Monday, March 20, 2017

Tail-Gunner Blumenthal vs. Gorsuch

U.S. Senator Dick Blumenthal was mentioned early in March in connection with the nomination to the Supreme Court of Judge Neil Gorsuch, described by The Hill, not a far right publication, as “a conservative judge who has attracted praise from both sides of the aisle.” Gorsuch, if his nomination passes muster with the U.S. Congress, will be replacing Justice Antonin Scalia, widely regarded as a conservative member of the court.

Should Democrats fail to oppose Gorsuch with the proper vigor, progressives warn they will turn their big guns on them.

Here is Heidi Hess, campaign manager at Credo Action, a left advocacy group with an email network of 5 million people, wadding the musket barrel: “A Democrat that votes for cloture on Gorsuch is a Democrat voting to overturn Roe [v. Wade]. This is absolutely a fight they should be fighting and that we will hold them accountable if they don’t fight it.”

Ms. Hess has not explained why the presence of Scalia on the high court for twenty years did not result in the overturning Roe v. Wade, or how replacing one conservative justice on the court with another conservative justice would overturn the “landmark Supreme Court case Roe v. Wade, which established a woman’s right to an abortion.”

The intellectual reasoning that formed the foundation of Roe v. Wade, some scholars have argued, is seriously defective, but no legal scholar as yet has suggested that replacing Scalia with Gorsuch will vacate Roe v. Wade. Does replacing an orange with another orange materially change the fruit in the basket? Although Roe v. Wade was decided thirty three years ago, it remains the law of the land. Abortion extremists  – here defined as anyone who approves of late term abortion for reasons other than to save the life of the mother – do have a way of crying wolf whenever a sheep bleats at their doors.

Blumenthal is a reliable abortion extremist, but even this far left Samson may not be able to pull the roof down on Gorsuch, because “he isn’t viewed as a controversial pick — at least not yet,” according to The Hill.

Among Democrats voting to confirm Gorsuch back in 2006 were former Massachusetts Sen. and Secretary of State John Kerry, former U.S. Senator and Secretary of State Hillary Clinton, former Vice President and Sen. Joe Biden – and current progressive scold U.S. Senator Chuck Schumer.  

The recently re-elected Blumenthal earlier had invited Gorsuch to take a stroll through the tar patch. Following a private interview with Gorsuch, Blumenthal said Gorsuch had severely criticized Trump’s combative attitude towards judges. After Blumenthal strongly suggested that Gorsuch should make his private views public during his nomination process, Gorsuch said he was speaking in general terms and had not directly addressed a particular issue he might later be compelled to decide as a Supreme Court Justice, deftly sidestepping the tar pit. It is common practice for Supreme Court nominees to avoid discussions they might later be called upon to adjudicate.

Political courage being directly related to the proximity of elections, Blumenthal is feeling his oats. On the first day of Gorsuch’s interrogation, Blumenthal, appearing on the left leaning CNN, said he did not agree with his Democratic colleagues that Gorsuch should be given a pass-through and that opposition should be focused on a second high court nomination: “Let's remember, the Supreme Court is more than just marble pillars and judicial robes. It is the flesh and blood and embodiment of American justice. I've met with some of the people who have been, in fact, harmed by Judge Gorsuch's decisions in the past. This nominee is virtually unique because he has been vetted, screened, in fact, almost selected by outside groups, right wing, conservative groups -- the Heritage Foundation and the Federalist Society. Now they've rehearsed and prepared him for this hearing. I want to know what those connections are as well."

This is a Joe McCarthy strategy to bat down appointments to high office: If Gorsuch is connected, even remotely, to a conservative support group, the unsavory connection may be regarded as a sufficient reason to block appointment by all means necessary.

Tail gunner Joe, it will be recalled, was impaled by chief counsel for the United States Army Joseph Welch after McCarthy pointed out that Fred Fisher, a young lawyer attached to Welch’s Boston law firm once had belonged to the National Lawyers Guild, which U.S. Attorney General Herbert Brownell Jr. had called "the legal mouthpiece of the Communist Party.” The connection, Welch insisted, was “a youthful indiscretion” on Fisher’s part. Welsh then turned the tables on McCarthy. “Let us not assassinate this lad further, Senator,” Welch retorted. “You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?” That interrogatory is credited with having destroyed McCarthy’s career.

Blackening reputations through remote associations is a career risking business, Blumenthal should know, particularly when there is a Welch among the interrogators.



Blumnethal's questioning of Gorsuch may be seen here.

Blumenthal's questions were, as usual, right-baiting. He was not satisfied with Judge Gorsuch's detailed answers to his questions, and the interview -- which Gorsuch escaped with a whole skin -- is notable mostly for showing Blumenthal's tremulous hands. Some have wondered whether the tremors were caused by nerves or possibly the early onset of Parkinson's.

Blumenthal's questions on abortion and contraception were batted back amiably and sufficiently.

Both Supreme Court decisions mentioned by Blumenthal -- Roe v Wade (abortion) and Griswold v Connecticut (birth control), while settled law, were rationally tortuous.

In Rove v. Wade, Justice Blackmun wrote,   “We need not resolve the difficult question of when life begins…” But Blackmun does in his decision make just such a determination. He determines that fetal life within the first trimester is not human life. Were it so, the taking of the life would be murder. Also, if at the end of an abortion process you end up with a corpse, it is eminently reasonable to conclude that a life has been terminated. You can only make a corpse from being in which life, terminated by abortion, "has begun."

The Griswold v CT (birth control) decision is anchored in a constitutional right of privacy nowhere mentioned in the Constitution. Justice William Douglas deduced the right from “penumbras” and “emanations” of other less immaterial constitutional protections; he deduced his penumbra from the 5th Amendment, self-incrimination. Because there nowhere existed in the Constitution a right violated by a prohibition on birth control, Douglas simply made one up out of whole cloth. Through a process of emanation, a clever Judge may be able to deuce pork chops from Shakespeare. Perhaps Gorsuch should have asked Blumenthal whether he believes in ghosts—they are emanations.

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