Et Tu, Gorsuch?

No matter what goes wrong during President Donald Trump’s time in office, his die-hard supporters will tell you that it’s all worth it for the judges he appoints. He put conservative originalists Neil Gorsuch and Brett Kavanaugh on the Supreme Court, and that alone is enough to satisfy the fans.
The Supreme Court’s recent ruling on the case of Bostock v. Clayton County, however, has soured some of the faithful on Gorsuch. After hearing the case the Supreme Court concluded that the Civil Rights Act of 1964 says lesbians, homosexual men and transgendered people cannot be fired because of their sexual activities or what sex they consider themselves to be, which is making many religious right types unhappy, and Gorsuch not only joined the court’s four liberal justices in the majority but also wrote the opinion.
Some of the religious conservatives who support the conspicuously irreligious president will admit they oppose the decision because they want to be able to fire any sexual deviants they might have inadvertently hired, and needlessly worry that churches won’t have the exceptions they’ve always enjoyed, but others couch their complaints in terms of judicial overreach. We don’t see any reason for anybody to fire anyone for their private sexual conduct or their opinions about their sex, but there is some merit to the argument about the court amending laws by judicial fiat.
The Civil Rights Act of 1964 makes no mention whatsoever about homosexuality or transgenderism, which is not surprising given the time when it was passed. Back in ’64 gay rights weren’t a big issue, and nobody had even heard of transgenderism, and if the bill did include such language it would have been so controversial the bill wouldn’t have passed. A more up-to-date Congress could have added those protections to the law, but has declined to do so, so our strictly constitutionalist sensibilities are also offended by any court usurping the legislature.
In his writings and speeches and past rulings Gorsuch has long claimed to be a “textualist,” meaning that the believes courts should interpret a statute by it’s plain and not infer any intentions the lawmakers might have had, and certainly not assume what they might have thought after 56 years of social evolution, so his siding with the majority in this case is surprising. Our reading of the lengthy opinion doesn’t provide us with a convincing explanation for his change of mind.
Conservatives have long been disappointed with Republican-appointed Supreme Court justices, going all the way back to President Dwight Eisenhower’s choice of Chief Justice Earl Warren, who presided over a court that expanded civil rights and limited police powers, and continued with President George W. Bush’s choice of Chief Justice John Roberts, who infuriated conservatives by declining to find “Obamacare” unconstitutional. Gorsuch is just the latest in a long line of Republican appointees who have disappointed Republicans.
Should Gorsuch get back to his textualist roots, though, he might wind up disappointing Republicans even further. Trump has a number of legal cases involving everything from his immigration policies to his tax returns and alleged cases of sexual misbehavior winding their way through the court system, and a strict textualist might rule against him in several of those cases. There’s a nearly 100-year-old and long upheld law that lets Congress look at any American’s tax return, for instance, and the text does not include any exception for presidents, so it will be interesting to see how the Trump appointees rule in that case.
There are countless federal statutes that are very liberal, and the Constitution also has some very liberal language, and a sincerely originalist and textualist jurist would leave it to the legislative and executive branches to rectify that, even if the Trump era sort of conservatives would prefer that the courts bang a gavel and return America to 1964, or better yet 1954, before all that civil rights legislation and litigation. Most people don’t care so much about constitutional arguments and just want the courts to deliver their preferred policy, so our guess is that Republicans will once again be disappointed in their party’s Supreme Court picks, and Trump supporters will be disheartened.

