Confirmation Hearing Was A Political Sham:
The Committee, Not Gorsuch, was the Problem
March 24, 2017, Washington D.C. A committee led by two political zealots with no background in law (Chuck Grassley and Dianne Feinstein) turned four days of testimony into a political circus. Democrats and Republicans postured, praised, and mischaracterized Neil Gorscuh's responses, made the confirmation hearing about Garland and their political agendas. All that was proven was that most of the committee members probably never actually read a Supreme court Case.
Here is a breakdown of the overall hearings:
Democratic members: You’re not Merrick Garland and we will never let you forget that. In fact, we will hold it against you that you aren’t Merrick Garland. Furthermore, if your answers are not word for word what we dictate, we’ll say you wouldn’t answer the question. or answered the opposite of what you stated.
GOP members: The Pope will be arriving soon to cannonize you into sainthood.
For most of his two days testifying, Tenth Circuit Justice Neil Gorsuch had to put up with repeated mischaracterizations of what he had said and instances where committee members demanded he tell members exactly how he would rule in future cases. It gave the appearance of a law school professor trying to prepare students for an exam, when their questions mostly called for him to read off the answers.
There were serious questions that a panel led by real attorneys would have asked in an effort to reassure Americans that the nominee would not be the key vote increasing profits of the private prison industrial complex or create an even bigger genocide of executions of the poor Blacks.
The number one reason for wrongful convictions is inadequacy of counsel provided to poor minority defendants. This is a clear violation of of the 6th Amendment Right to Effective Counsel and both the Equal Protection and Due Process Clauses of the 14th Amendment, well established principles.
Neil Gorsuch has construed the Right to Counsel very narrowly, a major concern to human rights activists. Such a narrow construction serves to all but eliminate Equal Protection, Due Process and the Right to Counsel for anyone who is a minority of low economic status. Already the lack of effective counsel in current cases has resulted in the dramatic increase in mass incarceration, with the most innocent minority and low income victims of the broken system having virtually no way to avoid a criminal conviction for crimes they haven’t committed. The panel could have asked that Neil Gorsuch spend a day speaking with exonerees who had ineffective counsel in order to learn about what the right should entail if justice is to be done. If Gorsuch does have a heart, he will listen. Certainly he, himself, wouldn’t want to be a poor defendant, locked up for life, solely because of an attorney who did a bad job representing him. Gorsuch seemed open to the opinions of the committee and instead of adding to his education on this subject, they used most of their times for political game-playing.
Barack Obama was the last President who could have nominated a candidate opposed to the death penalty. He instead choose to play games and nominate Merrick Garland on Orrin Hatch’s recommendation for the sole purpose of making the Republicans look bad for failing to approve their own guy. The rest of the Western world has abolished this barbaric practice. Countries often won’t extradite to the U.S. because of a procedure that cannot be corrected when innocence is later proven. Cruelty aside, minorities of low economic status are the ones who are executed disproportionally, dramatically disproportionately. The Committee could have gone over statistics with Garland to establish how violate of Equal Protection capital punishment is.
Gorsuch did not say he would not support Griswold v Connecticut. That was a lie put forth by Democrats on the committee who wanted him to use the only magic words they would accept. Respecting a case as a precedent is not the same as refusing to stand by that precedent.
Griswold is much more important than a contraception case. It evolved from a criminal case against a doctor (Griswold) who prescribed a contraceptive device for a woman. Griswold was probably not present in the woman’s bedroom and it wasn’t about the doctor’s own right to privacy of sex. Committee members seemed to have their minds on sex. Maybe the Podesta files deserve another look.
In Griswold, Justice William O. Douglas found a penumbra emanating throughout the Bill of Rights creating an implicit right to privacy. He found this right to privacy extending through all areas of law, clearly emanating from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. In a concurring opinion, Justice Arthur Goldberg included the Sixth Amendment in this equation. The implications extended the right to any place where there is an expectation of privacy. This is a key principle with respect to criminal and other cases. Because the Committee members did not understand Griswold, they did not clarify the extent of the principles embodied therein; It was refusal to accept the decision in Griswold v Connecticut that defeated the nomination of Robert Bork.
