More Gorsuch Melodrama, a comment by Political Cynic

Where has Courtney Weaver been? As reported in Time Magazine of March 22,2017: Judge Gorsuch’s decision in Thompson  R2-J School District v. Luke P. has been overturned unanimously by the Supreme Court! Even his fellow reactionaries on the Court rebuked him! Gorsuch’s reported response: That’s fine.

This ‘Confirmation Hearing’ is  awash in political kitsch and cynical posturing by a Neo-Confederate/Originalist candidate, who has simply evaded any substantive answers to questions by the Democrats: whose momentary re-discovery of their own backbones has been, or will be short lived. If Garland had reached the hearing stage, it would  have been the Democrats fawning over the ‘questioning’ of another unimpressive judicial careerist.

On the Committee Chairs: Grassley looks like what he is, a hick reading speeches written by one of his more politically sophisticated hirelings. Feinstein looks like what she has always been, a political opportunist, who entertains the notion that she has somehow broken that Senate glass-ceiling. Her own highfalutin self-conception is demonstrated by her careful,even punctilious, observance of the institutionalized courtesies of the Senate Gentleman’s Club.

On the  Nuclear Option: with the Ryan Plan badly faltering, and the Gorsuch nomination in trouble, will the Republicans, under the banner of Trump political nihilism, make that fateful move, freighted with so much melodrama, so  fraught with danger?

Political Cynic

@Truth and Honour @StephenKMackSD

Thank you for your comment. One is struck by the fact of precedent, and the part it plays in American Law. Yet in the case of Brown v. Board, the reader is confronted with the declaration, by Earl Warren, that the psychic/psychological well being of black children had a primary importance for the American polity! The question that needs to be asked : did Brown follow any known precedent ?

Admittedly this is a very rough sketch, of another kind of court, in another time and historical place but is illustrative of what a judge might do, or how a judge might act creatively, to take ‘the redress of grievances’ as legitimate.function of the court. Judge Gorsuch’s record is very clear! He is a reactionary ideologue, he is Robert Bork with a cosmetic make over, so he doesn’t look like a character out of ‘Uncle Tom’s Cabin’! He and his Federalist Society allies will  return us this halcyon world of a re-imagined 1859.

This Brown opinion was dubbed ‘Sociology’ by the nascent legal branch of American jurisprudential philosophy called ‘Originalism’, or simply helped an already existing reactionary strain of American Political Romanticism, gain a foothold into respectable legal circles. Rehnquist‘s whole career was built on the foundation of his challenging black voters in Arizona. See the The Partisan: The Life of William Rehnquist’ by John A.Jenkins for the dismal particulars of his life and career. Gorsuch is his natural heir. 

What does this have to do with the question of de minimis in the case of Luke P.?Played out as proof of the Gorsuch judicial virtue, in the exchange you quote, in which Gorsuch adopts the role of victim of Durbin’s bulling. This whole process of Confirmation is awash in cheap melodrama and political kitsch, the perfect arena for ‘The Martyrdom of Gorsuch’!

Yet again their is further evidence in the case of Alphonse Maddin that Gorsuch was what? The particulars here:

Should we look to Robert Fetter,attorney for Mr. Maddin, as to how Gorsuch behaved toward him in the courtroom setting?

ROBERT FETTER: Well, in January of 2016, I traveled from Detroit to Denver to oral—to oral argument before the 10th Circuit. When you appear, you appear all at one time with several cases, and you all get called when your turn comes up. We happened to be the last one of that morning session. And I was watching the judges, because it’s all the same three-judge panel, as to what their demeanor was. And I looked with particular interest with Judge Gorsuch, because I knew he was a very conservative judge. And I watched in most of these cases, which were uncontroversial, and he was seemingly either disinterested or pleasant to the attorneys. But it seemed like that was a stark change when our case was called. Judge Gorsuch was incredibly hostile. As attorneys on appellate panels, you have some judges that are hostile. And I’ve litigated many cases in appellate courts. And he—that stood out, because he may have been the most hostile judge I’ve ever appeared before. In fact, it came back to me, interestingly, when I watched Senator Franken’s questioning of Judge Gorsuch, which some described as hostile. But that’s a similar type of tone that Judge Gorsuch took with me when I was arguing Mr. Maddin’s case.

What about Sen Al Franken’s questioning of Gorsuch on this Maddin case:

SEN. AL FRANKEN: But the plain meaning rule has an exception. When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now, I had a career in identifying absurdity, and I know it when I see it. And it makes me—you know, it makes me question your judgment.


@Truth and Honour @Paul A. Myers

‘Talk about unsubstantiated and inflammatory.’ 

