Neil Gorsuch: to the right of Scalia?

Neil Gorsuch is a significant and meaningful choice for SCOTUS. The image above is not fake, it really is his Harvard Law yearbook photo. If he was a Democratic pick, that one image would end him. Since he is a Republican pick, democrats have a Big Tent instead of a spine, and Republicans have no ethical floor to avoid crashing into, he will be confirmed.

Judge Neil Gorsuch speaks, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. President Donald Trump on nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives' favor. / AFP / Brendan SMIALOWSKI        (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

Judge Neil Gorsuch speaks, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017.
President Donald Trump on nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives’ favor. / AFP / Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

He is a very conservative judge, probably more conservative than anyone who has been on the court in recent memory or possibly ever.

This pick seems to say a lot about how the Trump administration seems to be operating. (See: The Norms of Society and Presidential Executive Orders.)

Gorsuch is a Geroge W. Bush appointee (10th circuit, May 2006). He is famously the son of Anne Gorsuch-Buford, who was EPA Administrator under Reagan, forced to resign after being shown ineffective in actually protecting the environment.

Gorsuch produced an op-ed in the ridiculously conservative National Review, in 2005 (NR 2/7/05), criticizing liberals, in which he wrote,

“But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose.”

He has been very active in the Federalist Society, a libertarian and conservative group of lawyers and judges.

Gorsuch has fairly direct ties to the Anschutz Foundation. He wa a member of the Walden Group (a company) which was registered to Cannon Harvey of Colorado, and the Harveys (Cannon and Lyndia) were or are friends of Gorsuch according to a 2008 financial disclosure report. Harvey was an officer and member of the board of directors of Anschutz, and Anschutz funds directly and indirectly anti-science organization ssuch as the Heritage Foundation, extremely conservative groups like the Goldwater Institute, supports Right to Work (think Wisconsin), and has seemingly funded anti-LGBTQ efforts. According the Huffington Post (1/5/17),

“The 77-year-old entrepreneur, who is the chairman of the Anschutz Corporation, is listed as a key ‘enemy of equality’ in an infographic produced by the Washington, D.C.-based LGBTQ advocacy group Freedom for All Americans. The infographic indicates that Anschutz has donated thousands of dollars to the Family Research Council, the Alliance Defending Freedom and the National Christian Foundation, all of which have been staunch opponents in the fight for LGBTQ equality, through the Anschutz Family Foundation.”

This has been disputed by the Anschutz Foundation CEO. At the very least, esposure of this possible connection may have caused Anschutz to withdraw support form anti-LGBTQ groups. This has little do do with Gorsuch per se, but as background, we can see that he hangs with, and supports, the most conservative groups and folk. That together with his anti-Liberal screen regarding judicial legislating places him firmly at the borked end of the judicial spectrum, at least.

Here is some background (from a backgrounder compiled by a group of experts) on his positions in various important areas, provided in a white paper by :

Gorsush on The Environment

In an August 2016 concurring opinion to a case involving residency for undocumented immigrants, Gorsuch wrote a “blistering” 23-page critique of the Chevron Doctrine, which he believes gives far too much power to administrative agencies like the Environmental Protection Agency.

The Chevron Doctrine allows judges to defer to administrative agencies’ interpretation when the law as written by Congress is “silent or ambiguous.” The doctrine arose from the 1984 Supreme Court decision Chevron v. Natural Resources Defense Council and is frequently cited in litigation regarding environmental regulations. In his work on the 10th Circuit, Gorsuch has upheld environmental regulations in at least two instances. In 2015, as part of a three-judge panel, Gorsuch upheld Colorado’s renewable energy standard in a lawsuit filed by the Energy and Environment Legal Institute. He argued that no in or out of state fossil fuel producers would be disproportionately disadvantaged or advantaged by the standard since “all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally.” Gorsuch further argued that whether the mandate raised energy prices was unimportant since Colorado voters had approved the standards with ‘overwhelming support” and were “apparently happy to bear” potential increases in electricity prices.

