Senator Franken Demonstrates The Absurdity Of Gorsuch’s Judicial Philosophy And The Dishonesty Needed To Hide It

The Senate Judiciary Committee today voted to move the confirmation of Judge Neil Gorsuch to the full Senate. The New York Times also reported that “Democrats Now Have Votes To Filibuster Gorsuch Nomination.” It will be an interesting week.

When she announced her opposition to the confirmation of Neil Gorsuch, Senator Claire McCaskill wrote:

I cannot support Judge Gorsuch because a study of his opinions reveal a rigid ideology that always puts the little guy under the boot of corporations. He is evasive, but his body of work isn’t. Whether it is a freezing truck driver or an autistic child, he has shown a stunning lack of humanity.

“He has shown a stunning lack of humanity” is, well, a rather stunning statement about anyone nominated to the Supreme Court. But if you look at the two cases she cited, a reasonable person can conclude that humanity comes in a distant second to Gorsuch’s strange judicial philosophy and the record that accompanies it.

I want to focus on the freezing truck driver case, decided just last year in Gorsuch’s 10th U.S. Circuit Court of Appeals in Colorado. The case involved a company called TransAm Trucking and one of its drivers, Alphonse Maddin. The driver eventually won his case, and here’s how the judges who ruled in his favor summarized the bare facts involved:

In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.

Below I have posted Senator Al Franken’s discussion of this case today during the Judiciary Committee hearing, as he gave his reasons for opposing Gorsuch’s confirmation (which echoed McCaskill’s concern about Gorsuch siding with corporate interests over the interests of people). You will not find a more powerful argument against confirming Gorsuch. If you needed no other reason—and there are plenty—to oppose the nomination of an “originalist” or “textualist” Judge Gorsuch, the case of the freezing truck driver would be enough. Before you watch the short clip below, I want to share with you part of Gorsuch’s dissent in the case:

A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Senator Franken discussed that last bit of nonsense from Gorsuch, since, after all, the judges who sided with the truck driver were also applying the law. So something made them apply the law one way and something made him apply it another. What was it? Was it merely a fondness for corporations over people? Or was it a flaw in his judicial philosophy? I want to share with you something Joplin blogger Jim Wheeler wrote the other day, defining Gorsuch-Scalia judicial philosophy magnificently:

Originalism…amounts to attributing to the founders a kind of vision they could not possibly have had and it denies to the law the application of common sense…

As you will see in the video below, Senator Franken’s passionately makes the point that whatever it is that Gorsuch uses to interpret the law and decide cases, common sense has nothing to do with it. And because common sense has nothing to do with it, absurdity—and the need to be dishonest to hide the absurdity—is the result. Watch:


When It Comes To Democracy, Tea Party Conservatives Lack “Basic Mental Ingredients”

I just can’t get the Supreme Court’s Voting Rights Act decision out of my head, particularly as I observe what trouble Egyptians are having establishing a bona fide democratic government. It’s just not that easy to form a true democracy and then maintain it. It’s taken us 237 years and we still don’t have it quite right.

As was widely reported at the time, just a couple of hours after the Supreme Court made the country safe again for restrictive, Jim Crowish voting laws in the South and elsewhere—via its ideologically-driven 5-4 mutilation of the Voting Rights Act—the Attorney General of Texas said:

With today’s decision, the State’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.

Republicans in Texas developed the state’s blatantly discriminatory voter ID law and redistricting plan obviously in order to suppress and dilute the vote of minorities, who don’t value Tea Party conservatism as much as palefaces do.

Texas is—uh, was—required under Section 5 of the Voting Rights Act to get approval from the Justice Department or the D.C. federal court before it could breathe new legal life into Jim Crow, and thanks to two separate panels of federal judges, reactionary Republicans in Texas failed to get what they wanted. The federal court found that racial minorities would be disproportionately and negatively impacted by both the voter ID law and the redistricting plan and thus blocked them.

But the Supreme Court, with its conservative majority full of phony “originalists“—folks who ostensibly believe in a Dead Constitution—essentially disabled Section 5 of the Act by striking down the “formula” in Section 4, the formula that determined which states and jurisdictions were covered under Section 5’s preclearance requirements.

Now, as Nina Totenberg reported on NPR Friday morning, it happens that not all conservatives are happy with the Court’s ruling in Shelby County v. Holder:

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration’s advocate in the Supreme Court, thought the court’s decision was just wrong.

“Because we’re not there yet,” he says. “We’re not there yet, and the facts on the ground in Shelby County itself showed that.”

The reactionary virtual-rag responded to Totenberg’s reporting by, what else, suggesting Charles Fried is not an authentic right-winger, as his opinions “are not usually conservative.”

Okay. Totenberg quoted another conservative constitutional law scholar, Michael McConnell, director of the Stanford Constitutional Law Center:

Stanford’s McConnell says the decision’s reasoning is just “made up.”

