Gorsuch’s Soft Style and Hard Line

After blocking President Obama’s Supreme Court nominee for the past year, the Republicans got President Trump to put up a soft-spoken but hard-line right-winger in Judge Neil Gorsuch, as Marjorie Cohn described for Truthdig.

By Marjorie Cohn

When Donald Trump’s chief of staff Reince Priebus addressed the Conservative Political Action Committee in February, he identified two priorities of the administration: the confirmation of Neil Gorsuch to the Supreme Court, and deregulation.

U.S. Supreme Court nominee Neil Gorsuch speaking at the announcement of his selection on Jan. 31, 2017. (Screen shot from Whitehouse.gov)

It turns out that elevating Gorsuch to the Supreme Court and achieving deregulation are inextricably linked. During Gorsuch’s confirmation hearing, Democratic members of the Senate Judiciary Committee challenged him on his pro-business positions.

Minnesota Sen. Al Franken pressed him on a case — that of the now-infamous “frozen trucker” — in which the judge reached what Franken characterized as an “absurd” result. Alphonse Maddin was driving a truck for TransAm Trucking Inc. in 2009 when the brakes froze on the trailer he was hauling. The heater inside the truck wasn’t working, and the temperature outside was minus 27 below zero.

Maddin contacted his employer, who arranged for a repair unit to come to Maddin’s location. While waiting for help to arrive, Maddin nodded off.

“I awoke three hours later to discover that I could not feel my feet, my skin was burning and cracking, my speech was slurred, and I was having trouble breathing,” he said at a recent event in Washington, D.C. When Maddin stepped out of the truck, he said he “was on the verge of passing out. I feared that if I fell, I would not have the strength to stand up and would die.” Maddin was exhibiting symptoms of hypothermia. He called his employer again to report that he was leaving to seek shelter. His supervisor ordered him “to either drag the trailer [with no brakes] or stay put.”

“In my opinion, clearly, their cargo was more important than my life,” Maddin said.

Faced with defying his employer’s order to remain with his disabled trailer or freezing to death, Maddin chose to unhitch the trailer and drive his truck to safety. TransAm fired Maddin for disobeying orders, and he filed a complaint with the Occupational Safety and Health Administration, an agency of the Department of Labor. The operative statute in this case forbids employers from firing an employee who “refuses to operate a vehicle because the employee has a reasonable apprehension of serious injury to the employee or the public.”

The Labor Department found that TransAm had violated the law, concluding that the word “operate” includes not only driving, but also “other uses of a vehicle when it is within the control of the employee.” Maddin had refused to operate his vehicle in the manner his employer had ordered — with the trailer hitched to the truck.

Of the seven judges who ultimately ruled on the case, Gorsuch was the only one who voted to uphold Maddin’s firing. He decided that Maddin did “operate” his vehicle, which took him outside the statutory language that protects an employee who refuses to operate his vehicle.

What source did Gorsuch consult to construe the word “operate?” He turned to the Oxford English Dictionary, refusing to defer to the Department of Labor’s broader interpretation of the statute. Gorsuch characterized “health and safety” concerns as “ephemeral and generic,” writing, “After all, what under the sun, at least at some level of generality, doesn’t relate to ‘health and safety’?”

A Smooth Persona

In his dissent, Gorsuch, who displayed a smooth, compassionate persona while testifying at his hearing, described the conditions Maddin faced as merely “cold weather.” He wrote that for Maddin to sit and wait for help to arrive was an “unpleasant option.”

The late U.S. Supreme Court Justice Antonin Scalia.

Maddin’s lawyer, Robert Fedder, told Democracy Now!’s Amy Goodman that during oral argument before the appellate panel, “Judge Gorsuch was incredibly hostile.” Fedder noted, “I’ve litigated many cases in appellate courts … [Gorsuch] may have been the most hostile judge I’ve ever appeared before.”

Maddin, who is African-American, later said, “The first thing I noticed was that in his opening reference [in his dissent, Gorsuch] simply called me a trucker and didn’t use my name.” Maddin told The Guardian, “In my heart of hearts, I felt like he willfully tried to negate the human element of my case.”

At Gorsuch’s confirmation hearing, Illinois Sen. Dick Durbin discussed Maddin’s case with Gorsuch, saying that the temperature was minus 14 that night, “but not as cold as your dissent.”

In Gorsuch’s dissenting opinion, he refused to defer to the Department of Labor’s interpretation of the statutory language regarding refusal to operate. Gorsuch was, in effect, refusing to apply the well-established “Chevron deference.”

This doctrine requires that when a law is ambiguous, courts must defer to an agency’s reasonable construction of the statute. Even the late Supreme Court Justice Antonin Scalia, to whom Gorsuch is often compared, thought that agencies were in the best position to construe regulations that inform their work.

If Gorsuch had his druthers, he would do away with Chevron deference. In fact, he stated as much in his lengthy concurrence in Gutierrez-Brizuela v. Lynch, in which he wrote, “Maybe the time has come to face the behemoth.”

Gorsuch would substitute his own interpretation for that of an agency. But agencies are in the best position to make these determinations about matters within their purview.

Dangers of Second Guessing

In opposing Gorsuch’s nomination to the high court, the nonprofit organization Alliance for Justice wrote of the dangers of second-guessing agency experts: “It is difficult to overstate the damage [Gorsuch’s] position would cause. Judge Gorsuch would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people.”

