Patterico's Pontifications

3/20/2017

POLITICO Hit Piece Shows They’ve Got Nothing on Judge Gorsuch

Filed under: General — Patterico @ 9:30 am

Neil Gorsuch’s confirmation hearings begin today, and the Democrat case against him is laid out in a POLITICO piece titled 5 pieces of Gorsuch’s record that Democrats will attack (cached link; no links for bullies). It’s an attack that not only falls flat, but increases my admiration for the judge.

Complaint #1 is that he ruled in favor of religious freedom. That’s a non-starter as an attack. He’d have a problem if he ruled against it. Next?

Complaint #2 is that, while a lawyer at the Bush Justice Department, he supported the Bush administration’s priorities. Um, that’s what lawyers do. Next?

Complaint #3 is that Judge Gorsuch told people he found it “disheartening” and “demoralizing” to see President Trump attack the judiciary over his executive order on immigration. I couldn’t be more pleased about this. Democrats are indeed going to make much of this. They’re going to quote his comments and force him to own those comments publicly, in front of the cameras. I believe he’ll find a way to do that in a forthright manner that sounds reasonable. But in any event, he’ right. Next?

Complaint #4 is supposedly about “worker’s rights” but in reality is the sort of nonsense Democrats always engage in. Judge Gorsuch ruled properly in a couple of cases with sympathetic plaintiffs. To Democrats, if someone is sympathetic, it shouldn’t matter what the law says; you just make sure you rule for them because of the feelz. For example:

Senate Minority Leader Chuck Schumer held a news conference last week with people that the New York Democrat said had been victimized by Gorsuch’s legal decisions. Among his guests: the Hwang children, whose mother sued Kansas State University because she was denied an extension of her six-month leave of absence caused by her cancer diagnosis. Gorsuch sided against Hwang, who died last year.

Stunts like Schumer’s are designed to make judges seem heartless — almost as if Judge Gorsuch had killed Ms. Hwang with his own bare hands. But, to their credit, POLITICO at least provides a key line from Judge Gorsuch’s opinion that explains why he ruled this way:

Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.

Ms. Hwang could not work, and the ability to work is a requirement for an employee to be eligible for relief. The opinion was uncontroversial. It was also unanimous, and was joined by Judge Carlos Lucero, a Bill Clinton appointee, as well as Bush appointee Judge Harris Hartz. But Ms. Hwang and her family were sympathetic, and so let’s make Judge Gorsuch the bad guy. Fail. Next?

Complaint #5 is that “Gorsuch has shown deep skepticism toward the so-called Chevron deference, a longstanding doctrine that calls on judges to defer to how federal agencies interpret key laws.” This is perhaps my favorite aspect of the Gorsuch nomination: the way it threatens to help destabilize the overweening power of federal bureaucracy. I wrote about this extensively here, and will quote the heart of my post:

[A]bsurd regulations, completely untethered from common sense, have become ubiquitous in the lives of American businessmen. Fighting these regulations is well-nigh impossible because the bureaucracy serves as lawmaker, enforcer, and even judge. Your challenge to a stupid regulation must first be adjudicated by an administrative law judge who is an arm of the same agency that wrote and enforced the ridiculous regulation. But to make matters worse, when you then go to court, judges apply something called the “Chevron doctrine,” in which they almost always defer to the agency’s decision, as long as it is “reasonable.” . . . It’s a dangerous doctrine that makes judicial review toothless. It’s not what the Founders had in mind when they set up our system.

Gorsuch opposes this doctrine, and three cheers for him.

They’ve got nothing. Judge Gorsuch will be confirmed — and his tenure will be a home run for the American people.

[Cross-posted at RedState and The Jury Talks Back.]

48 Responses to “POLITICO Hit Piece Shows They’ve Got Nothing on Judge Gorsuch”

  1. Gorsuch will be confirmed, for the reasons our host gives and more, and as a matter of jurisprudence it will indeed be a continuing investment that may reasonably be expected to pay handsome dividends over many decades.

    As a matter of politics, though, the confirmation will also pay an immediate near-term bonus, giving a substantial boost to the political capital of not only President Trump but also of other GOP politicians (including Ted Cruz) and groups (Heritage, Federalist Society, etc.) that have focused sustained attention on the long-term jurisprudential importance of picking good nominees for the federal bench.

    In other words, whether Trump masterminded or just successfully outsourced this pick — and my guess is that it was largely the latter, i.e., that Trump inadvertently made a smart jurisprudential pick in the process of trying, for purely short-term political purposes, to show that he will keep his campaign promises — the Gorsuch battle, and eventually the Gorsuch confirmation, will be the very best news for his administration and for the GOP in the first year of this new regime.