Sen. Sheldon Whitehouse seems to take quite seriously Gorsuch’s financial backer Mr. Anschutz! The senator took this as significant, because it is significant! Your attack on the integrity, not to speak of Mr. Myer’s veracity, is unsurprising given your other posts. Mr. Myers signs his name to his posts, one of the measures of his intellectual integrity! Will you follow his example! Probably not!   

‘AMY GOODMAN: Supreme Court nominee Neil Gorsuch is back on Capitol Hill for a second day of questioning before the Senate Judiciary Committee, Gorsuch tapped by President Trump to fill the seat left vacant by Antonin Scalia’s death over a year ago. President Obama nominated Merrick Garland to replace Scalia at nearly a year ago, but Republicans refused to even hold hearings, fearing Garland would tip the ideological balance. During Tuesday’s hearing, Neil Gorsuch faced questions about his views on the Supreme Court’s Citizens United ruling and the $10 million dark money campaign that is supporting his nomination. This is Democratic Senator Sheldon Whitehouse of Rhode Island.

SEN. SHELDON WHITEHOUSE: How would you describe any differences that you may have in judicial philosophy with Chief Judge Garland?

JUDGE NEIL GORSUCH: I would leave that for others to characterize. I don’t like it when people characterize me, and I would not prefer to characterize him. He can characterize himself.

SEN. SHELDON WHITEHOUSE: What’s interesting is that this group sees a huge difference between you that I don’t understand. The dark money group that is spending money on your elections spent at least $7 million against him getting a hearing and a confirmation here, and indeed produced that result by spending that money. And then, now, we have $10 million going the other way. That’s a $17 million delta. And for the life of me, I’m trying to figure out what they see in you that makes that $17 million delta worth their spending. Do you have any answer to that?

JUDGE NEIL GORSUCH: You’d have to ask them.

SEN. SHELDON WHITEHOUSE: I can’t, because I don’t know who they are. It’s just a front group.

AMY GOODMAN: Senator Sheldon Whitehouse went on to ask about billionaire Philip Anschutz, who has close ties to Judge Gorsuch.

SEN. SHELDON WHITEHOUSE: If a question were to come up regarding recusal on the court, how would we know that the partiality question in a recusal matter had been adequately addressed if we did not know who was spending all of this money to get you confirmed? Hypothetically, it could be one individual. Hypothetically, it could be your friend, Mr. Anschutz. We don’t know, because it’s dark money. Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort and we don’t know who’s behind it?

JUDGE NEIL GORSUCH: Senator, there’s a lot about the confirmation process today that I regret.’


@Truth and Honour

I deeply appreciate your thoughtful reply! If you are interested, see my comment here:

On Fukuyama’s ‘The Decay of American Political Institutions’ from November 2, 2016, in which I focus on Brown, and use the letters of Learned Hand to Felix Frankfurter:

‘Reason and Imagination: The Selected Correspondence of Learned Hand’ in the December 5, 2013 edition of The New Your Review of Books (Behind a pay wall):

In which Hand conducts a dialogue with Frankfurter on the vexed question of Brown and ‘legislative intent’ as having political/legal primacy.  I’m sorry but the ‘legislative intent’ argument is based in entrenched white privilege. The simple test might just be, had Hand ever experienced racism or seen it in action? Hand even called Earl Warren a dictator in one of his letters to Frankfurter. Lincoln Caplan, who wrote the review, argues that the reason Hand is so respected is that his position on Brown had ‘evolved’ into a negative opinion. And therefore was worthy of respect. Caplan even argues that Hand is revered for his’ judicial integrity’, that places ‘Legislative Intent’ in a primary legal/political position. I can’t agree with that!

Let me say that if Thurgood Marshall and the NAACP had waited for a change of mind and heart of America’s legislators, the demise of Jim Crow and its instrument of oppression the Segregated School, would have never happened. Yet the very history of Brown is the central animating reason for the birth of The Federalist Society. See John Dean’s ‘The Rehnquist Choice’ for the particulars on the Nixon appointment of Rehnquist to the Supreme Court.

Brown was chipped away by those Federalist, as the Neo-Confederate/Originalist appointed by a Republican Party, thoroughly infested by the Dixiecrat Migration from the Democratic to the Republican Party after the passage of the Civil Rights and Voting Right Acts of the Johnson Years.

Read ‘Minding The Law’ by Amsterdam and Bruner, published by Harvard University Press in 2000. This book critiques, as I recall, five Supreme Court decisions. It is the most important book published on Supreme Court decisions, and American Law in this young Century!

Best regards,


About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer. 'Polemic is a discourse of conflict, whose effect depends on a delicate balance between the requirements of truth and the enticements of anger, the duty to argue and the zest to inflame. Its rhetoric allows, even enforces, a certain figurative licence. Like epitaphs in Johnson’s adage, it is not under oath.'
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