President Donald Trump delivering remarks at CPAC on Feb. 24, 2017. (Screen shot from Whitehouse.gov)

Courts that have given deference to agency interpretations ensured essential protections, including:

–Deferring to the National Labor Relations Board’s reasonable determination that live-haul workers are employees entitled to protections of the National Labor Relations Act;

–Deferring to the Environmental Protection Agency’s rule requiring states to reduce emissions from power plants that travel across state lines and harm downwind states;

–Deferring to the Department of Labor’s interpretation of portions of the Black Lung Benefits Act that make it easier for coal miners afflicted with black lung disease to receive compensation; and

–Deferring to the EPA’s revision of regulations under the Toxic Substances Control Act that provide more protection from exposure to lead paint.

But Gorsuch’s desire to neuter agency determinations dovetails nicely with Trump’s chief strategist Steve Bannon’s goal of “deconstruction of the administrative state.” The Trump administration has issued several orders that mandate deregulation:

On Jan. 20, Priebus directed agency heads to refrain from sending new regulations to the Office of the Federal Register until there are administration officials in place to approve them.

On Jan. 24, Trump signed a memo directing his Secretary of Commerce to review the ways in which federal regulations affect U.S. manufacturers in order to reduce as many of them as possible.

On Jan. 30, Trump issued an executive order requiring the mechanistic elimination of two regulations for every new one, and capping spending on new regulations during 2017 at zero.

On Feb. 3, Trump signed an executive order rolling back Dodd-Frank regulations on Wall Street. This will increase the risk of another dangerous recession.

During the confirmation hearing, Franken confronted Gorsuch with the confluence of his confirmation to the Supreme Court and the deconstruction of the administrative state (deregulation), saying,

“[F]or those who subscribe to President Trump’s extreme view, [the Chevron doctrine] is the only thing standing between them and what the President’s chief strategist Steve Bannon called the ‘deconstruction of the administrative state,’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.

“Speaking before a gathering of conservative activists last month, Mr. Bannon explained that the President’s appointees were selected to bring about that deconstruction, and I suspect that your nomination, given your views, is part of that strategy.”

Big Business Interests

Deregulation serves the interests of big business, a key conservative goal. When questioned at his hearing about what ideology he would bring to the court, Gorsuch made the disingenuous claim, “There’s no such thing as a Republican judge or a Democratic judge. We just have judges in this country.”

If that were true, why are the Heritage Foundation and the Federalist Society so keen on Gorsuch? He was on a list prepared by the two right-wing groups from which Trump dutifully selected his Supreme Court nominee.

“The president outsourced your selection to far right, big money interest groups, and they have an agenda. They’re confident you share their agenda. That’s why they called you ‘a nominee who understands things like we do,’ ” Sen. Patrick Leahy, D-Vermont, told Gorsuch at his hearing.

Why has $10 million in “dark money” been spent by anonymous conservative donors to buy Gorsuch a seat on the high court, as Sen. Sheldon Whitehouse, D-Rhode Island, charged at the hearing? And why, as Whitehouse added, was $7 million expended on the unprecedented, but successful, campaign to deny Barack Obama’s nominee Merrick Garland a hearing?

Gorsuch is a staunch, longtime conservative judge who, in spite of his refusal to tip his hand about his ideology, has taken positions that confirm his right-wing bona fides. When Sen. Chuck Schumer, D-New York, announced he would vote against Gorsuch’s nomination, he stated that Gorsuch had ruled repeatedly for employers and against workers.

Gorsuch “almost instinctively favors the powerful over the weak,” Schumer said, adding, “We do not want judges with ice water in their veins,” an apt analogy in light of Gorsuch’s dissent in the TransAm case.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and AbuseCowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn. [This article first appeared at Truthdig, http://www.truthdig.com/report/item/neil_gorsuch_and_the_deconstruction_of_the_administrative_state_20170326 ]

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48 comments for “Gorsuch’s Soft Style and Hard Line

  1. Zachary Smith
    March 27, 2017 at 10:03 pm

    Gorsuch is a staunch, longtime conservative judge who, in spite of his refusal to tip his hand about his ideology, has taken positions that confirm his right-wing bona fides. When Sen. Chuck Schumer, D-New York, announced he would vote against Gorsuch’s nomination, he stated that Gorsuch had ruled repeatedly for employers and against workers.

    Gorsuch “almost instinctively favors the powerful over the weak,” Schumer said, adding, “We do not want judges with ice water in their veins,” an apt analogy in light of Gorsuch’s dissent in the TransAm case.

    Marjorie Cohn is being excessively polite here, for I’d prefer to say Trump’s nominee Neil Gorsuch is a cold-blooded radical nutcase.

    The other day I read a similarly disturbing essay at the Naked Capitalism site, one which had a paragraph which is still haunting me.

    Without a coherent response to neoliberalism, Trump’s billionaire cabinet may do to the United States what neoliberals in the Clinton administration did to Russia after 1991: tear out all the checks and balances, and turn public wealth over to insiders and oligarchs. So Trump’s his best chance to be transformative is simply to be America’s Yeltsin for his party’s oligarchic backers, putting the class war back in business.

    Viewed in this light, “deconstruction of the administrative state” becomes “deconstruction of the administrative state for great profit for the plunderers.” A recent essay on this site – “A Breach in the Anti-Putin Groupthink” introduced me to the neoliberal rape of Russia after the collapse of the USSR. I don’t want to watch Trump’s band of billionaires do the same thing to the US. I’ve seen with my own eyes the result of the Clinton/Bush/Obama efforts permitting the financial institutions here to steal trillions of dollars. Some nearby neighbors of mine had their home stolen by the thieving bankers, and the stress from the loss of everything they had destroyed them as a family unit. Again, it took the combined and bipartisan work of three extraordinarily lousy presidents for the 2008 looting to happen, and for the looters to get off scott-free.

    Allowing Trump to do Round Two is a very bad idea, and Neil Gorsuch is precisely the sort of distinguished-looking & smiling monster to tip the balance on the Supreme Court into destructive chaos for those of us who aren’t billionaires.

