect the content of a column. I have developed opinions of certain political pundits over the years and sometimes a column title may lure me into reading a column by, say, George Will, and I realize that the column's content/context are not reflected by the title. Perhaps for disclosure purposes, a title that is not the product of the columnist calls for an indication of the title provider.

That said, I had read with interest Mike's earlier post he references. I put up this comment there before "moderation" set in:

"I understand that Judge Gorsuch now claims through his handlers that his "disheartening" and "demoralizing" comment was not referring to Trump, after Team Trump seemed a little upset with reports following reportage of the Judge's comment. Mere coincidence?

8:19 PM "

While Mike does not address that point in this current post, I think it is relevant to consider by Democrat Senators who understood the context of Judge Gorsuch's "disheartening" and demoralizing" comment. So there may have been retrospective "playing."

Unknown said...

Since Judge Gorsuch will definitely be confirmed, the most important thing that the Dems can do at the hearing is to question him extensively about separation of powers, judicial independence, and constraining executive overreach.

I believe he is a man of his word. So, if he wholeheartedly commits himself to the constitutional role all members of the judiciary should fulfill vis-a-vis the executive branch (i.e., acting as a check on the Executive Branch in general, and Trump in particular), I believe the Dems would be well-advised to vote to confirm him, notwithstanding the GOP's disgraceful (and arguably unconstitutional) refusal to even afford Judge Garland a hearing.


Shag from Brookline said...

That seems to be a suggestion that Senate Democrats should turn the other cheek after the Senate Republicans "mooned" Pres. Obama's nominee a year earlier.

Joe said...

John Smith's comment is ill-advised to me -- if he is going to be confirmed anyway, why exactly should Dems vote to confirm? What benefit does that bring?

There are various concerns here, including an appropriate response to blocking Garland. Ben Alpers' comment is appropriate there. An unofficial "reprisal" is appropriate there until there is clear evidence Republicans will play fair.* For instance, if a conservative libertarian like Judge Kozinksi (in his 60s) was picked instead of a young Federalist Society dream, an argument can be made he was a reasonable compromise. Yes, a reasonable assumption can be made by the sorts of organizations (even if there is a bit of optimism mixed in) who support him.

I would also note that there a range of things Gorsuch will decide, long after Trump leaves, so the extra vote he will provide on ONE subject is of limited value to me. And, what does that mean? I'm sure Justice Scalia thought his dissents in the PPACA litigation in part were principled checks on the executive. For instance, see the posts on this blog on "Chevron deference" -- net, long term, I think his position is troublesome, even if in some small way it might, eventually, restrain Trump.

Anyway, I do think a Democrats should strongly use the confirmation process to sell their brand, so to speak, including their general opposition to originalism. This is surely the case when some, including my junior senator, are leading with ideology as a reason to be against him. Ideology is of particular concern when bad faith taints the situation, the faith not somehow mooted by the election.


* If the tides were turned, Republicans would be quite in their rights to play hardball.

Joe said...

"To do otherwise would be mean, vindictive and intellectually dishonest, or in other words, Republican."

One or more of those labels as applied to Dawn Johnsen et. al. is unfair, particularly the "intellectually dishonest" one. If you don't agree with the arguments made, fine, but that is different than intellectual dishonestly. The emotional laden personal terms sometimes used in these debates, don't claim myself as an angel, is troubling.

Shag from Brookline said...

Earlier today I linked to a NYRB review essay by Garry Wills on a number of books on Jesuits. Unfortunately I am not a subscriber and was limited to a page or so. Via Google I was unable to backdoor the essay. However, I was led to Wills' NYRB review titled "The Triumph of the Hard Right" of E.J. Dionne's "Why the Right Went Wrong-from Goldwater to the Tea Party and Beyond" (2/11/16 issue). In effect Wills somewhat disagrees with Dionne. This review essay was written before Trump got the GOP nomination but addresses his campaign. I share Ben Alpers' and Joe's views. Trump is not of GOP establishment but many of Trump's views are the views of the Republican Party as developed from Goldwater on. Bill Buckley's role is mentioned in the essay. (Also mentioned in the essay is that Dionne and Wills started out as Goldwaterites.) Paul Krugman has many times detailed the political hardball played by the GOP establishment that tried to separate itself from Trump. Democrats should not bring a handshake and chablis to a gun fight.

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David Ricardo said...

Exam Question: Define ‘intellectual dishonesty’ in the political context and give an example.

Answer: Justifying one set of actions when your party is in power and justifying the opposite set of actions when the other party is in power. An example would be Democrats demanding an up-and-down vote on their nominee to the Supreme Court as a right and working to deny an up-and-down vote on a Republican nominee to the Supreme Court when the Republicans are in the White House.