    Some number of smarter Dems see this coming and will only partially beclown themselves, but there are plenty of others who will give Trump exactly what he wants and needs here — Democrat drama that conspicuously fails to affect results.

    Beldar (fa637a)

  2. Makes judicial review toothless, you say? I am intrigued by this so-called Chevron Doctrine, and would like to subscribe to its news letter. Sounds almost as promising for an unfettered executive as petulant and baseless impeachment of judges!

    Yes, I’m most certainly a conservative. Why do you ask?

    Leviticus channeling Trumpkins (efada1)

  3. sounds like this little Gorsuch man’s in deep deep denial about how sleazy and corrupt failmerica’s judiciary is

    picklehead needs to wake up

    happyfeet (28a91b)

  4. judge gorsuch makes left wingers angry
    that’s a good thing

    Cruz Supporter (102c9a)

  5. “Judge Gorsuch will be confirmed.”

    #%^*!!! That’s the kiss of death. You suck at predictions!

    Calmer than you (7a3de1)

  6. He’s received the ABA endorsement… what could possibly go wrong?

    Colonel Haiku (0b9b35)

  7. There is a new one: Neil Gorsuch once told his law class that women take jobs just to get maternity benefits.

    It was in his legal ethics class, i.e., this was a hypothetical as to whether or not it would be ethical for his female students to hide pregnancy plans. Discrimination on the basis that an attorney will become pregnant in the future was not, and is not, prohibited by law.

    The hypothetical was that of a married female lawyer with a huge student debt who intends to have children soon applying for a job to get the benefits. Gorsuch raised that as an ethical issue to ponder.

    Gorsuch is also supposed to have said that many women leave their jobs right after exhausing their maternity benefits and, after only a few students raised their hands, said he thought every student should know of such cases.

    It’s also claimed that Gorsuch said law firms should ask women seeking jobs about their plans for having children and that he implied that women manipulate companies to extract maternity benefits.

    Another former student senr a letter to the committee saying the manner in which Gorsuch discussed topics mentioned in the first letter was not the way it was described. The first student had actually complained to the school and the school did not agree with her complaint. But otherwise, she actually had praise for him.

    http://www.npr.org/2017/03/20/520743555/former-law-student-gorsuch-told-class-women-manipulate-maternal-leave

    http://www.nbcnews.com/politics/politics-news/gorsuch-told-class-many-women-manipulate-maternity-leave-student-n735701

    I think Nancy Pelosi has probably said something pretty similar herself about people taking jobs for the insurance. That one of the benefits of Obamacare is that people no longer have to stick with ajob just for the insurance.

    http://dailycaller.com/2014/02/05/pelosi-obamacare-allows-workers-to-escape-their-jobs

    The Congressional Budget Office says Obamacare will take people out of the labor force — and the law’s supporters say that’s a good thing.

    “Yesterday, the CBO projected that by 2021, the Affordable Care Act will enable more than 2 million workers to escape ‘job-lock’ — the situation where workers remain tied to employers for access to health insurance benefits,” House Minority Leader Nancy Pelosi crowed in a press release. “The GOP seems to have forgotten that ending ‘job-lock’ has been an avowed Republican goal for years — even a highlight in the Republican Sen. John McCain’s 2008 presidential race.”

    http://www.cnsnews.com/news/article/pelosi-obamacare-allows-you-quit-your-job-and-become-whatever#.

    Now if Neil Gorsuch ever said that some people might take a job just ahead of a pregnancy that’s a logical extention of that thought.

    Sammy Finkelman (3ea6b3)

  8. Gorsuch has just finished his opening statement. It was brilliant; he’s quite charming and sound-bite sensitive, so you’ll hear some of the best lines on the news tonight I’m sure.

    C-SPAN2 is livestreaming the hearing, no subscriber info or login required.

    Beldar (fa637a)

  9. “Ours is a judiciary of honest black polyester.”

    You’ll hear that line replayed.

    Beldar (fa637a)

  10. …in which they almost always defer to the agency’s decision, as long as it is “reasonable.”

    Unless of course, the President tweets something the judge doesn’t like.

    Kevin M (25bbee)

  11. i still say that president nasty hillary never would have nominated someone as conservative as judge gorsuch

    and for that reason alone the choice between mr donald and nasty hillary was easy

    Cruz Supporter (102c9a)

  12. I’m watching the hearing on c-span’s delayed feed.

    The Dems main whining point is “garland”. Patrick Leahy is particularly noxious today. To hear him talk about “the mainstream” is ironic. He practically called Gorsuch an evil stooge of a hidden cabal.

    Kevin M (25bbee)

  13. ‘Garlands’ for Gorsuch, eh.