“There’s no requirement in the Constitution to treat all states the same,” he said. “It might be an attractive principle, but it doesn’t seem to be in the Constitution.”

McConnell’s conservative credentials are unimpeachable. He has defended originalism in ways that would make Antonin Scalia blush. He was appointed to the United States Court of Appeals for the Tenth Circuit by George W. Bush. He was also considered as a “short list” candidate to replace Chief Justice William Rehnquist—the job would go to Bush-appointee John Roberts, who authored the majority opinion in the Voting Rights Act case—and was also rumored to be a potential Court nominee under a McCain or Romney administration. McConnell also supports a partnership between a “neutral” federal government and religion, as well as a constitutional amendment that would outlaw abortion. So, McConnell cannot be charged with being a phony right-winger.

But because of the consistency of his originalist approach to constitutional interpretation, he would not have joined the majority in the Voting Rights Act case, writing:

Conservatives should be wary of reading specific prohibitions into generalized structural principles, just as liberals should be (but are not) wary of reading specific prohibitions into generalized notions of “liberty.”

The problem is that this conservative Court has made, and will continue to make, a living by reading into the Constitution what it wants to find there, even as its most outspoken members attack liberals for believing in a Living Constitution. If such hypocrisy were not so damaging it would be amusing.

But it is damaging, as the Texas Attorney General’s announcement made clear. Minority voters will be harmed—heck, the state admitted it to the Justice Department—and such harm will not stop with Texas. As Time’s Swampland notes:

Since the high court’s ruling on June 25, four of the other 15 states covered by Section 5 of the Voting Rights Act — Mississippi, Alabama, North Carolina and Virginia — are in position to move forward on tightening voting laws.

Conservatives, whose ideas have limited appeal, have always wanted to limit participation in the democratic process and it took Congress, acting in 1965, to finally put a stop to it. So, conservatives found another way to restrict voting: overrule Congress in the name of judicial restraint!

As I said, I just can’t get over it. The day the Court gutted the Voting Rights Act was a bad day for American democracy, even as some conservative folks are today throwing rocks at Egyptians struggling to find their democratic way. David Brooks, a conservative but not a Tea Party nut, ends his Friday column by saying that Egypt “seems to lack even the basic mental ingredients” necessary for a transition to true democracy.

I wish he would say the same about conservatives on the Supreme Court and in certain parts of the country.

Does Antonin Scalia Have Alzheimer’s?

Whatever Glenn Beck has been smoking the past few years, he must have passed the pipe to Antonin Scalia.

Or maybe it’s just an early sign of Alzheimer’s.  In both cases.

Whatever it is, Scalia has managed to make himself look like a Tea Party nut, which really isn’t that hard for a Republican to do these days.

When asked whether “we’ve gone off in error” by applying the equal protection clause of the Fourteenth Amendment to both sex discrimination and sexual orientation, the judicial fundamentalist said:

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that…

I’m not going to bother quoting the rest of his statement, but I will bother to quote the relevant language in the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You may wonder how anyone can misunderstand the words “nor deny any person…the equal protection of the laws.” You may wonder, but not a man who fashions himself an “originalist,” which is just another way of saying he is the Jerry Falwell (Devil rest his soul) of constitutional interpretation.

You see, the Bible says God created the world in six days, science be damned. And the Constitution says women and gays (and by logical extension, Latinos, Jews and female Blacks) don’t have equal protection because those who wrote and ratified the Fourteenth Amendment didn’t particularly have women or gays or Latinos or Jews or female Blacks in mind when they did so.

So, under Scalia’s Falwellian judicial philosophy, if women, and others not originally and explicitly envisioned as deserving equal protection of the law, want that equal protection, they will have to get the legislature to guarantee it. “Persuade your fellow citizens it’s a good idea and pass a law,” Scalia says.

Never mind that conservative Chief Justice Warren Burger—and all of his colleagues—ruled in 1971 that women were protected under the Fourteenth Amendment. And never mind that here in 21st century America it is just plain silly to construe the Constitution in such a way that eliminates equal protection of the law for more than half of the population.

And never mind that Scalia’s originalist interpretation of the Fourteenth Amendment turned to goo when it was politically convenient. As Adam Cohen pointed out:

Justice Scalia doesn’t even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush’s right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

I think this is an appropriate time to remind everyone that Antonin Scalia was nominated to the Supreme Court by Ronald Reagan in 1986.  He was confirmed by the U.S. Senate in a remarkably close vote: 98 to 0.

Can anyone today imagine a judicial nominee who is as far to the left as Scalia is to the right getting a seat on the court with a 98-0 vote?  Heck, such a nominee wouldn’t even get all the Democratic votes.

In any case, Scalia was chosen by Reagan for two reasons: he was very young and he didn’t have too many of those tell-tale opinions floating around that would clue us in to his Falwellian fundamentalism.

It’s sort of like if the Falwellian Jerry Falwell wanted to infiltrate the Unitarian Universalist Church, he would have to do so before they discovered he was a uber-Baptist who believed that Unitarians were headed straight for hell.