** ADVANCE FOR WEEKEND EDITIONS MAY 10-11 ** A raw materials storage pond lies in front of the USMagnesium production facility Tuesday, April 22, 2003 in Tooele, Utah. Magnesium is brewed from mineral-rich water baked for years in solar ponds. The smelter on the remote Great Salt Lake western shore ranked No. 1 on a government list of industrial air polluters for five years, a branding its executives disputed but found hard to counter. They're also fighting federal allegations of stealing minerals -- skimming concentrated brines from public lands inundated by an overflowing Great Salt Lake.  (AP Photo/Steve C. Wilson)

** ADVANCE FOR WEEKEND EDITIONS MAY 10-11 ** A raw materials storage pond lies in front of the USMagnesium production facility Tuesday, April 22, 2003 in Tooele, Utah. Magnesium is brewed from mineral-rich water baked for years in solar ponds. The smelter on the remote Great Salt Lake western shore ranked No. 1 on a government list of industrial air polluters for five years, a branding its executives disputed but found hard to counter. They’re also fighting federal allegations of stealing minerals — skimming concentrated brines from public lands inundated by an overflowing Great Salt Lake. (AP Photo/Steve C. Wilson)

In 2010, Gorsuch ruled against a U.S. District Judge that had exempted a Utah magnesium plant from hazardous waste disposal as outlined in the Resource Conservation and Recovery Act (RCRA). Gorsuch argued that since the EPA had never issued a definitive interpretation, the agency could reinterpret an ambiguous regulation without public notice and comment. In 2016, Gorsuch and another 10th Circuit Judge denied the Obama Administration’s request to fast-track a reconsideration of a fracking rule decision, but also denied an industry request to throw out the administration’s appeal all together.

Gorsush on Public Lands

In 2009, the state of Wyoming asked the 10th Circuit Court of Appeals to essentially block a National Park Service proposal to limit the number of snowmobiles in Yellowstone National Park. A U.S. District Court judge had previously set the snowmobile cap at 720 per day, but the NPS wanted to decrease the number to 318. Gorsuch was skeptical that the 10th Circuit had authority to stop the agencies’ rule and ultimately ruled in favor of the Park Service. In 2011, Gorsuch ruled that the U.S. Forest Service was not violating the law by charging visitors to access Mount Evans, a popular hiking site in Denver, CO. However, Gorsuch did suggest that the “[fee] might well be susceptible to a winning challenge as applied to certain visitors, perhaps even the plaintiffs themselves.”

yeild-1-580x249In a 2014 decision, Gorsuch ruled that Entek Energy could legally cross private land to make use of an oil and gas well nearby. The suit was initiated by the surface rights owner, Stull Ranches, which was concerned about the effect of the drilling operations on the grouse. Gorsuch suggested that he could “certainly understand [Stull Ranches] point of view” but suggested that its efforts “would be better directed to legislators than courts.”

Gorsush on Education

In 2013, Gorsuch ruled that a Colorado school district had to pay tuition for a special-needs student to attend a private, out-of-state school as directed by the federal Individuals with Disabilities Education Act (IDEA). IDEA requires public schools to provide specialized education at the school or compensate parents for tuition at a school that can meet their child’s needs. Gorsuch stated, “The defendant school district failed to provide Elizabeth with a free and appropriate public education. Her private placement was essential to ensure she received a meaningful educational benefit, and her private placement was primarily oriented toward enabling her to obtain an education.” Prior to 2014, Gorsuch was on the Board of Directors at the Boulder Country Day School, a private Pre-K-8 school in Boulder, Colorado. Gorsuch was an adjunct professor at the University of Colorado Law School as recently as 2014.

