SCOTUS nominee Gorsuch — his answers made us uneasy - DOD Secretary Mattis — needs to check his headspace and timing
- Trump’s comments before the healthcare vote perturbed us . . .
- After the vote, Trump’s comments moved us to the previous state of mere apprehension
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Two takes, and ours
The first linked article, by Gerald Bradley writing at National Review, was written before the official Senate hearing this week on the Gorsuch SCOTUS nomination. The article sets out a possible strategy in use, said to be necessary to get Gorsuch through the hearings while not triggering Democrats to go off the deep end now, and not to fall for a strategy of theirs to set up Gorsuch as being biased, perhaps causing his recusal on matters they hold dear.
Why Gorsuch Should Remain Reticent on Roe
Bradley uses a number of examples of nominees, conservative and liberal, during their nomination hearings who refused to comment on potential matters before the court system, and while not defining them as “settled”. But because Gorsuch is replacing Scalia we refer only to Bradley’s recitation of Scalia’s approach as sufficient to make the point. (bold emphasis ours)
Based upon his judicial record to date, and — more important – upon his adherence to the originalist methodology most famously practiced by Justice Scalia, there can be little doubt that Neil Gorsuch knows that Roe v. Wade was wrongly decided. He might say so at his confirmation hearing. But do not count on it. It’s rare to hear an unequivocal declaration by a Court nominee that a case that has not yet been overruled is simply wrong. At their Senate hearings, none of the recently appointed justices — Roberts, Alito, Sotomayor, Kagan — identified (so far as I can recall) any such case by name.
Their reticence was part of an established custom, according to which nominees refrain from offering a candid, up-or-down judgment of any standing Supreme Court precedent. By “standing,” I simply mean a case that has not been overruled. Nominees do not hesitate to say that Dred Scott (slavery) or Plessy (segregation) was a mistake. Antonin Scalia was no stranger to controversy. But at his confirmation hearing in 1986, Scalia declined to say what he thought even of Marbury v. Madison: “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental” as Marbury. (Marbury is the 1803 case upon which judicial review is founded.)
For some reason Gorsuch in his testimony this week did not always mirror Scalia’s responses to critical questions. In response to the matter of gay marriage, something not known to be part of the Constitution for 250 years, Gorsuch referred to the Obergefell ruling as “absolutely settled law.” Marriage understood to be a matter of a special bond between opposite sexes, an understanding, part of western culture almost forever, but turned over but two years ago in the United States, is somehow by this natural law proponent now settled?!
For a supposed “originalist” or “textualist” as regards the Constitution, nothing should be “settled” that does not conform to the Constitution. Perhaps it was a dodge, to the effect, “settled for this hour on the clock. ” Perhaps, but we fear not. Garsuch’s answer, if he is a textualist anything like Scalia, is ridiculous if he believes that states cannot regulate marriage as between a man and a woman because somehow everything under the sun has been taken from the states and incorporated as a right protected by the 14th amendment. Nothing is safe about federalism, properly understood, under the incorporation doctrine, if he is relying on that.
Just as the other sorts of jurists did, Gorsuch should simply have repeated what should be a stock phrase and refused to explain or go further other than to articulate his legal philosophy and chastise any aggressive inquisitors trying to elicit a prejudiced answer for whatever reason. Instead Gorsuch’s response could be taken as a signal that is more an Anthony Kennedy than Antonin Scalia.
Read this worrisome post from Steve Jalsevac at Life Site News in that regard
Neil Gorsuch is NOT another Scalia
Gorsuch on Obergefell
Also during the confirmation hearings, in response to a question about same-sex “marriage” and the results of the Obergefell decision – which many consider an even more outrageously corrupt, activist Supreme Court decision than Roe v Wade — Gorsuch stated it “is absolutely settled law.”
He did not just call it “settled law,” which one could say, well, yes, in legal terms that is what it could be said to be … for now. But he unnecessarily and disturbingly added the word “absolutely.” Why did he go to that length?
That comment seemed to indicate Gorsuch is not a full constitutional originalist. No originalist would ever make such a comment that appears to betray the Constitution and the intentions of the Founders – considering the travesty of the Obergefell decision.
Now we likely know why Trump also called Obergefell “settled law” in response to a question during a 60 Minutes interview. He had likely been talking to Gorsuch.
