Jason C. McLean and Dawn McSweeney discuss the news that the US Supreme Court plans to overturn Roe v. Wade and what it might mean for Canada & the Federal Conservative Party Leadership Race plus try and find some lighter news.
On January 31, 2017 US President Cheeto-Head named Judge Neil Gorsuch to the Supreme Court. The nomination fulfills Cheeto-Head’s promise to name a conservative justice “in the mold of Scalia” if elected president (legally or illegally). Since so much of what the Orange Racist Misogynist Tax Evader has done is questionable at best, it is time to take a serious look at the man he has appointed to the highest court in the United States.
Neil Gorsuch is in many ways the embodiment of what conservative Christian Republicans think a judge or politician should be. He is a white middle aged male who Is devoutly Christian, but not Catholic (his family are Episcopalian). He is well spoken, looks good in a suit and tie, and while he and his college sweetheart wife and two kids raise horses, chickens, and goats at their home in Colorado, they are no rednecks.
His family has a history of serving Republican presidents. Gorsuch’s mother, politician and lawyer Anne Gorsuch Burford, was appointed by former president Ronald Reagan to run the Environmental Protection Agency. For Republican climate-change deniers, Gorsuch Burford was ideal for she slashed the EPA’s budget, cut most clean water regulations from the books, and filled vital positions within the Agency with people from the very industries it was supposed to be checking. The scandals resulting from her actions led to her resignation in 1983.
Gorsuch’s resume is impressive. He is a graduate of Columbia, Harvard, and Oxford. After a couple of clerkships with conservative judges, he worked in private practice at a prestigious law firm in Washington DC for ten years and eventually ended up as a Federal Appelate Judge based in Colorado. At the same time Gorsuch has served as an occasional adjunct law professor at the University of Colorado.
There are also a lot of concerns about Judge Gorsuch.
People are worried that he is anti woman and would choose religious freedoms over people’s right to self determination.
There is a lot of evidence to support this worry.
While at Oxford, Gorsuch studied under Professor John Finnis, an Australian legal scholar who is considered an expert on natural law. After his studies, the Gorsuch and Finnis remained close. This seems harmless, but it’s not when you consider that Gorsuch’s mentor wrote about “the evil of homosexual conduct” in 1994 and has been branded a hatemonger by many.
As a judge, Gorsuch has a history of favoring religious freedoms over people’s right to health care and self determination. In the famous Hobby Lobby and Little Sisters of the Poor cases involving for-profit corporations demanding religious exemptions from the contraceptive mandate of the Affordable Care Act requiring corporate health plans to cover contraceptives for female employees on penalty of fines for refusal, Gorsuch sided with the corporations. In the Little Sisters of the Poor decision, he wrote that it was:
“An issue that has little to do with contraception and a great deal to do with religious liberty … When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes substantial burden on that person’s free exercise of religion.”
Though Gorsuch has never decided an abortion case, he did publish a book called The Future of Assisted Suicide and Euthanasia in 2009 and many argue that the views expressed in it could easily transfer to abortion. In his book he says that human life is “fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
Whether this view actually extends to abortion remains to be seen, but it has caused enough concern that the National Institute for Reproductive Health has called his appointment “an extension of the Trump administration’s attack on women’s rights,” and Senator Bernie Sanders tweeted on January 31, 2017 that:
Judge Gorsuch must explain his hostility to women’s rights, support of corporations over workers and opposition to campaign finance reform. https://t.co/b3ds4egnvv
— Bernie Sanders (@BernieSanders) February 1, 2017
Despite his worrisome track record on certain issues, Gorsuch does show promise for two fundamental reasons.
First, he is outspokenly against excessive criminalization. That means that he thinks there are too many criminal laws punishing ordinary behavior on the books.
In 2013 he gave the 13th Annual Barbara K. Olsen Memorial Lecture in which he points out that too many laws violate people’s rights to fair notice to the point that “criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity.”