A half-dozen protestors holds signs outside Hobby Lobby in Duluth on Wednesday morning, July 2, 2014 to protest the company’s winning of its appeal to not comply with the Affordable Health Care’s contraception mandate. Bob King / rking@duluthnews.com

A half-dozen protestors holds signs outside Hobby Lobby in Duluth on Wednesday morning, July 2, 2014 to protest the company’s winning of its appeal to not comply with the Affordable Health Care’s contraception mandate. Bob King / rking@duluthnews.com

Gorsush on Reproductive Freedom, Religion, and Civil Rights

Gorsuch sided with Hobby Lobby and Little Sisters of the Poor in their cases challenging the contraceptive mandate of the affordable care act. In his book about assisted suicide, Gorsuch wrote “In Roe, the Court explained that, had it found the fetus to be a ‘person’ for the purposes of the Fourteenth Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.” SCOTUS Blog noted that Gorsuch “would be a natural successor to Scalia in adopting a pro-religion conception of the Establishment Clause” of the US Constitution. Although Gorsuch has not decided cases directly related to LGBTQ issues, he specifically mentioned gay marriage in a National Review opinion piece about using courts to advance civil rights. Gorsuch wrote “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

Gorsuch on Criminal Law

Gorsuch is expected to follow Scalia’s interpretation of criminal laws to the advantage of criminal defendants, and in his handling of death penalty cases. SCOTUS Blog reported that a Gorsuch appointment would be “very unlikely to make the court any more solicitous of the claims of capital defendants.” Additionally, SCOTUS Blog observed that “Gorsuch, just like Scalia, is sometimes willing to read criminal laws more narrowly in a way that disfavors the prosecution – especially when the Second Amendment or another constitutional protection is involved.”

Why it could be worse

This is a two edged sword, and I don’t have much to offer you to make you feel better.

1) Gorsuch would replace a very conservative judge. So replacing a very conservative judge with a very conservative judge is not as bad as replacing a liberal judge with a very conservative judge.

2) Because of #1, Democrats will fight less hard to stop this appointment. What Democrats should do is to respond to what the the Republicans did last time there was a SCOTUS appointment. Don’t let this appointment go through. Let’s wait until we have a president and a strong Senate majority from the same party at the same time to appoint any more judges. Then, let’s hope that doesn’t become Trump and a huge Republican majority in the Senate!

I refer you back to the quote at the top of the post. That was August, 1967, when Kissinger said that. (Gorsuch was at Harvard Law much later, contemporary with me and Barack Obama. But I was across the street in the University Museums, not studying law!)

Anyway, I thought it would be interesting to look up what was going on that month, the month Kissinger said that, as well as the same month in the year of Gorsuch’s graduation from Harvard Law. Turns out to be pretty interesting. Here it is from Wikipedia:

1967


hist_usa_20_1967_civil_rights_race_riots_pic_newark_riots_1967August 1 – Race riots in the United States spread to Washington, D.C.
August 9 – Vietnam War – Operation Cochise: United States Marines begin a new operation in the Que Son Valley.
August 21 – The People’s Republic of China announces that it has shot down United States planes violating its airspace.
August 23 – Jimi Hendrix’s debut album Are You Experienced is released in the United States.
August 25 – American Nazi Party leader George Lincoln Rockwell is assassinated in Arlington, Virginia.
August 30 – Thurgood Marshall is confirmed as the first African American Justice of the United States Supreme Court.

1991 (selected)

Boris_Yeltsin_22_August_1991-1August 6 – Tim Berners-Lee announces the World Wide Web project and software on the alt.hypertext newsgroup. The first website, “info.cern.ch” is created.
August 7 – Shapour Bakhtiar, former prime minister of Iran, is assassinated.
August 8 – The Warsaw radio mast, the tallest construction ever built at the time, collapses.
August 13 – The Super Nintendo Entertainment System (or “Super Nintendo”) is released in the United States.
August 19+ – Dissolution of the Soviet Union:
August 25 – Serbian aggression (Yugoslav People’s Army and Chetniks) starts
August 25 – Student Linus Torvalds posts messages to Usenet newsgroup about the new operating system kernel he has been developing.
August 29 – Boris Yeltsin bans and dissolves the Communist Party of the Soviet Union.

