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Blumenthal’s Last Stand

Gorsuch and Blumenthal

The title of the news report was, “Sen. Richard Blumenthal makes last-ditch effort to delay Amy Coney Barrett’s nomination to the Supreme Court, but Republicans prevail on party-line vote.”

Blumenthal’s last stand occurred following the termination of the Senate public hearing convened to pass on Amy Coney Barrett’s fitness to serve on the U.S. Supreme Court. Barrett’s elevation to the high court is a virtual certainty, since Democrats in the Senate do not have the votes to block her admission to the court.

Unlike Custer’s last stand, Blumenthal’s occurred on an empty battlefield. And Barrett, who already had been through Blumenthal’s drill, certainly will not respond publicly in the pages of the Hartford paper to issues Blumenthal had previously raised in the public Senate hearing, exhaustively covered by the anti-Barrett media.

During her public hearing, Barrett was peppered with questions from Blumenthal and others that she wisely chose not to answer.

At one point in the public hearing, a polite and mild mannered Barrett, sensing the snare tightening around her ankle, told Blumenthal, “Every time you ask me a question about whether [or not] a question was correctly decided, I cannot answer that question, because I cannot suggest agreement or disagreement with precedents of the Supreme Court. All of those precedents bind me now as a Seventh Circuit judge and, were I to be confirmed, I would be responsible for applying the law of stare decisis to all of them.”

Blumenthal tightened the snare. He asked Barrett how she would feel as a gay or lesbian American “to hear that you can’t answer whether the government can make it a crime for them to have that relationship, whether the government can enable people who are happily married to continue that relationship,” at which point Barrett pushed back, saying the senator was implying she would cast a vote to overrule Obergefell [ v. Hodges],” a case in which the high court found that same-sex couples had a constitutional right to marry.

“I’m not even expressing a view in disagreement of Obergefell,” Barrett said, stepping nimbly and properly around a cheap trap that would have impaired her objective decisions in future cases. “You’re pushing me to try to violate the judicial Canons of ethics and to offer advisory opinions and I won’t do that.”

Blumenthal, having stoked the fires of resentment among gays, folded his tent and hobbled off the battlefield.

But he would live to fight another day, when Barrett was not present to challenge his discreditable political tactics.

No recent nominee to the Supreme Court, originalist or not, has answered the kinds of questions put by Blumenthal to Barrett -- because in answering such speculative and hypothetical questions on abortion or gay rights as Barrett correctly refused to field, the prospective justice would not thereafter be free to decide such questions should he or she be elevated to the Supreme Court – very likely in Barrett’s case, much to Blumenthal’s chagrin.

There are highly relevant questions Connecticut’s deferential media has not and will not put to Blumenthal, a progressive white-hatter.

Blumenthal had said that Barrett, should she become an Associate Justice, must recuse herself from making decisions on the high court involving election laws because President Donald Trump, who had nominated her to the court, might become involved in suits concerning ballot impropriety. Put aside for the moment that recusal and presidential court nominations are wholly unrelated, an obvious question raises its horned head: Why didn't Blumenthal at the same time call for the recusal of two other Associate Justices nominated to the court by Trump, Brett Kavanagh and Neil Gorsuch, both male Associate Justices?

The objections raised by Blumenthal against Barrett, all swirl around originalism -- a mode of Constitutional interpretation different in kind from conservatism, a political worldview and another of Blumenthal’s bugbears.

Blumenthal made use of the Barrett snares in his 2017 Gorsuch interrogatories. 

Here is a 2017 report from CTMirror on Blumenthal’s interrogation of Gorsuch:

On Griswold v. Connecticut, a 1965 decision that overturned the state’s ban on contraceptives for married couples and bolstered Americans’ right to privacy, Gorsuch said, “It has been repeatedly reaffirmed.”

Pressed by Blumenthal to give an opinion on the case, Gorsuch demurred.

“My personal views have nothing to do with my job as a judge,” he said.

On Eisenstadt v Baird, which established the right of unmarried people to possess contraceptives, Gorsuch said, “To say I agree or disagree with the United States Supreme Court as a judge is an act of hubris.”

“Precedent is more important than what I think, and my agreement or disagreement doesn’t add weight towards it,” Gorsuch said.

Gorsuch called  Loving v Virginia, which ruled that banning interracial marriage is unconstitutional, “a seminal, important vindication of the original meaning of the Equal Protection Clause.”

But he said little else.

“I’m drawing the same line that Justice (Ruth Bader) Ginsberg, (David) Souter and (Antonin) Scalia… Many, many people who have sat at this confirmation table and declined to offer their personal views on this or that precedent,” he said.

Of Lawrence v. Texas, which held the government can’t criminalize gay and lesbian relationships, Gorsuch said, “I’m going to give you the same answer every time.”

Blumenthal also failed to secure Gorsuch’s personal opinion on a couple of key abortion rights cases, Roe v. Wade and Planned Parenthood v. Casey.

A frustrated Blumenthal told Gorsuch, “Your declining to be more direct leaves doubt in the minds of millions of Americans.”

But Gorsuch said it was important to hide his views.

“If I start suggesting that I prefer or not or like this or that precedent, I’m sending a signal, a ‘promise of preview,’ as Justice Ginsberg called it, about how I would rule in the future,” he said.

He said Blumenthal, and other senators, are grilling him on issues that are “very live with controversy, which is why you are asking about them.”

When Blumenthal questioned Barrett, he was simply retracing well-worn old ground.

In the Barrett stories, it has rarely, if at all, been mentioned that Gorsuch, an originalist Associate Justice elevated to the high court by Trump, wrote the single most important Supreme Court decision on gays, a ruling that brings gays under the ironclad shield of the Constitution’s 14th Amendment.

Why isn’t this telling but inconvenient datum mentioned in every story that displays Blumenthal’s always cleverly buried axiom that originalists appointed to the high court are bound by their originalism to issue decrees shoving gays back into the closet?

Why, to put the question in other terms, is Blumenthal consistently treated by Connecticut’s media with the solicitude one reserves for holy icons when, in fact, he has shown himself, time and again, to be a work-a-day progressive Democrat hack afflicted with an unquenchable lust for favorable publicity?

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