Justice Scalia had ripped the Obergefell decision to shreds for its inventions of nonexistent rights out of thin air, as he did with many other judicial activist decisions by his peers on the court and in lower courts. He described the decision as the “furthest imaginable extension of the Supreme Court doing whatever it wants.” He added, “Do you really want your judges to rewrite the Constitution? I don’t know how you can get more extreme than that.” . . .
Joshua Goodbaum, a former clerk to Gorsuch, told the Times that his boss was “thrilled” for him and his “husband” when they got same-sex-“married” in 2014:
“He was actually kind of syrupy about it. I remember him saying, ‘You’re going to see how wonderful this is for your relationship,’’’ Goodbaum said.
Gorsuch is said to be a strong proponent of Natural Law. His above noted statements and actions on homosexuality defy that claim.
And on the matter of abortion, this Gorsuch response is seriously disquieting, Via AP / Chicago Tribune
Gorsuch, a federal appeals court judge in Denver, refused repeated attempts to get him to talk about key legal and political issues of the day. But he did tell Sen. Dianne Feinstein, who worried that Gorsuch would vote to restrict abortion, that “no one is looking to return us to horse and buggy days.”
What the hell does that comment by Gorsuch mean?! We will look for solace in surrounding context when we see the transcripts.
We suppose we can bend over backwards and interpret the response as ackowledging that science in the “horse and buggy” mid-late 1800’s was key to establishing legislation in the United States outlawing abortion as a matter of statutory law to replace common law (judge made) proscriptions and torts. That would be allowing for a mere anachronism on his part, which we hope to be the case.
But the facts are that ongoing developments in biological and medical science have only buttressed the logic and science of “horse and buggy days” recognizing the humanity of the unborn. And, it is also clear that Judaeo-Christian civilization has condemned abortion for thousands of years. So one wonders, is Gorsuch saying nothing pre-automobile is defensible Constitutional law? If not, then why offer goofy or clumsy formulations in order to appease the likes of Dianne Feinstein?
We also wonder if Gorsuch is trying to match Scalia’s 98 to 0 vote in support of his nomination by appealing to liberals? But no election looms in a matter of weeks as was the case with Scalia. It is also now clear it won’t work — Democrats have announced a filibuster.
We recognize we are stuck with Gorsuch and we believe Trump’s pick of him is well-intentioned based on necessary recommendations of others. But those “others” can be manipulative, or miss things and be wrong. We remember the David Sutter and Anthony Kennedy and John Roberts accolades and assurances. We can only hope that Gorsuch’s responses do not actually reflect someone undeserving of the accolades he has received.
Another important read on Gorsuch, also from Life Site News, is this Matthew Cullinan Hoffman post (heavy on judicial philosophy) written prior to the hearings:
Neil Gorsuch: The new Scalia…or something else?
Be Mad at Mattis
Presuming the article linked to next is substantive, it comes from Politico after all, then our compliments to President Trump for setting Department of Defense Secretary Mattis straight on the importance of personnel as policy, especially in key positions. The individuals Mattis has championed for appointment (see excerpts) surely cannot be chalked up as being uniquely qualified. Nor does his, said to be, disdain for “political” types seems explanatory, given that the people mentioned are likely as much political in personal history as most.
Hill Republicans say they’re growing frustrated with Mattis
The Marine general was welcomed as a moderating force in the Trump administration, but his moves to name Obama veterans to Pentagon posts are irritating allies in key committees.
Mattis has bristled at nominating people with political backgrounds, including Randy Forbes, a former Virginia congressman who was considered for secretary of the Navy, and former Missouri Sen. Jim Talent, a Republican with expertise in defense policy, whose name has been floated for several senior defense posts. Senior members of the Republican foreign policy establishment had been pushing for the nominations of both men, neither of whom was openly critical of Trump during the campaign. Mattis has instead opted for deputies with backgrounds in law, diplomacy and business.
The defense secretary has also rankled Republicans with his efforts to hire veterans of Democratic administrations, pushing unsuccessfully to bring on Michèle Flournoy, who served as undersecretary of defense for policy in the Obama administration, as his deputy. He has more recently proposed to the White House nominating Clinton administration veteran Rudy DeLeon as undersecretary for personnel and readiness and Richard V. Spencer, a former Marine and investment banker now affiliated with the bipartisan Center for a New American Security, as secretary of the Navy.