August, 2017:

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Comments

  1. #1 Kevin O'Neill
    United States
    February 1, 2017

    I would add one remark: highlighting a quote does not mean one endorses the worldview expressed in the quote. Sometimes we highlight a quote because we find it illuminating of how some people think and want others to recognize that these thoughts – no matter how repugnant – do exist.

    I don’t know if this is the case with Gorsuch, but a principled conservative could easily use this quote to chastise unprincipled conservatives.

  2. #2 Kevin O'Neill
    February 1, 2017

    An example from an old user page of mine; there is a quote on the page:

    Why, of course the people don’t want war…But, after all, it is the leaders of the country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship…Voice or no voice, the people can always be brought to do the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger.” — Hermann Goering at the Nuremberg Trials after WWII

    Now, I recognize this to be true and that it has been employed throughout much of our modern history, but it is completely wrong to infer that I endorse this view or tactic. I highlight it to inform others of an evil that I see.

  3. #3 Wow
    February 1, 2017

    Kevin, the point is that your point would be IRRELEVANT if he were an Obama pick as far as the Republicans were concerned.

  4. #4 Wow
    February 1, 2017

    And the rest of the post is much more than just a quote. But it would still be irrelevant to the point that the Rs would never have accepted that quote from a D pick, ALWAYS taking it at worst face value.

  5. #5 Kevin O'Neill
    United States
    February 1, 2017

    Wow – You need to always quit rooting for the home team and learn to use your critical faculties better. Just because someone agrees with you on something does not mean they have arrived there via correct reasoning. Gorsuch’s H.S. yearbook is irrelevant – with or without the quote.

    Your argument that Rs would do it so it’s fairgame for Ds to do it is an unprincipled stance to which I don’t subscribe. As is often the case in judicial nominations, many things are written *exploring* issues – sometimes as a devil’s advocate.

    There is also the fact that people’s beliefs can evolve. Holding someone to what they believed in H.S. or college as proof of what they believe today is simplistic and often wrong.

    We, and you, can do better than that.

  6. #6 SteveP
    February 1, 2017

    Look at the smirk on President Pussygrabber! PP likes to cause pain. It should be apparent. And Neil Gorsuch probably has that streak too. His predecessor Scalia certainly had it in spades. If seems to be part of conservative philosophy that they consider it their God given right to cause pain. Torture, war, punishment, eternal hell, unfairness, injustice, vote suppression, pain. The main symbol of their main religion is an instrument of torture. Destroying the hope of the younger generation and idealists for a better world is pain that people like PP like to inflict. The fact that Gorsuh quoted that particular Henry Kissinger quote, whether in jest or admiration or some combination of both, points to an inner desire to cause pain in others. .It is there. By the time you are in Harvard Law, you are no longer a quirky adolescent, you are somewhat fully developed. Kissinger famously and cruelly mocked Robert MacNamara for feeling badly about the millions of people who suffered and died in the execution of their stupid war. Kissinger is, IMO, a certifiable psychopath. BTW, anyone here old enough to remember what Kissinger replied to the press when, right after Nixon appointed him Secretary of State, he was asked how he would like to be addressed ? “Your Excellency” he responded. As people died en masse in SE Asia. Psycho through and through.

    Civility is, to a large extent, about not causing unnecessary suffering. Does it not make sense then that a sadist like PP would hate “political correctness”, that derogatory seven syllable hate filled phrase used by sadists to describe what the rest of us call civility or good manners?

    Scalia was putridly sadistic. This guy may or may not be in the same league. He probably is. He’s a good conservative.

    t. And There seems to be little if anything that PP has done in the political arena that is not done

  7. #7 SteveP
    February 1, 2017

    And there seems to be little if anything that PP has done in the political arena that is not done with a lot of delight and display revolving around causing pain.

  8. #8 Wow
    February 1, 2017

    “Wow – You need to always quit rooting for the home team and learn to use your critical faculties better. ”

    You need to stop insinuating an error when no such error exists.