Neil Gorsuch’s legal decisions reflect this belief as he often sides with defendants in criminal cases. This bodes well when it comes to issues of race for African Americans and Hispanics are excessively targeted and prosecuted in the United States.
Another reason to hope is because of Gorsuch’s belief in the judiciary’s role in containing the excesses of Executive Power. He is in favor of term limits for elected officials because “men are not angels.”
Though, like Scalia, he believes in interpreting the constitution from the perspective of its authors. This comes with an understanding of the need to enforce the checks and balances on the legislative and executive branches to save the country from abuse by those who govern it.
Though thus far only lower courts have halted the enforcement of abusive and illegal Executive Orders from the Oval Office, Gorsuch’s reputation as a principled jurist against executive excess suggests that he would not hesitate to rule against the White House if he ascended to the Supreme Court.
Though there is hope for the United States, there is also the danger of a deadlock. Democrats are still bitter about the Senate’s refusal to confirm Judge Merrick Garland, who was named to the Supreme Court by Barack Obama. Like Garland, Gorsuch is mostly respected across party lines, so the question remains whether the Senate will do its job this time, or give the Cheeto Administration the silent treatment.
It wasn’t long after news of Supreme Court Justice Antonin Scalia’s passing hit social media on Saturday that we got an idea of what the Republicans were planning, courtesy of Conn Carroll, Communications Director for Senator Mike Lee of Utah:
What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?
— Conn Carroll (@conncarroll) February 13, 2016
This sentiment was echoed in much more nuanced terms by GOP Presidential hopeful Ted Cruz:
Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.
— Ted Cruz (@tedcruz) February 13, 2016
It is clear that the Republicans, who now control the US Senate, plan to block any Supreme Court nominations current President Barack Obama makes to replace Scalia on the bench. Their motivations are clear and it is possible for them to achieve this goal, with a little over a year to go before the next President is sworn in.
But if they do succeed in carrying out this plan, they may have wished they hadn’t. Nobody knows who the next President will be or which party will have a majority on the Senate.
Republican Dream Scenario is Just a Dream
The GOP is clearly hoping one of their own moves into the White House and nominates a right-leaning candidate which the Senate, still controlled by Republicans, quickly confirms. Now, I know that you have to approach an election with the attitude that you are going to win, but even GOP strategists must realize that their dream scenario is a bit of a longshot.
It’s extremely likely, thanks largely to gerrymandering, that the Republicans will still form the majority in the US House of Representatives, a body that has nothing to do with Supreme Court nominations. They have a likely, though not definite, chance of retaining control of the Senate, too, so there is a decent chance they will retain control of the confirmation process if they succeed in delaying.
When it comes to winning the Presidency, the odds are not in their favour. When a two-term President is still popular at the end of his second mandate, there’s a good chance his party will keep the Oval Office, for at least another term.
George W. Bush was extremely unpopular across the board when he left office, to the point that John McCain didn’t really want him helping out during the campaign. Obama is still loved or at least respected by most of those who voted for him and the people who hate him now hated him in 2008, too.
Also, the Democrats have narrowed their options to two and the debate is pretty much centered on how much to the left of Obama the party should go. The Republican field, on the other hand, is still wide open.
Factor this all in and the possibility of a Republican being able to nominate the next Supreme Court Justice, while not an impossible scenario, is not the likely scenario. So the question becomes: Why would the GOP gamble everything on a bet they very well may lose?
Irrational Fear of Obama or Playing to the Bigoted Base?
Despite all the rhetoric the right throws at him, President Obama is a solid practitioner of incrementalism. Anyone he nominates to the Supreme Court, though perhaps harboring a liberal bias on some issues, would be, by and large, a moderate. Not just that, but someone specifically selected to pass through confirmation by a majority Republican Senate.