    The worst of it is that the empty seat doesn’t even belong to Trump! A 2016 theft by the Urinate-On-The-Constitution Republicans left the present opening on the Court.

    Are the Democrats howling about that? Not that I’ve heard. I suspect a majority of them fully support what Trump is doing, but they’d personally prefer to do the destroy-the-nation stuff at a much more leisurely pace.

    www*nakedcapitalism.com/2017/03/105083.html

    • Chris Jonsson
      March 27, 2017 at 11:00 pm

      Zachary Smith you paint an accurate picture of the situation, a picture of hell in the future and no one standing up for the country or its people.
      At least Schumer is standing up to Gorsuch. He could easily have looked the other way and let the wolf in the hen house door. I don’t think the DNC establishment, except for a few, seems to care one way or another.

    • Bill Bodden
      March 28, 2017 at 12:05 am

      Marjorie Cohn is being excessively polite here, for I’d prefer to say Trump’s nominee Neil Gorsuch is a cold-blooded radical nutcase.

      I agree with your comment, Zachary, but I don’t believe Gorsuch is a nutcase. He is worse, He knows exactly what he is doing which makes it much worse. This creature would have been among his ilk if were on a court is Germany in the 1930s amd ear;u 1940s and in Chile shortly after 1973.

      • evelync
        March 29, 2017 at 12:36 am

        “I’d prefer to say Trump’s nominee Neil Gorsuch is a cold-blooded radical nutcase.”
        ……..
        “I agree with your comment, Zachary, but I don’t believe Gorsuch is a nutcase. He is worse, He knows exactly what he is doing which makes it much worse. This creature would have been among his ilk if were on a court is Germany in the 1930s amd ear;u 1940s and in Chile shortly after 1973.”

        his aloof laugh, arrogant attitude and indifference convince me that you are both right.
        A scary star chamber judge without a conscience….

        There should be some kind of a test for psychopaths for the courts and elected office.

    • rosemerry
      March 29, 2017 at 3:48 pm

      You are correct, and Gorsuch is just the start of a worse SCOTUS for decades to come. The creeping loss of rights for workers and the environment started in 1970 with Lewis Powell. A lawyer “elected” to the Supreme court, he led the US Chamber of Commerce to put into action a plan to gut all regulations providing for safety and fair working conditions for workers over the next decade or more, as documented in his splendid book “Corporations are not People” by Jeffrey Clements. State after State was able to gut regulations protecting natural resources and workers’ legal rights, right up to the 2010 famous “buy your Congress member” decision so many now regret but Obama did nothing to touch.

      Once the SCOTUS has a majority of Gorsuch/RATS there can be no pretense that the USA has democracy.

  2. Eddie
    March 27, 2017 at 10:10 pm

    The Dems better not roll-over on this nomination or they might as well go home for the next 20 yrs. They fell for that same “I’ll be objective” song-and-dance with Scalia and the results were disastrous…

    • Chris Jonsson
      March 27, 2017 at 10:51 pm

      Eddie, Same with Roberts and Alito.

  3. Joe Tedesky
    March 27, 2017 at 11:09 pm

    Not to worry when your head starts to get dizzy, and your mind edges off into a soft weird euphoria while you lungs are depleted of your last breath of air, as these rich parasites suck all of what’s left of the remaining air out of the room. I can see the Supreme Court now defending the rights of the ownership class, as being what our Founding Framers meant for our Constitution to protect. Just as in the 19th Century when our court system stood more for the owner employer rights as opposed to the struggling working class. The coal miners of that era of Robber Barron’s would lead the way becoming unionized against this small but powerful group of capitalistic monopolist of their day. So here America is once again finding itself the savior of the property class.

    If this is the future and more than likely the immediate now, then it will be a whole generation before this can turn itself around. Today would be a good time for every American to stay home. That’s right the whole country go on strike. Just one day, and see what would happen. No plane flights, no train’s with passengers, no cars on the highways, no gasoline being purchased, no nut’n! One big shut down…now how to organize and sell it???

  4. incontinent reader
    March 27, 2017 at 11:12 pm

    Gorsuch is not only a ‘good old boy’ from Colorado with a conservative judicial philosophy. He has close ties to super conservative Phil Anschutz and to a justice system of a state that is not unlike military music is to music- and, he was, and is a Washington insider.

    According to Wikipedia:

    During his time at the United States Department of Justice Civil Division, Gorsuch was tasked with all the “terror litigation” arising from the President’s War on Terror, successfully defending the extraordinary rendition of Khalid El-Masri, fighting the disclosure of Abu Ghraib torture and prisoner abuse photographs, and, in November 2005, traveling to inspect the Guantanamo Bay detention camp.[33] Gorsuch helped Attorney General Alberto Gonzales prepare for hearings after the public revelation of NSA warrantless surveillance (2001–07), and worked with Senator Lindsey Graham in drafting the provisions in the Detainee Treatment Act which attempted to strip federal courts of jurisdiction over the detainees.[34]

    It is his ties to torture and justification of the worst abuses under our Constitutional system of justice that set him apart, together with others like Judge David Sentelle for whom he clerked, Judge Bybee, Berkeley Professor John Yoo, Alberto Gonzalez, Dick Cheney and David Addington. Diane Feinstein who is no shining defender of our democracy (see her staunch defense of our now pervasive surveillance system, or endorsement of targeted assassination and its lack of judicial due process, or laudatory comments about, and confirmation of David Petraeus- or later of John Brennan (who ended up screwing her) other than her admittedly courageous stand against torture, asked him a question alluding to his work at the Justice Department, and his lame answer was that he was merely acting as an attorney. So much for the moral core one expects from a Supreme Court justice (even if so few of them have it today).