    Re read my post and this time stop looking at this being “He’s my homie? Why is he disagreeing with me??!?!”.

  9. #9 Wow
    February 1, 2017

    “Your argument that Rs would do it so it’s fairgame for Ds to do it ”

    THat wasn’t my argument. Try again.

    If you can’t figure out what it was, maybe you should try asking next time.

  10. #10 Kevin O'Neill
    United States
    February 1, 2017

    WOW – regarding #9: you wrote and I quote: “…your point would be IRRELEVANT if he were an Obama pick as far as the Republicans were concerned.” I.e., the GOP would do it so don’t criticize dems for doing it. If that’s not the gist of your thought here, then what *was* the point?

    Regarding #8: It is an error to hold or insinuate that a judicial candidate’s H.S. yearbook is indicative of their judicial values. So I point out the error and you double down on it? Apparently you believe the YB has some value.

  11. #11 Doug alder
    Canada
    February 2, 2017

    http://www.dailymail.co.uk/news/article-4182852/Trump-s-SCOTUS-pick-founded-club-called-Fascism-Forever.html

    Supreme Court Justice nominee Neil Gorsuch founded and led a student group called the ‘Fascism Forever Club’ at his elite high school, DailyMail.com can reveal.

    The club was set up to rally against the ‘left-wing tendencies’ of his professors while attending a Jesuit all-boys preparatory high school near Washington D.C.

    The name may be inconvenient for a Supreme Court nominee facing a tough confirmation battle. However it also shows the depth of Gorscuch’s right-wing credentials – and his penchant for mischief while attending his exclusive prep school in the 1980s.

  12. #12 Wow
    February 2, 2017

    “…your point would be IRRELEVANT if he were an Obama pick as far as the Republicans were concerned.”

    … I.e., the GOP would do it so don’t criticize dems for doing it…

    Isn’t my thought, it was yours. You should, and I quote:

    Need to always quit rooting for the home team and learn to use your critical faculties better.

    “If that’s not the gist of your thought here, then what *was* the point?”
    The one written in the actual text.

    Nowhere does it say you shouldn’t criticise Ds for doing it, but point out that to the Rs that quote alone would be enough.

    YOU came up with the “don’t criticise”.

    I then pointed out that greg here did a hell of a lot more than post just the quote in the yearbook.

    You don’t read 99% of what greg wrote, added 50% to what I wrote and you think that I was in the wrong….???

    “your point” was: All you have is a quote and you can quote someone as their quote being relevant without agreeing with the person, and all you have is a quote.

    THAT WOULD NOT HAVE MATTERED to the Rs. They would have seen the quote and screamed about the pick. Hell, they could have seen the NAME of someone “on the left” and, even if it were the most right wing friendly quote, INSIST that it was some proof of being an agent for Communist Chynya (because they like russa now). The actual quote irrelevant.

  13. #13 SteveP
    February 2, 2017

    It is pretty obvious that K.O.’s bullshit detectors aren’t working. Gorsuch has that whole fascism thing going on, and so he is, of course, the ideal selection for presidentpussygrabber.What is going on it this….It is all about the “right” of elites to protect themselves from the onrush of untutored “losers” who all, somehow, now have the right to vote.

    The Republican elephant has had a fascist underbelly for a long time now. And oh by the way, it is female, and it is giving birth to a fully formed fascist gubmint. And y’all are going to have to deal with “it” for the rest of your lives if you don’t abort the monster now.

    Call your Senator, Call your congressman. Help give them a spine, Murkans. March. Demonstrate. Resist.

  14. #14 MikeN
    February 2, 2017

    Kevin, I agree with Wow, you are missing the point. They aren’t actually using it against Gorsuch(and there is more in that yearbook). However I don’t think it would be as strongly used by Republicans as some think. They couldn’t even muster up unanimous opposition to a tax cheat as Treasury Secretary, with a quarter of them voting for Geithner.