    “Forward… to yesterday!” – Senator Billboard Rawkins [Keenan Wynn] ‘Finian’s Rainbow’ 1968

    DCSCA (797bc0)

  14. @ Kevin M: I wanted someone to interrupt Leahy and say, “You mean you’re angry that the GOP followed the ‘Biden Rule’ on Garland, we get it.”

    And who else but the Senator from California would spend part of her speech calling Roe v. Wade a “super-precedent,” which, in the Democratic formulation, is the unwritten part of the living, breathing Constitution that can’t be touched by the SCOTUS ever, and possibly can’t be touched even by a constitutional amendment, they’re so very super. In fairness to the Dems, I think it was actually Arlen Specter who came up with this nonsense, which is not just extra-constitutional but actively anti-constitutional.

    The whole morning was wasted on senatorial speechifying, and Gorsuch had very little time to make his own statement before Grasley recessed for the afternoon. That will work out well, actually, because the news reports will mostly carry his short sound bites rather than the senators’ windy speeches.

    Beldar (fa637a)

  15. Me on super-precedents back in 2005. If you haven’t heard that term before, there’s a very good reason: It’s made-up nonsense.

    Beldar (fa637a)

  16. calling Roe v. Wade a “super-precedent,”

    If Roe is untouchable, it’s because of politics, not the law. Three generations of young women have relied upon Roe to one degree or another and most have never known another system. Changing that would cause a significant political response. And fetuses cannot vote.

    I doubt that more than two members of the current court have any interest in overturning Roe, and I’m not sure about Thomas.

    Kevin M (25bbee)

  17. Her, is that like specter’s Scottish law innovation? Re impeachment.

    narciso (d1f714)

  18. the news reports will mostly carry his short sound bites rather than the senators’ windy speeches.

    You have more faith in their incompetence than I do. I think there is enough Democrat red meat in some of those speeches to satisfy any leftist news producer.

    Kevin M (25bbee)

  19. Arlen Spector defined a super precedent, as a decision that was reaffirmed in a later case. I think some of the old 14th amendment cases (substantive due process) might have been one but they were lateroverturneds. Spector said Roe v. Wade was an example.

    But the thing is he said legal scholars had used that term, and Beldar couldn’t find one example of it online.

    There’s a bunch of them now, that I found in Google Books, but I didn’t find any froom before 2005 quickly.

    Sammy Finkelman (3ea6b3)

  20. Wonderful pick. Thank you, Mr. President.

    Nice post. Thank you, Patterico.

    I especially enjoy your comments, Beldar. Thank you.

    ThOR (c9324e)

  21. The existence of the chevron thingamajing is another reason the common man cannot understand why we have a judicial system.

    mg (31009b)

  22. I’m circling in space after my attempt to read and figure out what that means, narciso.

    mg (31009b)

  23. I’m a Shell guy. 91 octane.

    Colonel Haiku (2601c0)

  24. Donald, was Henry Clay really a good president?

    DCSCA (797bc0)

  25. Beldar (fa637a) — 3/20/2017 @ 1:34 pm

    That will work out well, actually, because the news reports will mostly carry his short sound bites rather than the senators’ windy speeches.

    The CBS Evening News had, at the start, only sound bytes from Gorsuch.

    It showed Patrick Leahy and Richard Blumenthal complaining but that was about the fact that Merrick Garland’s nomination had been ignored and the Republicans shouldn’t have the opportunity to fill this seat. Not about anything wrong with Gorsuch.

    At the end the reporter was shown in the empty hearong room, and she pointed to the red seat Gorsuch would be in tomorrow and said he would be in ythe hot seats and named some issues he might be questioned on – just topics.

    You can probably see the same report tomorrow morning on CBS This Mornng and also in the middle of the night and also online.

    Sammy Finkelman (3ea6b3)

  26. the Anne Frank Center for Mutual Respect can suck a poopy i think

    happyfeet (28a91b)

  27. If Gorsuch doesn’t get the gig, there’s always Fox News now that there’s an opening as they’ve yanked Judge Andrew Napolitano off the air indefinitely.

    DCSCA (797bc0)

  28. as they’ve yanked Judge Andrew Napolitano off the air indefinitely.

    They have? I guess Judge Napolitano wasn’t able to satisfactorily explain himself. Donald Trump cost him the job, by pointing the finger at him.

    Sammy Finkelman (3ea6b3)

  29. @30. Yep. He and Billy Bush can get a room.

    DCSCA (797bc0)

  30. So this chevron doctrine wAS a nasty brew that Stevens drew fro. Fenton’s nrdc.

    narciso (d1f714)

  31. #33
    since the democrats actually enabled segregation, that means that none of them should be allowed to sit on the supreme court, right senator feinstein?