Clearly the Committee members have never actually read Roe v Wade or they would have known that it is not the great pro-choice case they pretended it was. It was as anti-choice (up to 2/3) as it was pro-choice. Under Roe, a woman only has a guarantee of a right to choice in the first trimester. Nowhere in the Constitution are trimesters mentioned and so the decision was simply one of judicial legislation or Lochnering. If, Harry Blackmun had simply extended Griswold to a say a woman had total control over all medical decisions involving her body, it would have been a much stronger decision and the attacks would have ended.
One troubling matter was TransAm Trucking v. Administrative Review Board (the frozen truck driver case). His opinion had no impact as it was a dissent against all the other judges on his court. However, his support for the idea that a man could be fired for taking action to save his own life and/or that of others is not a mainstream idea with respect to contract or employment law. It came across as a clever and unique approach from a law student trying to impress his professor with his creativity. One can only hope he would not have written the same decision if he were in the majority.
Some of the angriest questioning of Gorsuch’s TransAm dissent came from Comedian/Senator Committee member Al Franken (“Al Franken Decade,” “Get a Limo for Al Franken”). YouTube video of Al Franken’s questioning on TransAm (unloaded to YouTube by “CONTENT”)
Here is a breakdown of the overall hearings:
Democratic members: You’re not Merrick Garland and we will never let you forget that. In fact, we will hold it against you that you aren’t Merrick Garland. Furthermore, if your answers are not word for word what we dictate, we’ll say you wouldn’t answer the question. or answered the opposite of what you stated.
GOP members: The Pope will be arriving soon to cannonize you into sainthood.
For most of his two days testifying, Tenth Circuit Justice Neil Gorsuch had to put up with repeated mischaracterizations of what he had said and instances where committee members demanded he tell members exactly how he would rule in future cases. It gave the appearance of a law school professor trying to prepare students for an exam, when their questions mostly called for him to read off the answers.
There were serious questions that a panel led by real attorneys would have asked in an effort to reassure Americans that the nominee would not be the key vote increasing profits of the private prison industrial complex or create an even bigger genocide of executions of the poor Blacks.
The number one reason for wrongful convictions is inadequacy of counsel provided to poor minority defendants. This is a clear violation of of the 6th Amendment Right to Effective Counsel and both the Equal Protection and Due Process Clauses of the 14th Amendment, well established principles.
Neil Gorsuch has construed the Right to Counsel very narrowly, a major concern to human rights activists. Such a narrow construction serves to all but eliminate Equal Protection, Due Process and the Right to Counsel for anyone who is a minority of low economic status. Already the lack of effective counsel in current cases has resulted in the dramatic increase in mass incarceration, with the most innocent minority and low income victims of the broken system having virtually no way to avoid a criminal conviction for crimes they haven’t committed. The panel could have asked that Neil Gorsuch spend a day speaking with exonerees who had ineffective counsel in order to learn about what the right should entail if justice is to be done. If Gorsuch does have a heart, he will listen. Certainly he, himself, wouldn’t want to be a poor defendant, locked up for life, solely because of an attorney who did a bad job representing him. Gorsuch seemed open to the opinions of the committee and instead of adding to his education on this subject, they used most of their times for political game-playing.
Barack Obama was the last President who could have nominated a candidate opposed to the death penalty. He instead choose to play games and nominate Merrick Garland on Orrin Hatch’s recommendation for the sole purpose of making the Republicans look bad for failing to approve their own guy. The rest of the Western world has abolished this barbaric practice. Countries often won’t extradite to the U.S. because of a procedure that cannot be corrected when innocence is later proven. Cruelty aside, minorities of low economic status are the ones who are executed disproportionally, dramatically disproportionately. The Committee could have gone over statistics with Garland to establish how violate of Equal Protection capital punishment is.