    • Bill Bodden
      March 28, 2017 at 12:14 am

      …[H]is lame answer was that he was merely acting as an attorney

      Presumable, Gorsuch meant that he was following the law which brings to mind a quote from Charles Dickens’ “Oliver Twist,” “”If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”

    • Bill Bodden
      March 28, 2017 at 12:45 am

      Gorsuch is not only a ‘good old boy’ from Colorado with a conservative judicial philosophy.

      He is also something of Mama’s boy: http://www.salon.com/2017/02/03/neil-gorsuchs-mother-tried-to-dismantle-the-epa_partner/

    • Joe Tedesky
      March 28, 2017 at 1:13 am

      incontinent reader that list you wrote while I was reading it, pissed me off. Not for you writing it but for seeing the cavalcade of criminals, or rather distinguished legal references, but for the shame those creeps brought down on our dear beloved country. When torture comes up I always recommend reading about Hanns Scirff and Sherwood Ford Moran, because they were what Interrogators should be. This torture ideology always comes from those who physically have the least amount of skin in the game. It’s said even George Washington didn’t wish to get down to Tarleton’s Raiders level, and even if that’s a myth then it’s a nice myth to have. Thanks, and from everything so far of what I’ve learned about Judge Gorsuch is we all better get ready for some good old fashioned 19th Century laws soon to be a coming our way…YeeHaw!

  5. Loup-Bouc
    March 28, 2017 at 12:09 am

    Marjorie, Marjorie, Marjorie. Once you were a law professor. Now you are a Democrat Establishment shill.

    Gorsuch is smarter and educated better than all current Supreme Court Justices. On the left, the right, and in the center, many, many jurists, law professors, and lawyers have observed that Gorsuch’s judicial philosophy and his judicial record are highly respectable. His lawyering is immensely better than yours. All his colleagues hold that he is a decent, reasonable, scrupulous jurist who adheres to the rule of law.

    Your complaint reduces to your disliking some aspects of Gorsuch’s politics. But, more than most judges (E.G., Justices Sotomayor and Alito), Gorsuch has kept his judicial decisions from political taint.

    Be ashamed, Marjorie. Be ashamed.

    • Bill Bodden
      March 28, 2017 at 12:17 am

      On behalf of many of the regular commenters and readers here at Consortium News, Loup-Bouc, you are the one who should be ashamed.

      • Loup-Bouc
        March 28, 2017 at 1:19 am

        I should suggest you correct your grammar & the illogic of your syntax; but your usage shows you would not know how. Your usage renders your assertion risible. One’s language is not a mere communication of one’s thought. It IS one’s thought.

        • Bill Bodden
          March 28, 2017 at 6:12 pm

          It’s kind of odd, Loup-Bouc, but I’ve been making comments on this and other blogs for probably three or four years, maybe more, and no one other than you has noticed I have a problem with my grammar and syntax. Perhaps you would be happier at another website where the commenters adhere to your higher standards.

      • backwardsevolution
        March 28, 2017 at 5:03 am

        Bill – I agree with Loup-Bouc. I have detected an extreme bias in every single article that Ms. Cohn has written. Important facts are too often left out, opinion is slanted, and I come away wondering where to begin to refute her and whether it is worth the effort. She is a lawyer. If she presented her articles as argument in court, she would be slapped down severely. I happen to think she can do better than that.

        • Bill Bodden
          March 28, 2017 at 1:06 pm

          I have detected an extreme bias in every single article that Ms. Cohn…

          I have detected bias in all but very few comments made by those of us who comment on this and other websites. And, I’ll admit I’m just as biased as the next person. The question is how are we biased? For good or for ill?

          • backwardsevolution
            March 28, 2017 at 4:04 pm

            Bill – I mistakenly answered your question below (please see that). But I also wanted to emphasize the fact that Ms. Cohn consistently leaves out very important facts, facts I am sure she knows about, in order to steer her bias. It’s one thing to lay all the facts on the table, weigh them, and then submit your opinion on what you think is the best. It’s quite another to lay only half of the facts on the table.

    • Zachary Smith
      March 28, 2017 at 1:37 am

      Gorsuch is smarter and educated better than all current Supreme Court Justices

      You have access to their IQ tests?

      But assuming this is the flat-out truth, Gorsuch is a brilliant corporate hack. One good/bad (depending on your politics and grasp on reality) thing about Trump is that he has kept many of his campaign promises.

      During his campaign, Trump promised to nominate a Supreme Court justice selected exclusively from a list drawn up by far-right groups with ties to these same wealthy interests. As president, Trump kept that promise when he nominated Gorsuch last month to fill the vacancy.

      Even before his elevation to the bench, Gorsuch’s right-wing, pro-big business views were clear. For example, he wrote an article arguing that liberals are too addicted to the court system and should keep important social issues like gay marriage, physician-assisted suicide, and school vouchers out of the courts. Notably absent was a similar critique of conservatives who pursue their interests in the court system. And Gorsuch has advocated for making it harder for investors and shareholders to bring lawsuits when companies commit securities fraud.

      On the bench, his judicial decisions show a remarkable ability to shape and re-shape legal arguments in ways that benefit large corporations and disadvantage ordinary people seeking justice. In the Burwell v. Hobby Lobby Stores case, when he had to choose between the “rights” of corporations and the rights of women, Gorsuch sided with corporations. In consumer protection cases, when he had to choose between the “rights” of corporations and the rights of swindled consumers, Gorsuch sided with corporations. In discrimination cases, when he had to choose between the “rights” of corporations and the rights of employees to be free from harassment and abuse, Gorsuch sided with corporations.