    Cruz Supporter (102c9a)

  32. 22. It seems to me that in 2011 the Department of Labor returned to an originalist interpretation of a 1966 law – a 1970 interpretation that had lost in court (I’m not sure why) until the Department if Labor reversed itself in 1978.

    I think the Supreme Court in 2016 was bothered by the fact that auto dealers negotiated and structured their [service advisor] compensation plans under the assumption that service advisors were included from the definition of “salesman” and, like them, not covered by overtime rules.

    This is one of the examples of chipping away at the Chevron doctrine, which held that a government’s agency interpretation of a law was owed deference ad shouldn’t be overturned unless it was clearly wrong. Maybe not so if they arbitrarily changed it without a change in the law.

    Gorsuch might get rid of the Chevron doctrime altogher and say courts should just interpret a law in the way they think most accurate and not give any deference to agencies charged with issuing regulations, at least not when they were not given the discretion by Congress to make whatever rules they wanted.

    Sammy Finkelman (3ea6b3)

  33. There’s a headline over at Brietbart right now that caught my eye:

    “JUDGE GORSUCH PROMISES HE WILL UPHOLD THE CONSTITUTION”

    I don’t know if I want to laugh or cry.

    ThOR (c9324e)

  34. And who else but the Senator from California would spend part of her speech calling Roe v. Wade a “super-precedent,” which, in the Democratic formulation

    Well, the old crone is a super genius.

    Bill H (383c5d)

  35. Those comments from Sen. Feinstein made me particularly angry. It’s a very, very poor advocate who so distorts her opponents’ views. She apparently believes that Justice Scalia was unaware of any Amendments to the Constitution, or the history which led to each and every one of them — history that includes the Civil War, start-stops for Prohibition and the Income Tax, and in the most recent example, a 203-year period between submission by Congress to the States and the amendment’s subsequent ratification by enough states to become effective.

    Yes, there are some number of hard-core Hard Left zealots who will eat up her calumny.* But most people, even including most Democrats, will recognize her spiel to be over-the-top rabble-rousing and stupidity, written by someone plenty smart but pretending to be stupid so as to connect with the segment of the audience which really is as stupid as she was pretending to be. She convinced no one of anything today.

    *Calumny is a good word; Judge Gorsuch used it in his opening statement today, but alas, mispronounced it, which I found slightly endearing actually)

    Beldar (fa637a)

  36. I’m a Shell guy. 91 octane.

    Colonel Haiku (2601c0) — 3/20/2017 @ 4:49 pm

    Say, Herr Oberst, do you remember the gas pumps- usually at a Sunoco- where you could dial in via selector lever the octane you wanted? I think 5 or 6 grades ranging from used dishwater to hydrazine.

    Bill H (383c5d)


  37. She convinced no one of anything today.

    Beldar, I don’t think she’s convinced anyone of anything since the second Reagan administration. I sincerely believe she continues as a Senator simply because she’s familiar talisman for the left here.

    Bill H (383c5d)

  38. You may not like Feinstein, but she is much better than California’s other prominent Dems (Boxer, Pelosi, etc.). And, if you listen closely, she is prone to “Kinsley gaffes.” I love that. And she made her first public appearance as the Queen of the Grand National Horse Show at the Cow Palace back in 1950. She deserves more credit than you are giving her . . . maybe not a lot, but still.

    ThOR (c9324e)

  39. I should stick to regular low octane, Col.

    mg (31009b)

  40. When Elise Stefanik asked Comey, When did you notify the white house, DNI and congressional leadership? Comey started lying and deflecting and then almost on cue as all republicans questioning someone do, they never followed up and made him answer the question. Shows close , but no cigar. Lame as can be, heck Ive had tougher prosecutors than these flea bag republicans.

    mg (31009b)

  41. I apologize for the lateness of this comment about the Comey-Rodgers hearing. However, here it is:

    I find it interesting that Comey kept stating he could not comment on ongoing investigations but then commented on some of the ongoing investigations.

    Davod (f3a711)

  42. Sorry, ThOR, but I disagree. Kinsey gaffes and 1950’s Queen of the Horse Show do not equal effective politician willing to stand up for my actual, Constitutional rights and intelligently legislate. You may admire her for some reason, but the best thing I can say about Dianne Feinstein is she hasn’t done as much damage as Barbara Boxer over the last 20 years.

    Bill H (383c5d)

  43. News faker strikes again.

    Cavuto lies about CNN, quipping ‘fake’ news about a taped interview while the same senator was live at the hearing– but Cavuto failed to see or note the CNN package was announced as being taped which he managed to miss.

    DCSCA (797bc0)

  44. Gorsuch hearing update: Ted Cruz remains an insufferably pompous and narcissistic individual.

    Leviticus (efada1)


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