Senate Democrats facing tough re-election battles in 2018 may have to decide if they want to hang a political anchor around their necks by joining a filibuster against Judge Neil Gorsuch, President Trump's highly credentialedSupreme Court nominee.
Predictably, Senate Minority Leader Chuck Schumer (D-N.Y.) threatened to filibuster Gorsuch in an op-ed on Politico.com and another in The New York Times, demanding 60 votes to confirm, rather than a simple majority as the Constitution allows. Schumer called Gorsuch "very smart, articulate and polite, with superb judicial demeanor" but not "mainstream."
Here's what Schumer thinks is "mainstream." "Senseless in Seattle and San Francisco" sums it up. The Ninth Circuit Court of Appeals in San Francisco upheld a temporary restraining order issued by a Seattle district court judge against President Trump's order banning entry into the U.S. for 90-120 days by those from Syria, Somalia, Sudan, Iraq, Iran, Yemen, and Libya.
Schumer should explain how judges, who aren't privy to a national security briefing, know a shish kabob from Somalia's Al-Shabaab, one of whose thugs beheaded a British soldier in London in 2013. Nonetheless, uninformed judges seized President Trump's plenary power in foreign relations and national security and substituted their ignorant opinions. Foreign nationals, who've never set foot in the United States, now supposedly have due process rights under our Constitution. It's all within the two left banks of Schumer's "mainstream."
Schumer should also explain why he now opposes Gorsuch yet joined in Gorsuch's unanimous confirmation to the 10th Circuit Court of Appeals ten years ago.
Gorsuch's record reveals his commitment to uphold the Constitution and laws as written, not those Schumer imagines. Consider:
Judicial duty within the Constitution's separation of powers Judge Gorsuch explained his judicial philosophy in his 2016 lecture at Case Western Reserve University honoring the late Supreme Court Justice Antonin Scalia: First, consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty. ... To the founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty protecting devices of the constitutional design, an independent right of the people essential to the preservation of all other rights later enumerated in the Constitution and its amendments. The ACLU, like Schumer, objectsthat Gorsuch's "commitment to an 'originalist' theory of constitutional interpretation that disregards our nation's evolving understandings of constitutional rights is also of concern."Declaration of Independence:
In his book, The Future of Assisted Suicide and Euthanasia, Gorsuch reiterates the Declaration's foundational principle of unalienable rights: "All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong." First Amendment Free Exercise of Religion Clause:Judge Gorsuch joined a dissenting opinion after the Tenth Circuit refused to grant a re-hearing by the full court in Little Sisters of the Poor Home for the Aged v. Burwell.
The opinion of the panel majority is clearly and gravely wrong – on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person's free exercise of religion.
Gorsuch joined the majority opinion in Hobby Lobby v. Sebelius, holding that the plaintiffs, a Christian family whose business is dedicated to Christ, were entitled to bring claims under the Religious Freedom Restoration Act because their religious beliefs are substantially burdened by the Obamacare contraceptive coverage requirement, including abortifacients.
First Amendment Free Speech Clause
As a college freshman in the mid-1980s, Gorsuch ran for a seat on the student senate. According to the Washington Post, Gorsuch responded to a question from the Columbia Spectator about the Marines recruiting on campus by pointing out the university's hypocrisy regarding freedom of expression:
The question here is not whether "the Marines should be allowed to recruit on campus" but whether a University and its community, so devoted to the freedom of individuals to pursue their own chosen lifestyles and to speak freely, has the right or obligation to determine who may speak on campus or what may be said. ... Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge.
Second Amendment
Judge Gorsuch noted in a decision involving the "Gun Control Act" that the "Second Amendment protects an individual's right to own firearms and may not be infringed lightly."
Fourth Amendment
Gorsuch dissented over a warrantless search of a home based on "implied consent" in U.S. v. Carloss.
Gorsuch upheld traffic stop patdowns in U.S. v. Rochin and U.S. v. Rodriguez:
Not every traffic stop is so innocuous. Sometimes what begins innocently enough turns violent, often rapidly and unexpectedly. Every year, thousands of law enforcement officers are assaulted – and many are killed – in what seem at first to be routine stops for relatively minor traffic infractions.
If Schumer insists on 60 votes to stop a filibuster, he should be reminded that in 2003, Sen. John Cornyn's office pointed to Schumer's admission on the record that "51 Senators of the majority could propose changes in the rules" [Judicial Nominations, Filibusters, and the Constitution: When a Majority is Denied Its Right to Consent, S. Hrg. 108-227, at 60 (2003)].
Call it "Patriot 51," and obliterate any attempt to filibuster a constitutionally mainstream judge eminently qualified for the Supreme Court.
Jan LaRue is senior legal analyst for the American Civil Rights Union.
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