Gorsuch Should Get A Hearing — We Can Always Shamelessly Obstruct Him Later

I’m going to attempt that most futile of endeavors: taking a nuanced position on the internet.

Neil Gorsuch is an eminently qualified jurist who has been appointed to a stolen Supreme Court seat. He would likely serve with dignity and honor in a position he’s received through dishonor and lawlessness. He’s the white guy who gets the house after a black family has been redlined out of the community. Whether he acknowledges his privilege or not, he’s the beneficiary of unfairness visited upon others.

Senate Republicans have reduced and diminished the Supreme Court into mere politics by other means. Democrats have every right to play by those new rules. Senate Democrats should filibusterer this nomination. “Saving” the filibuster for another day is beyond dumb. Three reasons for that:

1. If you are waiting for something more important than a lifetime appointment to the Supreme Court, you don’t understand what the word “important” means.

2. Republicans are threatening to use the “nuclear option” and end the filibuster. Call their bluff. For once in your f**king lives, Senate Democrats, STAND THE HELL UP and force the other side into a tough choice.

3. If you’d rather fight over Anthony Kennedy or some other nomination fight, what do you think Republicans will do when they are one seat away from actually having enough votes to overturn Roe? You are strong now: when you’re up against a president who didn’t even win the popular vote, when half a million women are marching in the streets, NOW is the time to fight.

It would be right to fight Gorsuch on general principles. But (NUANCE ALERT) he should get a hearing first. He should get a full confirmation hearing before Democrats stand on principle. Not for optics, not because he might say something stupid that torpedoes his candidacy, but because he actually might have something important to say.

The culture war battles are simply not on the front lines of what we need to be concerned about over the next four to eight years. Yes, a woman’s right to choose is soon to be under direct attack. Yes, LGBT rights are precarious and could be stripped away by any pissed off baker. Yes, white people would sooner strip your ability to call them “racist” than do anything about their racism. The night is dark and full of terrors.

Gorsuch is exactly the kind of guy Mike Pence would have nominated, and if Mike Pence was president I’d say obstruct Gorsuch even if you have to chain yourself to the columns on First Street. Pence and Gorsuch would work hand-in-glove to shove the government’s hand right up your womb.

But Mike Pence is not the president. Donald Trump is. And so we have a new suite of concerns. From Radley Balko of the Washington Post:

As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch.

I’m not as confident as Balko is in Gorsuch’s commitment to restrict executive power. Yes, Gorsuch doesn’t like Chevron deference, and yes, scaling back Trump’s administrative branches sounds… useful just at the moment. But Chevron deference gets treated like a huge executive power trip by FedSoc types, and I’ve never bought it. Somebody has to interpret Congressional directives. Congress is not always clear, often on purpose in order to get legislation passed. Chevron deference means that we trust the professionals at the agencies to make those calls in real time. Lack of deference means we substitute the judgements of courts made after the fact. Just because Gorsuch thinks his interpretation is more valid than the agency interpretation doesn’t mean his interpretation will be any good.

That said, I’d like to hear Gorsuch’s answers on how he squares his judicial theory with executive power. Quite frankly, I’d like to hear all of the justices, because we simply don’t know where they will stand on the kinds of things Trump has already done and is likely to continue to do. Ain’t never been a case about EMOLUMENTS, people.

I’m pretty sure “originalists” like Gorsuch see no problem with the Muslim Ban — those people tend to think that the only way of making the Constitution less racist and sexist is to amend it, as opposed to interpreting it as something better than a wishlist from slaveholders. But I have no real idea what he thinks about sanctuary cities, and I’d guess he’d say that the president can’t just pull funding from such cities without an act of Congress.

People are going to ask Gorsuch what he thinks about Roe. I’m interested in what he thinks about Korematsu, right now. What does he think about torture? Like Scalia before him, he seems to be a defender of the 4th Amendment, but he’s also big on giving policy officers qualified immunity so they can violate the 4th Amendment, bust a cap in my black ass, and escape punishment. How does he square that circle?

I can imagine a Gorsuch hearing that illuminates some of these issues. I can imagine a version of Gorsuch that says “I will help you stop Trump these next four years, after that we’ll go back to our regularly scheduled, guns and Jesus proceedings.” I can imagine that being a good deal. OR, I can imagine a version of Gorsuch that’s, “Once again, Trump isn’t as stupid as he looks.” Or maybe “We conservatives only stand up to executive power when black people wield it, duh.”

I don’t know which version is more likely to be true, and the only way to get more information is to hold a public hearing.

THEN, liberals can obstruct him. Obstruct the s**t out of him, if they feel like it. He could be judicial Doc McStuffins, and he’d still be an illegitimate justice appointed to a stolen seat. He’s absolutely a hill worth dying on.

But we might have even badder fish to fry. We don’t know, yet, if Gorsuch is going to help that effort, or not. We need to find out.

Even Stalin could be a friend when your fight is with Hitler.

In Gorsuch, Trump gave Democrats a gift. They should take it. [Washington Post]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.