The latest flash point between the secretary of defense and congressional Republicans came over Anne Patterson, a former diplomat appointed ambassador to Egypt under Obama whom Mattis wanted to nominate as his undersecretary for policy. Her nomination was officially scrapped last week after two GOP senators, Ted Cruz of Texas and Tom Cotton of Arkansas, waged a public campaign against her, explaining they weren’t comfortable with her willingness to engage with Egypt’s former Muslim Brotherhood-aligned government.
But the backstory is more complicated and provides a window into the botched political maneuvering that is hamstringing the defense secretary just two months into his tenure.
Weeks before Patterson’s name was withdrawn, Cruz began circulating a letter opposing her nomination among Republican members of the Senate Armed Services Committee. The letter cited her work as Obama’s ambassador to Egypt.
Cotton, increasingly a trusted voice on defense issues inside the West Wing, was more concerned with her lack of experience inside the Pentagon and conveyed his uneasiness to Vice President Mike Pence in a phone call earlier this month.
“Sen. Cotton was opposed to Anne Patterson’s nomination because of her lack of DOD-specific experience,” said Caroline Rabbitt, Cotton’s spokeswoman. “Ultimately, he got no assurances that she possesses the know-how to write strategic defense plans that combatant commanders would ultimately have to implement. He feels that the Pentagon should be focused on our obligation to build a GOP bench of national security.”
We will buy into the theoretical competence of holdovers from the Obama administration if their original appointment did not involve being on board with implementation of predictably harmful policy for the nation’s military readiness. And then we would need to see bold critiques by them, “on file,” challenging significant aspects of the Obamanation’s tear-down of the military before they would deserve our confidence as policy makers.
And why would Mattes want these people unless they embody support for his own differing views with Trump? Yes General, it is about politics and appropriately so. General Mattis, you need to check your own headspace and timing.
Mr. President, must you perturb your friends ?
And then there was Trump’s comment in the lead up to the vote in the House on the Ryan/McConnell/Trump healthcare package. The legislation ended up being pulled for lack of any Democrat votes nor support of enough Republicans to get it through. We are grateful to those Republicans, primarily Freedom Caucus members, for forcing the matter back to the drawing board in better fulfillment of campaign promises made by the Republican Party, and for that matter, President Trump. Washington Times report:
Trump warns GOP that ‘no’ vote on health-care bill helps Planned Parenthood
Hours before the House was to vote on crucial health care legislation Friday, President Trump raised the ante for conservative lawmakers planning to vote against him, issuing a thinly veiled warning about possible 2018 GOP primary challenges if they cross him.
“The irony is that the Freedom Caucus, which is very pro-life and against Planned Parenthood, allows P.P. to continue if they stop this plan!” the president said on Twitter of his opposition on the right.
Seriously Mr President, stopping the funding of Planned Parenthood can be done in focused ways, as expeditiously as has been proposed numerous times, redirecting money to community health agencies. We don’t have to save the bathwater with the baby. Republican leadership is all it takes. We wish we had some.
We think the Freedom Caucus won this round of poker with the prez and they have learned, we hope internalized, that knowing your hold cards, you can play the game with him. We also object to the implications of Trump giving ultimatums on this matter, and Bannon and Ryan doing the same. The bill was not a reliable undoing of Obamacare and arguably it inculcated some of the very things Republicans ran against. The justifications for offering it the way they did stunk.
After the vote, Trump properly places blame on those that caused the problem in the first place
Via Town Hall: Trump Blames the Democrats (excerpt)
The GOP’s American Health Care Act has been scrapped. Knowing they were several votes short of passage, President Trump and House Speaker Paul Ryan decided to pull the bill on Friday. Both conservative and moderate Republicans indicated they could not vote for it because they deemed it Obamacare 2.0.
Trump is putting the blame, not on the conservative members of the House Freedom Caucus, but on Democrats.
“We had no Democrat support,” he said at the White House on Friday. “They weren’t going to give us a single vote.”
He predicted that Obamacare will now “explode” as premiums continue to rise. Democratic leaders Nancy Pelosi and Chuck Schumer are the real “losers,” he said, because they own Obamacare.
In his own press conference following their decision to pull the bill, Ryan said he was disappointed, but optimistic because the party is now more passionate than ever to fix health care. Nevertheless, we are stuck with Obamacare for “the foreseeable future,” he noted.
As regards Speaker Ryan’s comment, the first part may well be the case, we hope so. But the “foreseeable future” line is inappropriate, too open-ended if there is the passion he speaks of.
R Mall