      Gorsuch has taken positions that are even more extreme than his extremely conservative colleagues. When it comes to the rules that protect public health and safety, Gorsuch is more radical than Scalia was.

      So if Trump doesn’t give us Corporate Governance by means of the TPP, he’s going to “backdoor” it by means of Gorsuch.

      But we’ll be certain that all the Corporate Hackery will be brilliant. That’s all that really matters, isn’t it?

      www*bostonglobe.com/opinion/2017/03/19/neil-gorsuch-does-not-belong-supreme-court/elq2QqQBdJW5Fh0s2isXhJ/story.html

      • Loup-Bouc
        March 28, 2017 at 4:22 am

        You parrot many of the myths the Democrat Establishment broadcasts against Gorsuch. Prove they are not myths, but truths. Gorsuch’s detractors have the burden of proof.

      • backwardsevolution
        March 28, 2017 at 4:49 am

        Zachary – a judge is supposed to follow the law, not make the law. A judge cannot make law or interpret it the way he wants to. He must follow the law.

        “…he wrote an article arguing that liberals are too addicted to the court system and should keep important social issues like gay marriage, physician-assisted suicide, and school vouchers out of the courts.”

        What I think Gorsuch means is that, instead of the legislative branch making new laws or repealing old ones, the court is being left to do their job. That’s not the way it’s supposed to be. Too often, instead of congressmen having the balls to step up and make the law clearer, it is left to the courts to interpret. That way they get to let the courts take all the heat, and then they tell their constituents, “Well, the court ruled. What can I do?” Bull!

        Spell it out.

        • Evangelista
          March 28, 2017 at 9:04 pm

          Backwards,

          Your simplistic assertion, “…a judge is supposed to follow the law, not make the law. A judge cannot make law or interpret it the way he wants to. He must follow the law.” is not compatible with law administration in a Republic, especially a Constitutional Republic, such as the Constitutionally Constituted United States.

          It is not because it is simplistic and for its simplisticity is anti-Constitutional.

          In the United States incompetents in the judiciary branch who have adhered, and do adhere to it and who justificate prejudiced decision-making by axiomizing what you state, in doing so making what they assign to be “the Law” a secular God, or God’s Law for the nation (which they and legislators, and today Presidents, can make, or pronounce at will, yeah, even as if Writ In Stone) are who are responsible for the degeneration of the the United States to the present Commercial Law Constituted United States from the Constitutionally Constituted United States Republic that was founded per the United States’ Constitution.

          The United States Constitution, and, in particular its Preamble, defines what is to be law in the United States, and what is not to be: If any made “Law” does not “preserve the blessings of Liberty” for “We the People”, it is not legally law.

          Gorsuch, evidenced by his adjudicative record, not only shows himself to accept extra-constitutional “law” as legal, thereby showing himself an advocate for the Commercial United States that today usurps the Constitutional one (and has brought the nation to the brink of the cliff history shows Empire always going over), he shows himself prejudiced and to perceive himself entitled, by judiciary offices he may hold, to twist and twit and finesse and finagle law to suit not application situations, but his personal ignorances and prejudices.

          Consider the article-given cases where Gorsuch construed definitions for “operate” and “health and safety” to permit niggling he preferred to case-relevant adjudication. The United States Constitution, and Bill of Rights, provide location jurisdiction and jury adjudication. Why? To make the frame of reference in adjudications cohere to the case under consideration: If, for example, someone does not set a brake in a mountainous area the effect is more serious for the characteristics of the physical location than if someone does not in a flat plains area. A same allegation, of failing to set a brake would be serious in one location, not serious, to even frivolous, in the other. Gorsuch, sitting in a heated courtroom, or office, quibbling the “operating” conditions in a case in which exposed unheated extreme-cold winter conditions are a factor, dismissing the exposed conditions as “just cold”, not only proofs him being an idiot without sufficient empathetic capacities to adjudicate competently in cases involving real world conditions, it indicates him unable to, or disinclined to, adhere to and apply the location-relevant impositions assigned in the location jurisdiction and local jury adjudication requirement assignments in the United States Constitution. Gorsuch, in the example case, put his personal prejudices ahead of his responsibilities in office and dismissed local conditions to permit himself to finesse word meanings and wordings to “reason” to his personally desired conclusion.

          Gorsuch may be a good guy in personal and cocktail-party conversation, and may be a great advocate for whatever may be a client’s personal prejudices, and so may be a good lawyer, but he is not of judiciary caliber. He demonstrates himself to not have sufficient breadth of experience and understanding, or ability to expand his understanding by empathetic intellectual extension, to adjudicate in cases outside his own personal and prejudice confines.

          For this same narrowness and demonstrated inability to expand himself intellectually to compass the variety of situational conditions a varied population of a Republic will necessarily bring into a courtroom in a Republic, for merit and situation and prevailing condition decision-making adjudications, Gorsuch is not competent to represent any spectrum of The People of the United States, and he has no business on any United States Judiciary bench, at any level, from municipal to Federal Supreme Court, as a magistrate or a judge.

          Gorsuch’s abilities are narrowly advocative. He is competent only to be a lawyer. He is simply not competent above a lawyer-advocate level. He is incompetent to adjudicate in a Republic.

        • oceansongs
          March 30, 2017 at 8:49 am

          Incorrect. Justice Kennedy’s decision in the ‘Citizen’s United’ case made law (as all Supreme Court decisions do) and it was his interpretation of the 1st Amendment that created this law. Furthermore, writing an article that states “liberals are too addicted to the court system” is a plain silly opinion and nothing more. The civil court system in this country exists for people to address their grievances and those who advocate on behalf of “social issues” are well within their rights to do so. Lastly, the three branches of the federal government (executive, legislative and judiciary) were established in the constitution to prevent the executive branch from acquiring too much power, so yes, the court’s often end up doing the job of Congress who has long since ceded much of its power to the Presidency, i.e., war powers, etc That said, you may believe in the validity of your comments and hold them as true, but they are mere incorrect opinions.