FTB’s legal columnist Samantha Gold listed some of Obama’s potential choices. These are all qualified jurists who really don’t scream anything close to radical activist. One of them, David Jeremiah Barron, even once wrote a legal memo justifying drone strikes against US citizens. While this horrifies me, I don’t see why law and order “kill the terrorists at all costs” Republicans would have a problem.
What may make the GOP nervous about confirming some of these names? Could it be the names themselves? Sri Srinavasan and Jacqueline Hong-Ngoc Nguyen both have the qualifications to justify being on the SCOTUS, but they also both have names that don’t sound white, because they’re not. They also both weren’t born in the US.
None of this should matter, but it may matter to the more racist elements of the Republican base. We’re talking about people who care less about the fact that Srinavasan graduated from Stanford Law than the fact that he swore his oath to the circuit court on the Baghavad Gita instead of a Bible.
Now, of course the Republican Party can’t come out and say that racism played a role in their decision to force a delay in the nomination. What they can do, once it becomes widely known that the Thurmond Rule (what they are using currently to justify pushing the nomination to the next President) is not an actual rule and also doesn’t even apply until the last six months of a President’s term, is play the fear and hatred of Obama card.
It’s something they have mastered. Irrational paranoia over a moderate incrementalist. In this case, though, it may give them a result that will make approving an Obama nominee seem like the safe bet.
What Could Happen
Let’s look at a few hypothetical situations that could arise after the Senate Republicans delay filling Scalia’s seat until the next US President is sworn in:
- Hillary Clinton or Bernie Sanders is the next President and the Republicans still control the Senate: The list of potential nominees would be similar, though maybe not that drone supporter guy in the case of a Sanders presidency. All the Republicans accomplished was leaving the court deadlocked for a year with no purpose behind it.
- Clinton becomes President and the Democrats take control of the Senate: She could nominate some of these people but would be free to go with a judge decidedly more liberal.
- Sanders becomes President and the Democrats take control of the Senate: The Republicans freak out, call a lame duck session and try with all their waning power to confirm Obama’s nominee because they know Bernie won’t pick a moderate or even close!
Never mind the fact that the current Republican course of action has them completely and deliberately ignoring their constitutional responsibility to promote an illogical fear of Obama and appease the more racist elements of their base, it also has them throwing everything behind a bet there is a good chance they won’t win.
On February 13, 2016 Antonin Scalia, Justice of the Supreme Court of the United States (SCOTUS) died. He was 79. Instead of reacting with sympathy for Scalia’s family, Republicans began bemoaning the fact that President Obama would most likely choose his replacement before the year is out.
Antonin Scalia was conservative and an influential member of the court. He was anti-abortion, pro death penalty, and against minority rights and affirmative action. His death has resulted in an even four to four ideological split between conservative judges and liberal ones. Obama said that he would soon name Scalia’s successor and the Republicans are having what could only be called a tantrum.
Republicans are demanding that Scalia’s replacement be appointed after the end of Obama’s term in January 2017. Presidential candidate and wealthy racist misogynist Donald Trump has been the most vocal, all but begging the US Senate to “delay, delay, delay”. The fear is that whoever Obama names will be liberal, effectively tipping the ideological leanings of SCOTUS in favor of the Democrats.
Article 2, section 2 of the US Constitution says that the president has the power to appoint judges of the Supreme Court with the advice and consent of the Senate.
The way it works is: the president nominates someone to the Supreme Court, and it’s up to the Senate to confirm the nomination. If a majority votes in favor of the new judge, that judge becomes a member of SCOTUS. If the Senate votes against, the president will have to choose someone else.
Republicans want the Senate to delay the nomination, but the legal foundation for their arguments is a weak one.
Republican Senators are pushing for delays on the basis of the Thurmond Rule.
The Thurmond rule is not actually a law. It’s an informal rule that’s never been entrenched in US law. It originated in the 1960s with segregationist Senator Strom Thurmond who was trying to punish then-President Lyndon B. Johnson for passing the US Civil Rights Act by opposing Johnson’s candidate for SCOTUS. The rule states that a president cannot name a Supreme Court Judge in the last six months of his presidency.