If Democrats were in power then yes, they should deny Trump a Supreme Court nominee. But they are not in power. Everyone admits they cannot deny Trump confirmation of someone, most likely Gorsuch. This ain’t a gunfight, but if it were the weapons have already been set out. Democrats have a cap pistol and Republicans have an AK 47.

If it is pre-determined that you are going to lose a fight then lose with charm, grace and dignity and move on to engage in a fight that you could win. At some time in the future the moderate portion of the electorate, the group that decides elections is going to want a party in power that turns down the rhetoric, lowers the heat and acts in a manner that suggests they could actually govern. They are going to want McLuhan ‘cool’ as opposed to McLuhan ‘hot’ and Democrats need to position themselves as that party.

Joe said...

It is not "intellectually dishonest" to respond to a violation of a norm by trying to stop the other side from having crime pay.* It is not that a "Republican" in the White House alone that is the issue here. And, they aren't even doing the same thing. Garland received no hearings or cloture vote. I don't see any sign Democrats don't want to give Gorsuch a hearing or cloture vote.

The Democrats were the victims. Having Hillary Clinton pick a younger and somewhat more liberal justice would be an appropriate relief. If Trump picked Garland or someone comparable, they too would have much less grounds. But, he did not. The Democrats have no intellectual honesty grounds to vote to confirm to add insult.

It would be "intellectually dishonest" for Democrats in the Senate and anyone else to only care as a matter of principle (politics being part of confirmations in a political body, this isn't the only thing at issue) if one party denied a President's nominee to SCOTUS hearings, a cloture vote and an up/down vote. Some claim Democrats would have done the same thing. I have grave doubts, especially if the same situation (good chance of fail in November elections) occurred. But, not being "intellectually dishonest," I said IF they did, Republicans would have cause to play hardball too.

You can lose the current battle "with charm, grace and dignity" by on the merits not supporting Gorsuch based on ideology and on the grounds the seat was stolen. It is not "intellectually dishonest" to do so. Likewise, it was not without those things Democrats opposed multiple Trump Cabinet nominees, even if they all were confirmed.

This is what a political minority repeatedly does -- loyal opposition even if they won't win the battle now. This also has political value, including energizing the base, who already are excited by principled opposition of the Trump Administration. This is all done as "governing" occurs, since people are still being confirmed and so on. But, if rank violations of norms are just handwaved away as mooted because the criminals won and we can't stop them now, things very well just will get worse.

I'm unsure how useful this bland go along with the Republicans strategy will be long term. Did Republicans win that way? Democrats can govern and oppose on principle, especially when they are out of power and government isn't really much in the hands anyway.


* As seen by the Dawn Johnsen article, never confirming any Trump nominee isn't necessarily the argument put forth.

Shag from Brookline said...

Growing up in political Boston with the battles between the Brahmins and the Irish [I'm neither], I soon became aware of the Irish pols reaction after a loss to the Brahmins: "Don't get mad, get even." How to get even? Yes, with "charm, grace and dignity" but also with humor and a tad of guile. There may be many battles, but losing a few battles does not lose the war (metaphorically speaking). And turning down the rhetoric can lose the base, so the thermostat has to be adjusted from time to time. Democrats as a minority can demonstrate that they can govern by constantly demonstrating that Republicans cannot, will not govern for the benefit of the 99%. Politics ain't beanbag, never has been. Some like it hot, some like it cold - and some like it in the pot, 9 days old.

David Ricardo said...

Agree completely with Shag, particularly on the humor and guile part. There is this from my blog which specializes in satire and ridicule.

"Trump Signs Executive Order Overturning Lincoln's Emancipation Proclamation

Republicans Applaud Reversal of a President Who Over-reached - Say Slavery is Something the States Should Get to Decide" . . .

The President went to to say "The Africans who were brought to this country were not vetted, had no visas and were in all likelihood would not be paying any taxes as they had to live their life in slavery. Most didn't even bother to learn English. These illegal immigrants should be returned to their own country" After someone reminded the President that none of the original slaves or anyone who had been a slave was still alive, and that all of their descendants were full and equal citizens Mr. Trump exploded in rage and demanded to know who brought that about and why wasn't he told. The Attorney General said it wasn't his fault, he just learned that stuff last week himself.

Later at a news briefing Soviet Sean Spicer said that the press was unfairly criticizing Mr. Trump for his ignorance on the whole issue of slavery and black history and that it was not fair of the press to expect a man who had never served in government and had no knowledge of the nation's history and institutions to recognize that slavery had been banned by the Constitution in the 13th amendment. He said that Trump was amazed when informed that the Constitution had amendments as the President knew only about the 19 Articles in the original Constitution."

