Wednesday, April 05, 2017

Blumenthal’s Potemkin Village Objections to Gorsuch

At the end of March, U.S. Senator Dick Blumenthal announced in a Hartford Courant Op-Ed column that he “will vote against the nomination of Judge Neil Gorsuch as United States Supreme Court Justice.”

His reasons for doing so do not bear close examination, but they correspond neatly to the reasons offered by other Democrats, demonstrating perhaps that Blumenthal is a reliable Democratic Party soldier who comes when he’s called and goes when he’s ordered to do so by U.S. Senator Chuck Schumer, the unacknowledged propaganda chief of  the party. Had Hillary Clinton won the presidency in her contest with Donald Trump, whose ideology is blurry, Blumenthal would be taking his marching orders from Mrs. Clinton. Alas, as the poet tells us, “the best laid plans of mice and men are often torn asunder.” Mr. Trump was elected President, the House and Senate were lost to Republicans, and Democrats have been choking on bile ever since.

Mr.  Blumenthal wrote that he had made his decision “after questioning him [Judge Gorsuch] extensively at the Judiciary Committee hearing, reviewing his record, and deliberating carefully and deeply. It is one of the most important votes I will ever cast.”

On this last point, Blumenthal may be right: his decision to obstruct, but not successfully block, the nomination of Mr. Gorsuch really is one of the most important votes he has ever cast. So then, shall we examine, deliberately and carefully, the reasoning that led to Mr. Blumenthal’s "No" vote?

The Gorsuch nomination will not be blocked, and after all the weeping and wringing of hands on the part of Senate Democrats, many of whom were grievously wounded by a Republican decision to postpone a vote on former President Barack Obama’s choice for a justice to replace the deceased former Justice Antonin Scalia, Judge Merrick Garland, Mr. Gorsuch will be seated on the high court. Political strategies motivated chiefly by resentment are rarely successful in the long run, and in the short run, scratching a resentment itch is only temporarily satisfying.

Mr. Blumenthal first described the “backdrop” against which his vote against Mr. Gorsuch made sense: “Trump's disrespect for the judiciary was demonstrated by how he selected his nominee. He promised a litmus test — a nominee who would ‘automatically’ overturn Roe v. Wade, strike down gun violence prevention measures and be of a ‘conservative bent.’ He outsourced the selection process to extreme right-wing groups like the Heritage Foundation, choosing from their approved list.”

Bottom line: Mr. Gorsuch was chosen by Mr. Trump; therefore, the choice was unacceptable to Mr. Blumenthal. No doubt the senior Senator from Connecticut would have preferred a candidate selected by Mr. Schumer. So, for that matter, would Mr. Schumer, who has suggested that Mr. Trump should choose another candidate more to his liking. Would Mr. Garland do?

Those who know Mr. Gorsuch know he will not allow himself to be put on a short political chain to be jerked here and there by cheap politicians, which would prevent him from reaching decisions according to a rational interpretation of the law. That has been Mr. Gorsuch’s accomplished end ever since his appointment to the 10th Circuit Court of Appeals eleven years ago on a unanimous voice-vote by Mr. Schumer and other Democratic members of the U.S. Congress. Despite Mr. Blumenthal’s wrongheaded assumptions, Mr. Gorsuch cannot properly be described as either conservative, liberal or a progressive, terms used to describe politicians such as Mr. Blumenthal, the Senator From Planned Parenthood, who is progressive on the matter of late term abortion. Mr. Gorsuch is indeed an originalist like Mr. Scalia, whom Mr. Gorsuch will replace without disturbing a balance in the high court that dates to 1986, when Mr. Scalia was seated as an Associate Justice. Originalism, however, is not a political orientation; it is a mode of constitutional interpretation the opposite of which is anarchic Constitutional interpretation. 

During his interrogation, Mr. Blumenthal asked Mr. Gorsuch about Roe V. Wade, and Mr. Gorsuch replied that the abortion decision made by the High Court was “settled law,” which ought to have satisfied Mr. Blumenthal’s misgivings that the judge, once on the court, would “automatically” overturn Roe v. Wade. Mr. Blumenthal knows that Mr. Trump in his rhetoric sometimes reaches for the stars. In his objections to Mr. Gorsuch, Mr. Blumenthal and other Democrats appear to be following in Mr. Trump’s footsteps. After Mr. Gorsuch is seated, questions related to abortion, snaking their way up from appellate courts, may come before the Supreme Court – and that is why Mr. Gorsuch declined to answer specific questions related to issues he may confront as a Supreme Court justice; not because, as Mr. Schumer and Mr. Blumenthal suppose, Mr. Gorsuch has been slithering evasive during his hearing, but rather because petitioners before the court are entitled to a disposition of their case that has not been pre-judged by Mr. Gorsuch.

Nearly every appointee to the high court since the borking of Judge Robert Bork by Democrats has responded similarly to questions that might prejudice their decisions. And yet, high court judges acceptable to Democrats have been spared the pot-boiler rhetoric of Lion of the Senate Edward Kennedy, who said about Mr. Bork, an originalist like Justice Scalia, “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

Neither Mr. Blumenthal nor Mr. Schumer has tap-danced rhetorically in Mr. Kennedy’s shoes yet. But there’s always tomorrow.

Post a Comment