— Bud Norman

Order in ‘da Court ‘Cause Here Come ‘da Judge

After a long and contentious history with the American judicial system as an independent businessman, President Donald Trump is now dealing with the courts in a similarly confrontational style. So far it seems to be yielding the same mixed results as back in his private sector days, when he won an anti-trust lawsuit against the National Football League but was awarded only one dollar in damages and paid $25 millions to the students of his scam Trump University but admitted no fault and seemed to suffer no significant publication relations problem, or the thousands of suits by contractors claiming they’d stiff or two wives who said they’d been done wrong or the six corporate bankruptcies where Trump always seemed to come out ahead. Less than a month into Trump’s administration his executive order temporarily banning travel into the United States from seven designated Muslim-majority has been stayed by a federal court, Trump has “tweeted” in response that he preemptively blames the “disgraceful” decision of the “so-called judge” for a future terror attack, the next appellate level has upheld the decision by a 3-0 vote, Trump in turn “tweeted” “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT RISK!,” and at this point it remains to be seen if the angry capital letters and angrier exclamation mark will sway the Supreme Court once the decision inevitably ends up there.
Trump might well wind up prevailing by that point, for so far as we can tell the law does allow the president wide authority to ban just about anyone he wants for whatever reason he might come up with from entering the country, and there are arguably good reasons for banning people from the named countries, and the general gist of the order seems well within those established legal parameters, and we’d hate to think that a Supreme Court would be either intimidated or spitefully defiant of some petulant presidential “tweets.” There’s enough arguable stuff about banning already-vetted green-card holders and heroic military assets and all the other dubious aspects of the devilishly detailed and beyond-the-gist implementation, though, and some sort of split decision strikes us as most likely. Whatever the merits of his case, though, there’s something disheartening and demoralizing to a conservative sensibility about the head of the executive branch using such language as “disgraceful” and “so-called” about a member of the judicial branch.
Even Trump’s much-lauded choice for the Supreme Court was quoted as saying it was “disheartening” and “demoralizing,” which set off yet another of those seemingly endless subplots in the Trump reality show. By all the glowingly positive and scathingly negative accounts Judge Neil Gorsuch seems very much the sort of Constitutional originalist jurist that Trump promised to such skeptical Republicans as ourselves during his campaign, and even The Washington Post has recalled a reassuringly reasonable dissenting opinion he wrote about a middle-schooler who was handcuffed and jailed for making flatulent noises during a gym class, but of course there’s enough opposition to make 60 votes difficult and getting him confirmed with just 51 would be something nobody real wants, so of course there’s much spinning involved. The first storyline trotted out was that Gorsuch hadn’t really said that, and that quoted source Connecticut Sen. Richard Blumenthal had only said that Gorsuch said that because he’s a Democrat. Trump “tweeted” that Blumenthal had also lied about his heroic service in Vietnam, which is true, even if that does not prove that Blumenthal was lying in this case and leaves unmentioned the equally irrelevant that Trump has also told a few lies in his time, but when named Republican sources in both Congress and the administration confirmed the statements the White House Press Secretary insisted Gorsuch was speaking in general terms about disparagement of the judicial branch and certainly not about anything Trump had said.

Despite such assurances, many of Trump’s so-loyal-he-could-shoot-someone supporters were expressing their indignation about Gorsuch’s alleged disloyalty in talk radio shows and countless comments across the internet. What with The Washington Post admitting a begrudging respect his for reasonability there’s some suspicion that Gorsuch will be another one of the milquetoast Republican appointees who wind up giving a pass to Obamacare and otherwise disappointing the base, perhaps setting off a right flank in the fight against Gorsuch’s nomination. We’re still as irked as the next Republican about Chief Justice Roberts and that damnable Obamacare decision, and our general disappointments with milquetoast Republican nominees goes way back even before our birth to Ike’s choice of Earl Warren as a Chief Justice, but we don’t expect this Gorsuch guy will withstand a challenge from the right. He owes his loyalty to the Constitution rather than to Trump, his apparent preference for the respectful language that has long characterized even the most hard-fought legal questions seems impeccably conservative by the pre-“burn-it-down” definition of the term, and for Trump to withdraw the nomination he would have to admit a mistake.
Another popular theory is that Gorsuch’s disputed comments were purposefully leaked to reassure not only the opposition over at The Washington Post but also such skeptical Republican hold-outs as ourselves and the public at large that Gorsuch deserves the eight Democratic votes that would get him confirmed without resorting to the mere 51 votes that would cause such problems down the road. This seems plausible enough in our day and age, when a Republican Senator’s dad was in on the Kennedy assassination and the latest two presidencies should have been terminated according to the latest president, who won despite the election being rigged, and if so we’ll give credit Trump credit for being shrewd. Based on everything we’ve learned about their lives we like this Gorsuch fellow a lot better than we do Trump, and our weary eye on the news had concluded the leaked remarks were Gorsuch showing the frankness that Trump is celebrated for and the reasonable Trump rarely summons, and that he winds up confirmed by 60 votes and provides a necessary check and balance on both legislative and executive craziness for decades to come.