Gorsuch did not say he would not support Griswold v Connecticut. That was a lie put forth by Democrats on the committee who wanted him to use the only magic words they would accept. Respecting a case as a precedent is not the same as refusing to stand by that precedent.
Griswold is much more important than a contraception case. It evolved from a criminal case against a doctor (Griswold) who prescribed a contraceptive device for a woman. Griswold was probably not present in the woman’s bedroom and it wasn’t about the doctor’s own right to privacy of sex. Committee members seemed to have their minds on sex. Maybe the Podesta files deserve another look.
In Griswold, Justice William O. Douglas found a penumbra emanating throughout the Bill of Rights creating an implicit right to privacy. He found this right to privacy extending through all areas of law, clearly emanating from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. In a concurring opinion, Justice Arthur Goldberg included the Sixth Amendment in this equation. The implications extended the right to any place where there is an expectation of privacy. This is a key principle with respect to criminal and other cases. Because the Committee members did not understand Griswold, they did not clarify the extent of the principles embodied therein; It was refusal to accept the decision in Griswold v Connecticut that defeated the nomination of Robert Bork.
Clearly the Committee members have never actually read Roe v Wade or they would have known that it is not the great pro-choice case they pretended it was. It was as anti-choice (up to 2/3) as it was pro-choice. Under Roe, a woman only has a guarantee of a right to choice in the first trimester. Nowhere in the Constitution are trimesters mentioned and so the decision was simply one of judicial legislation or Lochnering. If, Harry Blackmun had simply extended Griswold to a say a woman had total control over all medical decisions involving her body, it would have been a much stronger decision and the attacks would have ended.
One troubling matter was TransAm Trucking v. Administrative Review Board (the frozen truck driver case). His opinion had no impact as it was a dissent against all the other judges on his court. However, his support for the idea that a man could be fired for taking action to save his own life and/or that of others is not a mainstream idea with respect to contract or employment law. It came across as a clever and unique approach from a law student trying to impress his professor with his creativity. One can only hope he would not have written the same decision if he were in the majority.
Some of the angriest questioning of Gorsuch’s TransAm dissent came from Comedian/Senator Committee member Al Franken (“Al Franken Decade,” “Get a Limo for Al Franken”). YouTube video of Al Franken’s questioning on TransAm (unloaded to YouTube by “CONTENT”)
Gorsuch took in stride the overturning of the Tenth Circuit opinion in Endrew F. v. Douglas County School District, in which a three judge panel decided (based on Gorsuch's opinion in the prior case of Thompson R2-J School District v. Luke P) that a disabled (autistic) student’s family was not entitled to a reimbursement for a private education that provided him with the same quality assistance non-disabled students received in the public schools, where the public schools could not provide an adequate education to meet the student’s needs. Gorsuch wasn't one of the three judges that decided Endrew. Gorsuch expressed a willingness to accept the new Supreme Court decision as precedent without any appearance of animosity without any seeming concern over the conflict with one of his prior opinions. Whether Gorsuch was right or wrong in the Luke P case, his reaction to the overturning of Endrew showed a willingness to accept precedents from a judicial, rather than a personal, point of view.
The committee examined panels of people with various opinions on the subject. One of the anti-Gorsuch panelists put forth by the Democratic committee members expressed a false belief that America was at war. The U.S. is not at war under the Constitution but one anti-Gorsuch presenter was apparently willing to accept the unconstitutional permanent war doctrine. The Constitution gave the ability to declare war to Congress, not the President. The Iraq War Powers Resolution (supported by Democrats on the committee) would have expired when regime change took place in Iraq and there has been no authorization since. As for Gorsuch's time working as counsel in the Bush Administration, The Democratic leading committee member Dianne Feinstein voted in support of Bush's war agenda, his torture policy, and attacks on civil liberties, 100% of the time. Given the long list of unconstitutional votes previously made by Democrats and Republicans on the Judiciary Committee (indefinite detention without trial under the NDAA, funding for undeclared, unconstitutional wars), one has to wonder what business they had questioning Gorsuch on the Constitution. Innocent children being drone bombed in undeclared wars didn't have the opportunity to take a drive off in order to avoid certain death.