          Patrick, Esq.

    • backwardsevolution
      March 28, 2017 at 4:28 am

      Loup-Bouc – thank you for speaking up in defense of Judge Gorsuch. Who cares what Chuck Schumer says! I wouldn’t trust that guy as far as I could throw him.

      “In an interview Tuesday with MSNBC’s Rachel Maddow, Schumer said President-elect Donald Trump is ‘being really dumb’ by taking on the intelligence community because if he does ‘they have six ways from Sunday at getting back at you.’

      Just let that soak in for a minute.

      One of the most powerful senators just admitted that it is ‘stupid’ for a president to oppose the intelligence community, which he is in charge of, because it will ‘[get] back at you.'”

      Yeah, let that soak in. I mean, what type of person would ever say such a thing? And his opinion is supposed to hold weight? Schumer is a lawyer, just like Gorsuch, except that Gorsuch has actually practiced law; Schumer has never practiced, preferring to become a career politician right out of the gate.

      It’s easy to criticize a judge’s ruling, but unless you actually immerse yourself in the subject (the whole subject), it’s easy to fall for an author’s simplistic outline of the facts.

      • incontinent reader
        March 28, 2017 at 12:16 pm

        I agree with your assessment of the Democrats you cite, nor do I consider a conservative judicial philosophy or a ‘brainy’ judge as as otherwise disqualifying a candidate- of course not.

        The issues I raised however went to the fundamental basis of our Constitution, our democracy and democratic values and the rule of law, and must say that issues of torture, habeas corpus, indefinite detention and application of military law and unrestrained surveillance are litmus tests of whether someone is qualified or not to serve on the highest court of our land. These are not partisan issues, they are fundamental to our judicial system, our government, the rule of law, and who we are as a people.

        We should not forget that some of the most erudite and brilliant jurists in Europe leading up to the Second World War were those German judges who rubber-stamped unspeakable evils not merely targeted against Jews but against Slavs, Gypsies, the mentally disabled, homosexuals, and other minorities, and while Gorsuch may speak the lingo re: the LGBT, he has missed the greater point, and should have, when he worked for Alfredo Gonzalez and the Bush Administration, spoken out and resigned, rather than plied his craft as a lawyer to advance some of that Administration’s most unspeakable policies.

        • Bill Bodden
          March 28, 2017 at 2:37 pm

          Very well said, incontinent reader. Your point about bad judges in Germany brings to mind the old saying about bad cases making bad law. As you demonstrate bad judges also make bad law. We might also not the German judges you refer to were not unique in how they passed judgment.

        • backwardsevolution
          March 28, 2017 at 3:05 pm

          incontinent reader – agree with much of what you have to say. If the U.S. minded its own business and wasn’t trying to constantly rule, rape and strangle the entire world, though, some of the above would just disappear.

          And this strangulation has been turned inward too. With this mindset, how could it be otherwise? Paranoia strikes deep. Unfortunately, power has been centralized to the point where now a small group of psychopaths run the country. Yes, the people let this happen. Like dependent children, they could neither foresee what would happen (because history is so boring!), nor did they mind so long as daddy was handing out free candy and protecting them from evil.

          The result? Non-stop war and candy being handed out to groups, lots and lots of special interests, in order to placate them. The people, no longer interested in what was good for the “country”, turned their attention to what was good for themselves. This self-centeredness was necessary in order to take eyes off of what was really going on: the complete centralization of power.

          And the interest groups have done their fair share of destroying the country too. Political correctness and the curtailment of free speech serve to shut down all dissent, stifling voice. That’s a manufactured silence you hear. So at the same time as they got their rights, their so-called freedom, they’re now being spied on and listened to, can be tracked. Not a good trade.

          Who is going to fight back now? The electorate is not one voice. It’s a mish mash of little nations, all vying for attention, and no one is minding the store. Isn’t it great to be multicultural, multi-interest group? And don’t think the elite didn’t know what it was doing, because they purposely targeted the useful idiots (the progressive left) to help them in their endeavors. A fragmented, divided country never fights back.

          You either get an electorate who speaks with one voice (what is good for the country as a whole) and a weaker central government – or – you get a divided electorate with many voices (what is good for my own particular special interest group) and an evil central government. Take your pick.

          Worrying about Judge Gorsuch is like worrying about a grain of sand on a beach. At least Judge Gorsuch had career decisions we can criticize, unlike Justice Elena Kagan. You might like to read about her. Considering her lack of judicial and courtroom experience, how the hell did she get to where she got? Luck? I don’t think so.

      • Bill Bodden
        March 28, 2017 at 12:29 pm

        [T]hank you for speaking up in defense of Judge Gorsuch. Who cares what Chuck Schumer says! I wouldn’t trust that guy as far as I could throw him.

        backwards: I obviously disagree with the first of your two sentences quoted above, but i’m in complete agreement with the second sentence except I think you have been too kind in your criticism of Chuck Schumer (D-Wall Street and Israel)

        • backwardsevolution
          March 28, 2017 at 3:51 pm

          Bill – “The question is how are we biased? For good or for ill?” Yes, we are all biased, but what is “good” for one person might be “ill” for another. For every winner, there is a loser. When these “losers” not only lose, but are then stifled in their speech, you create a ticking time bomb.

          Winners, excited in their victory, never seem to get this. All they care about is winning, never realizing that in the win they have just lost. Because in order to maintain the “win”, they must hold down others.