— Bud Norman

The Supreme Court and the Resulting Squabbles

So far as we can tell from the initial news reports, President Donald Trump’s Supreme Court nominee Neil Gorsuch seems like our kind of guy. By all accounts, including those of The Washington Post and The New York Times and other unenthused media, federal appeals judge Gorsuch is a staunch originalist who insists on a plain sense reading of the Constitution and has a personal reputation that has thus far been unblemished by decades in public life, which is basically what we’re looking for in a Supreme Court Justice. We expect that the Democrats will come up with something, and that quite a fuss about it will ensue in the confirmation process, but at this point we are cautiously hopeful that he will take his seat on the court and do a fine job there.
It will be interesting to see what the Democrats will come up with. The initial reports from even the most unenthused media are for now scandal-free, they all acknowledge his very diplomatic stye of adjudicating and exquisitely careful use of the English language, and he’s a rather handsome and reasonable seeming fellow who doesn’t sport that creepy facial hair or menacing scowl that made President Reagan’s unconfirmed nominee Judge Robert Bork so easy to “bork.” The opposition will therefore probably focus on his staunch originalism and its crazy notions about interpreting the Constitution according to a plain sense of reading of its text, rather than finding some convoluted reason that the Constitution insists on whatever the left’s favored position of the moment might be, but after the last election they’re hard pressed to make the argument.
For longer than Gorsuch has been in public life we’ve tried to reassure our liberal friends that a truly conservative Supreme Court Justice should not trouble them, as he is by definition committed to upholding both the letter and spirt of a radically liberal Constitution. We like to cite the example of the great Justice Hugo Black, the former Ku Klux Klan bigwig appointed by President Franklin Roosevelt to appease the substantial southern redneck portion of the New Deal Coalition, who went on to be one of the heroes of the Supreme Court’s 1950’s civil rights revolution. In our teenaged years we worked at the Supreme Court with some savvy veteran black messengers who had daily dealings with Black and assured us he never did get over his Klan days when it came to dealing with black people, but the old cracker’s hidebound adherence to a plain sense reading of the 14th amendment compelled to him vote with the Warren Court on most of the big civil rights, even if he did think that America did a damned fool thing in ratifying it, and to write that common sense concurring opinion to Brown v. Topeka Board of Education that is so much more convincing than the wimpy social-science majority opinion.
A truly conservative Supreme Court would uphold the right of a citizens group to air an anti-Hillary Clinton movie even it did get some money from the evil Koch Brothers, as the Supreme Court did in the still hotly-debated Citizens United Case, but by now it would also let Lenny Bruce or any other foul-mouthed comedian, no matter how Democratic, get away with it, so for now we cautiously entrust the First Amendment to the Republicans. The Republicans are at least as staunch on the Second Amendment as on the First, which will surely enrage the Democrats further, but they’ve lately been losing in the courts on that and will have a harder time in the court of gun-owning public opinion> For the past 40 years or so the right has been skeptical about those penumbras and legalistic whatnots that yielded a constitutional right to abortion, which enrages the Democrats further yet, but a truly conservative Supreme Court would overturn a fundamental right to abortion without asserting a fetal right to life and send it all back to the states where such measures were once decided, and if the Democrats really have a winning issue it would work out to their benefit, and although there would be a lot of fuss involved it’s not as if Roe v. Wade ever ended the issue. A truly conservative Supreme Court wouldn’t impose a liberal agenda by judicial fiat, but it wouldn’t stop the people from doing such foolish things through the constitutional process.
By the end of it the Democrats will probably be opposing Gorsuch simply because he’s Trump’s nominee, and we have to admit that’s somewhat compelling. We don’t trust Trump any further than we would toss his fat orange ass, as the local saying goes, but we always figured that he could never back out of those promises he made regarding the Supreme Court. The most persuasive argument Trump’s campaign offered to reluctant Republicans was that his Supreme Court nominees would at least be better than what Democratic rival Hillary Clinton would offer, which was pretty much indisputable, and we figured he was savvy to realize that although he could indeed shoot someone on Fifth Avenue and not lose any supporters that betraying the Supreme Court promise would have been politically disastrous. For all our misgivings about Trump we like the pick based on what we know so far, and cautiously hope Gorsuch will go on to overturn that awful Kelo decision that Trump once tried to use to evict an elderly widow and draw a line on executive actions by either party’s president and otherwise uphold our radically liberal Constitution according to truly conservative principles.

— Bud Norman