As for getting even, Democrats can only do that by winning elections. In 2016 Democrats ran an all out scorched earth anti-Trump campaign instead of focusing on the results of the Obama administration and the virtues of their candidate. How did that work out?

Joe said...
This comment has been removed by the author.
Joe said...

If you completely agree with Shag, I'm unsure how different our positions really are.

Clinton repeatedly spoke about her plans (her convention speech was satired by John Oliver for being overly specific) and picked a nice guy v.p. I find these debates on the election somewhat tiresome since I look at history and 12 years of the same party has been an uphill battle & Clinton being an establishment figure made it harder. The margin included people who wanted change and some degree of ugliness. How useful is appeals to the status quo and grace and all that to address these people?

Shag from Brookline said...

Perhaps I should have added to my earlier comment that over time the Irish pols won more and more battles with the Brahmins, controlling the state legislature for Democrats, with occasional pop-up Republican Governors who had to be somewhat moderate in order to govern. But as a progressive in MA, I am most proud of our federal delegation, an honorable group going back many decades. (However, I do have concern that Democratic control of the state legislature has been so strong that it has led to too many political scandals, particularly of House Speakers, also a GOP problem with the federal House.)

On the humor side, SNL had several segments on Team Trump last week. A NYTime columnist suggested that perhaps SNL was going overboard in saturation. If that were the case, then Stephen Miller's saturating appearances the next day on the Sunday political shows provide SNL with yet another Team Trump Tootsie for the next SNL. As I watched/listened to the repetitious Miller, I recalled Charlie Chaplin's "The Great Dictator" from my youth. Later Trump tweeted what a great job Miller did defending him. Perhaps some note a Miller resemblance to Roy Cohn who early on mentored Trump. While Mel Brooks is long in the tooth and short in his steps (as I am), we could use him for an update of "The Producers" to reflect The Donald's "Putin America - First."

And speaking of Miller, he and Bannon give new meaning to the phrase "Even Stephen."

Shag from Brookline said...

Trump's NSA Gen. Flynn is getting a lot of attention the past couple of days. Back in the early 1940s as a pre-teen I learned of the expression "In like Flynn" and the escapades of movie "hero" Errol Flynn. With all the decades since intervening, perhaps it may be modifies to "Out like Flynn" as investigations continue as to Flynn's role in Trump's "To Russia With Love" campaign. Trump has been somewhat quiet on this, especially with his twitter fingers. It is said that Team Trump has long knives out within its ranks. But it has been suggested that yet others in Team Trump may have had Russian connections during the campaign. Is Trump so incurious that he did not ask Flynn about this, perhaps to maintain plausible denial (unlike VP Mike Pence who for some reason - wink, wink - did not appear in any of the Sunday political shows)? Yet, Trump does talk with Flynn.

For example it is reported that Trump called Flynn early one morning to ask him what it meant if the dollar is strong or if it is weak, perhaps to provide Trump with some insight on how the economy was doing. It is said Flynn responded that he had no answer as that was not in his area of expertise. (That might have been a time for Trump to discuss with Flynn his Russian expertise.) Presumably Team Trump has economists. Why didn't Trump contact one of them? One may posit that Trump thought he might look stupid to a Team Trump economist with such a question that would be embarrassing to Trump. Does Trump use Google for information?

At Eric Posner's Blog, he has a post on some recent claims of mental instability on the part of Trump. Eric doesn't think so, taking the view of Trump incompetency. I am a mere Juris Doctor (converted from an LLB), and have no expertise in judging whether Trump suffers from mental instability. But in my 87th year, professionally and otherwise, I have come across people who are crazy, who would rather be thought to be stupid or incompetent rather than crazy. Recall that Trump once sued a writer for defamation for the writer's claim that Trump was not as wealthy as he claimed to be. [Spoiler alert: Trump lost.] segue to a few years after that lawsuit ended when Trump agreed to a Central Comedy T-Rump Roast. Only one area of Trump's celebrity lifestyle ]this was pre-Access Hollywood tapes disclosure] was off limits for Roast jokes. [Ignore the spoiler alert!]

Back on topic more directly, Judge Gorsuch is Trump's nominee. Trump's baggage cannot be avoided for such an important appointment to the Court. As Mike says, it isn't personal about Judge Gorsuch but it is personal about Trump, as the appointment of Judge Gorsuch may be considered to carry with it Trump's baggage.

[Note: Regarding Trump's question to Flynn, I recall during my days representing a publicly traded corporate client of SEC financial disclosures that at times would in part blame the strong dollar and at other times the weak dollar to explain revenue/earnings results.]

Shag from Brookline said...

Will "Out Like Flynn" extend to others on Team Trump?