          Special interests have gained control (the psychopathic elite are one such group), each vying for their own particular cause. History has shown that this works for awhile, that is until the dam breaks. A hyphenated, divided citizenry never ask what is good for the country, only what is good for themselves. Fools.

          • Bill Bodden
            March 28, 2017 at 6:16 pm

            Yes, we are all biased, but what is “good” for one person might be “ill” for another.

            That’s life, or to paraphrase Hamlet, “Frailty, thy name is humankind.”

    • rosemerry
      March 29, 2017 at 3:51 pm

      So now the wolf-goat is here. Stop pretending you have any idea of anything please.

  6. Bill Bodden
    March 28, 2017 at 12:31 am

    If Gorsuch were faced with deciding between the law and justice, assuming he were capable of recognizing justice when it was staring him in the face, it would be a safe bet he would choose the law. The law and justice are not always synonymous.

    Several years ago I watched a program on British television during which the host interviewed a sculptor who exhibited one of his sculptures that had an immediate shocking effect. This sculpture was based on the familiar statue of Justice with her balanced scales and a blindfold, but it was much different. Instead of this Justice giving an appearance of good health and strength she appeared to be abused and haggard. Instead of her scales being held aloft in balance they dangled at her side and were askew. Instead of her blindfold being a clean cloth over her eyes it looked more like a bandage on a wounded soldier in a war zone. The artist named his work “Justice Raped” as a testimony to how Justice is raped everyday in courts of law.

    • Joe Tedesky
      March 28, 2017 at 1:41 am

      Bill I’m afraid the corporatocracy has finally taken over. Every aspect of our American life is now under control. Sessions today presented his case to deport illegal criminals, but somehow through the spin and presentation of it all Hispanics do no better than Muslims when it all finally comes out of the spin cycle…can we say, divided nation any louder? Trump wants to deregulate, okay then let’s just let business do anything it wants. Nobody deregulated TSA pat downs, no instead they have bolstered up the groping up process. No it’s going to be what’s good for the mega firms and the very wealthy. I also believe there are some scholarly Constitutionalist who thinks that’s the way it was meant to be.

      • Bill Bodden
        March 28, 2017 at 12:10 pm

        Bill I’m afraid the corporatocracy has finally taken over.

        I have had a recurring thought lately that the barbarians have finally taken over the United States. This time the barbarians are wearing expensive suits paid for with the money they have siphoned off at the expense of the working classes.

    • backwardsevolution
      March 28, 2017 at 4:52 am

      Bill – it’s not up to the courts to give you justice. If you want justice, you talk to the legislative branch, the gutless wonders who are supposed to be making the just laws.

      • Bill Bodden
        March 28, 2017 at 12:21 pm

        [I]t’s not up to the courts to give you justice. If you want justice, you talk to the legislative branch, the gutless wonders who are supposed to be making the just laws.

        With a slight modification we would be in agreement. [I]t’s not only up to the courts to give you justice. If you want justice, you must alsotalk to the legislative branch, the gutless wonders who are supposed to be making the just laws.

        Take a peak at some of the decisions made by the supreme (?) and other courts in the past and note how many have been reversed suggesting injustice practiced by the court whose judgment was reversed. How about the Dred Scott case? Where was justice in that court?

  7. March 28, 2017 at 6:59 am

    I agree with the criticism of the reasoning in the trucker case and Franken’s point that Gorsuch’s opinion few in the face of common sense exceptions. I was also bothered by Gorsuch’s answer in response to the case where the sitting Supreme’s overruled him 8-0:
    https://www.rt.com/usa/381926-gorsuch-ruling-reversed-scotus/ He said that when the case came before his court he was bound by precedent for his legal region. However, the case he cites as precedent seems quite different (and he was involved with it). That case, Urban vs. Jefferson County http://caselaw.findlaw.com/us-10th-circuit/1278336.html was decided on the basis that the plaintiffs had not used up their non-judicial options within the school district. That basis doesn’t seem relevant to the case in his 2008 ruling.

  8. Patrick Lucius
    March 28, 2017 at 10:14 am

    Hillary Clinton would have weakened our 2nd Amendment rights even though she armed Africa. Thank God or Providence that Trump won is what I am thinking.

  9. Zachary Smith
    March 28, 2017 at 11:22 am

    Regarding the theme of “Democrats As Scum”, take a look at a new essay from Naked Capitalism:

    “Gaius Publius: Senate Democrats Will Filibuster Gorsuch…Maybe”

    The real reason corporatist Democrats — a group that includes Chuck Schumer, remember, if it is not led by him — want Gorsuch confirmed is that their corporate paymasters (sorry, campaign contributors) want Democratic Senators to help confirm him, and may shut off the flow of money if they don’t.

    Yes, they’re willing to accept Gorsuch. In modern America if you pull the “D” lever, you lose same as if you do the “R” one. The rich bastards own them both. And Justice Gorsuch is going to help set that situation in stone.

    www*nakedcapitalism.com/2017/03/gaius-publius-senate-democrats-will-filibuster-gorsuch-maybe.html

  10. Bill Bodden
    March 28, 2017 at 12:41 pm

    The theory promoted in school is that the courts decide what is constitutional and what is not, but given the number of split decisions it is obviously not that simple. The judges and justices are presumed to be referring to the same constitution so how do they manage to disagree? Because they are not necessarily following the constitution but their interpretation of the constitution molded by their biases. For people seeking justice in court – lotsaluck.