As for a filibuster, one has to ask on what grounds the Democrats would launch it. If they had asked more probative questions to get a stronger sense of Gorsuch’s position on relevant issues (such as civil rights, human rights and criminal justice) in a way that allowed him to answer the questions, instead of mischaracterizing his comments and attacking him for not being Garland, they might have found strong grounds for a filibuster. Filibustering for revenge against the GOP comes across as petty and will not impress the electorate, Gorsuch even expressed a willingness to look at the other point of view with respect to the TransAm case and thanked the committee for their insight, Since the Democrats were supporting someone (Merrick Garland) who was pro-death penalty (an otherwise good reason for a filibuster), it would be rather hypocritical of them to use that as a ground for filibustering, especially since the lead Democrat on the committee (Dianne Feinstein) supports the death penalty,, herself.
Currently, nobody is expecting Gorsuch to live up to the judicial reasoning of and standards set by William O. Douglas and Hugo Black. However, occasionally, judges become a pleasant surprise for their critics and a disappointment for those who appointed them. Dwight D. Eisenhower was disappointed in Republican Justice Earl Warren, who was a welcome surprise to the Democratic side of the aisle. Warren wrote Brown v The Board of Education of Topeka, Kansas and many other well respected decisions. Gerald Ford appointee Justice John Paul Stevens started off much more conservative and became more liberal as time went on. With time and more input from victims of injustices, Gorsuch’s philosophy may very well change for the better.
The committee examined panels of people with various opinions on the subject. One of the anti-Gorsuch panelists put forth by the Democratic committee members expressed a false belief that America was at war. The U.S. is not at war under the Constitution but one anti-Gorsuch presenter was apparently willing to accept the unconstitutional permanent war doctrine. The Constitution gave the ability to declare war to Congress, not the President. The Iraq War Powers Resolution (supported by Democrats on the committee) would have expired when regime change took place in Iraq and there has been no authorization since. As for Gorsuch's time working as counsel in the Bush Administration, The Democratic leading committee member Dianne Feinstein voted in support of Bush's war agenda, his torture policy, and attacks on civil liberties, 100% of the time. Given the long list of unconstitutional votes previously made by Democrats and Republicans on the Judiciary Committee (indefinite detention without trial under the NDAA, funding for undeclared, unconstitutional wars), one has to wonder what business they had questioning Gorsuch on the Constitution. Innocent children being drone bombed in undeclared wars didn't have the opportunity to take a drive off in order to avoid certain death.
As for a filibuster, one has to ask on what grounds the Democrats would launch it. If they had asked more probative questions to get a stronger sense of Gorsuch’s position on relevant issues (such as civil rights, human rights and criminal justice) in a way that allowed him to answer the questions, instead of mischaracterizing his comments and attacking him for not being Garland, they might have found strong grounds for a filibuster. Filibustering for revenge against the GOP comes across as petty and will not impress the electorate, Gorsuch even expressed a willingness to look at the other point of view with respect to the TransAm case and thanked the committee for their insight, Since the Democrats were supporting someone (Merrick Garland) who was pro-death penalty (an otherwise good reason for a filibuster), it would be rather hypocritical of them to use that as a ground for filibustering, especially since the lead Democrat on the committee (Dianne Feinstein) supports the death penalty,, herself.
Currently, nobody is expecting Gorsuch to live up to the judicial reasoning of and standards set by William O. Douglas and Hugo Black. However, occasionally, judges become a pleasant surprise for their critics and a disappointment for those who appointed them. Dwight D. Eisenhower was disappointed in Republican Justice Earl Warren, who was a welcome surprise to the Democratic side of the aisle. Warren wrote Brown v The Board of Education of Topeka, Kansas and many other well respected decisions. Gerald Ford appointee Justice John Paul Stevens started off much more conservative and became more liberal as time went on. With time and more input from victims of injustices, Gorsuch’s philosophy may very well change for the better.