The problem with using this rule is that the Republicans don’t seem to have checked their calendars.
As per the rules regarding term limits, Obama’s presidency ends on January 20, 2017. That means that even if the Thurmond Rule were an enforceable law, it would only apply as of July 20, 2016. Presidential decisions often take a long time but it’s likely that Obama will name a successor before then.
In its entire history the US Supreme Court has never gone more than six months without the full number of judges. Although SCOTUS consists of nine judges, a quorum of six is required to hear a case. Judges are human beings and the court receives between seven and eight thousand applications for appeals each year. An empty seat on a court with such a high case load simply isn’t practical.
Let’s look quickly at some of the most likely candidates for Scalia’s replacement:
- Sri Srinavasan, age 49, is an Indian born circuit judge for the US Court of Appeals. A graduate of Stanford law school, he’s an ex clerk for former Supreme Court justice Sandra Day O’Connor and the first appellate court judge to swear his oath on the Baghavad Gita, a fact that will most likely bother Bible thumping Republicans. He was named to his current position by Obama in 2013 and was confirmed 97-0 by the largely Republican Senate.
- Patricia Ann Millet, age 52, is also a US Court of Appeals judge. A graduate of Harvard Law School Magna Cum Laude, she was appointed to her current position by Obama in 2013. As a lawyer she argued 32 cases before SCOTUS. She is also an occasional blogger for SCOTUS’ blog and an advocate for military families, something that could endear her to Republicans.
- Jacqueline Hong-Ngoc Nguyen, age 50, is a Vietnamese born US Court of Appeals judge. Her father was a major in the South Vietnamese army who helped the Americans during the Vietnam War. She graduated with a Juris Doctor from UCLA and during her years in private practice worked mainly on commercial disputes, intellectual property, and construction defect cases. She was recommended for the appeals court by Democratic Senator Diane Feinstein and was appointed by Obama in 2009. Her nomination was also confirmed by the Senate 97-0.
- Paul J Watford, age 49 is an African American US Court of Appeals judge. A graduate of UCLA law school, he is a former clerk for SCOTUS justice Ruth Bader Ginsberg. He was appointed to his current position by the Senate 61-34. On SCOTUS’ blog, US appellate advocate Tom Goldstein named Watford as the most likely replacement for Scalia because he’d be a more moderate counterpoint to conservative justice Clarence Thomas.
- David Jeremiah Barron, age 48, is a first circuit judge and one of the only white males named by the experts as a possible replacement for Scalia. He is also one of the most controversial due to a legal memo he wrote justifying lethal drone strikes against American citizens suspected of terrorism.
Though nominations to any court should be about ability and dedication to the law, it is unfortunately politics that rules the day. The debate surrounding Scalia’s replacement has done nothing but highlight how much Republican legal philosophy is rooted in fear.
Scalia was their hero, a die-hard defender of the law in its purest, most literal form, even if judicial interpretation came at the expense of women, blacks, Hispanics, and LGBT people. His replacement might not be so ignorant of modern realities that require judges to interpret the law in a way that reflects society’s evolution and progress.
This includes the recognition that a rule is not a law unless it is voted on and passed by Congress and that the Senate is as bound by the law as anyone else.
Panelists Jerry Gabriel, Cem Ertekin and Drew Bell discuss Just for Laughs and the concept of comedy, a week that could define Barack Obama’s presidency and what it means to be Canadian. Plus the Community Calendar and an interview with Gilbert Gottfried
Host: Jason C. McLean
Producer: Hannah Besseau
Cem Ertekin: FTB news editor
Jerry Gabriel: FTB contributor
Drew Bell: FTB contributor
Host: Jason C. McLean
Producer Hannah Besseau
Microphone image: Ernest Duffoo / Flickr Creative Commons