  11. Bill Bodden
    March 28, 2017 at 1:08 pm

    “Judge Neil Gorsuch’s Hiring Practices: Privilege or Prejudice?” by Linn Washington Jr. – http://www.counterpunch.org/2017/03/28/judge-neil-gorsuchs-hiring-practices-privilege-or-prejudice/

  12. Zachary Smith
    March 28, 2017 at 4:01 pm

    I painfully recall making multiple declarations that we would be living with President Hillary now, so did I learn from that experience?

    No, I’m going on the record again with another prediction – this Gorsuch hack is going to be on the Supreme Court soon. IMO this is a virtually unstoppable proposition, so I think we need to start thinking about how to deal with that eventuality.

    Me? First thing I’ll do is to take notice of every Democrat who assists with this in any way whatever. And i’ve sent a note to my Republican senator that I’ll remember his vote for Gorsuch too. Not that he cares – this is Indiana we’re talking about. Mississippi North – a state which elected both Mitch Daniels and Mike Pence.

    • backwardsevolution
      March 28, 2017 at 4:13 pm

      Zachary – they are all “hacks,” almost every single one of them. The country has been hacked to death, at least since the death of JFK. Death by a million cuts.

    • Bill Bodden
      March 28, 2017 at 6:20 pm

      Mitch Daniels? Is that the same Mitch Daniels who predicted the war on Iraq would only cost about 60 billion dollars? Sixty billion – five trillion – so who’s counting?

      • Zachary Smith
        March 28, 2017 at 7:35 pm

        Some of us local folk call him the little bald-headed {bad word}, but he’s the very one. Us Indiana-ians have a bad habit of taking Washington’s rejects and making them Governor of the State. Now Our Man Mitch is at Purdue University busily destroying everything there that’s worthwhile. (He arranged that lucrative gig before leaving Indy)

  13. Bill Bodden
    March 28, 2017 at 6:30 pm

    Re comments on bias above. Has anyone noticed our host has a bias against fake news and double standards out of the New York Times? One of our regular commenters seems to have a bias against some ” murderous and thieving little shithole of an apartheid state.” Joe T seems to have a bias when some of his friends are content with what the mainstream media feed them. It would probably take a book to list all the biases that president Trump has. Unfortunately, based on what he said this morning, Paul Ryan doesn’t seem to have a bias against speaking unadulterated bullshit.

  14. Evangelista
    March 28, 2017 at 9:12 pm

    [I will post this here as a pronouncement on Gorsuch as a jurist. The bulk is extracted from a reply to an accolade of Gorsuch, as if he were competent to be a jurist, posted above.]

    In the United States incompetents in the judiciary branch who have adhered, and do adhere to ‘We must follow the law’ and who justificate prejudiced decision-making by axiomizing sanctity of legislated law, in doing so making what they assign to be “the Law” a secular God, or God’s Law for the nation (which they and legislators, and today Presidents, can make, or pronounce at will, yeah, even as if Writ In Stone) are who are responsible for the degeneration of the the United States to the present Commercial Law Constituted United States from the Constitutionally Constituted United States Republic that was founded per the United States’ Constitution.

    The United States Constitution, and, in particular its Preamble, defines what is to be law in the United States, and what is not to be: If any made “Law” does not “preserve the blessings of Liberty” for “We the People”, it is not legally law.

    Gorsuch, evidenced by his adjudicative record, not only shows himself to accept extra-constitutional “law” as legal, thereby showing himself an advocate for the Commercial United States that today usurps the Constitutional one (and has brought the nation to the brink of the cliff history shows Empire always going over), he shows himself prejudiced and to perceive himself entitled, by judiciary offices he may hold, to twist and twit and finesse and finagle law to suit not application situations, but his personal ignorances and prejudices.

    Consider the article-given cases where Gorsuch construed definitions for “operate” and “health and safety” to permit niggling he preferred to case-relevant adjudication. The United States Constitution, and Bill of Rights, provide location jurisdiction and jury adjudication. Why? To make the frame of reference in adjudications cohere to the case under consideration: If, for example, someone does not set a brake in a mountainous area the effect is more serious for the characteristics of the physical location than if someone does not in a flat plains area. A same allegation, of failing to set a brake would be serious in one location, not serious, to even frivolous, in the other. Gorsuch, sitting in a heated courtroom, or office, quibbling the “operating” conditions in a case in which exposed unheated extreme-cold winter conditions are a factor, dismissing the exposed conditions as “just cold”, not only proofs him being an idiot without sufficient empathetic capacities to adjudicate competently in cases involving real world conditions, it indicates him unable to, or disinclined to, adhere to and apply the location-relevant impositions assigned in the location jurisdiction and local jury adjudication requirement assignments in the United States Constitution. Gorsuch, in the example case, put his personal prejudices ahead of his responsibilities in office and dismissed local conditions to permit himself to finesse word meanings and wordings to “reason” to his personally desired conclusion.

    Gorsuch may be a good guy in personal and cocktail-party conversation, and may be a great advocate for whatever may be a client’s personal prejudices, and so may be a good lawyer, but he is not of judiciary caliber. He demonstrates himself to not have sufficient breadth of experience and understanding, or ability to expand his understanding by empathetic intellectual extension, to adjudicate in cases outside his own personal and prejudice confines.

    For this same narrowness and demonstrated inability to expand himself intellectually to compass the variety of situational conditions a varied population of a Republic will necessarily bring into a courtroom in a Republic, for merit and situation and prevailing condition decision-making adjudications, Gorsuch is not competent to represent any spectrum of The People of the United States, and he has no business on any United States Judiciary bench, at any level, from municipal to Federal Supreme Court, as a magistrate or a judge.

    Gorsuch’s abilities are narrowly advocative. He is competent only to be a lawyer. He is simply not competent above a lawyer-advocate level. He is incompetent to adjudicate in a Republic.

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