But for all his talents (his opinions are fun to read), we can now regard Antonin Scalia as, in the best case but still sadly, Glenn Beck with a law degree.  Is Goldline a sponsor of today’s conservatie Supreme Court?

Or, in the worst case, we are observing the first ravages of dementia, as Alzheimer’s sinks its teeth into the brain of a man whose faulty fealty to literalism seemingly knows no bounds.

I say “seemingly” because maybe we are merely observing the behavior of a man who is nothing but a hack for the Republican Party. Here is Adam Cohen again on the Citizens United decision, in which Scalia and is conservative colleagues anthropomorphized corporations:

It is a strange view of the Constitution to say that when it says every “person” must have “equal protection,” it does not protect women, but that freedom of “speech” — something only humans were capable of in 1787 and today — guarantees corporations the right to spend unlimited amounts of money to influence elections.

A strange view, indeed.  But not if you are a Republican.

Piss Off Orrin Hatch And Nominate Diane Wood To The Supreme Court

At the risk of turning off regular readers, the pending resignation of Justice John Paul Stevens cries out for a 2000-word essay on why Diane Wood should be Obama’s nomination to replace the “liberal” voice on the Court.

Okay.  I won’t write 2000 words, but I do find Judge Wood very interesting, particularly her approach to judging.  Stay with me, if you want to have a little ammo to combat the onslaught of hysteria and ignorance that will be forthcoming in the philosophical battle over who will be the next justice on our highest court.

In a lecture she gave in 2005 titled, “Our 18th Century Constitution in the 21st Century World,”  Judge Wood, who sits on the Seventh Circuit Court of Appeals, shows why she would be a match for any conservative currently sitting on the high court.

She begins her talk with this:

Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by.  For many, if not most, other things in today’s frenetic world, value is evanescent.  

I like her already.

But, more important, she has a philosophically tenable counter to the originalism espoused by most conservatives, not only those on the Supreme Court, but those Constitutional experts like Rush Limbaugh and Sean Hannity and, of course, Fox “News” scholar, Glenn Beck.*

Wood contrasts the “originalist approach” (think: Antonin Scalia and a hopped-up Limbaugh) with the “dynamic approach” (think: nearly everyone else) and she clearly sympathizes with the dynamicists:

If…one is willing to give the broad provisions in the Constitution and its Amendments a generous reading, thereby validating the many adaptations that the Court and country have endorsed over the years, our old Constitution has stood the test of time admirably.  

Indeed, it has:

The basic charter that suited a small, relatively powerless, rural economy with a population of 3.9 million now serves a global superpower of nearly three hundred million citizens, where economically the relevant stage is the entire world, where national and global communications are instantaneous, and where it is easier to get from New York to Honolulu than it once was to get from New York to Philadelphia.

Not content, though, with the old categories, Wood wants to move beyond them:

It is end the long-standing and unproductive methodological debate over “originalism” versus “dynamism” or “evolution” and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers.

Now, were I to go on and cut and paste from the rest of her lecture, things like,

The literal Constitution, for which some have argued, would be a woefully inadequate document for the American people today…


The Federalist Papers and other documents from the Founding period make it abundantly clear that the Framers knew that they were creating a set of constitutional standards, not prescribing rigid constitutional rules…

this little posting would go well beyond 2000 words and would go unread by the average net-surfer. But suffice it to say that Wood’s reasoning appears to be quite sound, “liberal” though it will certainly seem to anyone who thinks the Joplin Globe is a “liberal” newspaper.

A few more highlights deserve a mention here.  Wood discusses “impoundment” (you’ll have to look it up) and the controversial War Powers Resolution (or Act, as I was taught in school) which seeks, albeit with questionable constitutionality, to limit the powers of any president to prosecute wars like, say, Vietnam.

What I find interesting, in terms of the current cries to “follow the Constitution,” coming from Tea Party law professors (with their spelling-challenged signage), is this fact, brought out by Judge Wood:

War powers bring into even sharper focus the difference between today’s Constitution and the text adopted in 1789.  Article I, Section 8, Clause 11 confers on the Congress the power “to declare War.” One could be forgiven for thinking that this short phrase must mean that the country cannot enter into hostilities without first obtaining a formal declaration from Congress, and that this declaration will specify with what country or group of countries the United States is at war. Neither of those suppositions is true in the post-Vietnam War period…

Neither is true, she says, because

1) the War Powers Resolution “specifically recognized the power of the President to commit U.S. troops to hostile action without a formal declaration of war,” and,

2) ” the idea of “war” itself has become hopelessly fuzzy. In an era where one can have “wars” on phenomena like terrorism or organized crime–in which there is no enemy with whom to negotiate, no power capable of surrender, and thus no way to know when the “war” is over–the text of the Constitution is not very helpful.”

Now, in light of the War on Terror, which most folks on the Right support enthusiastically, if extra-Constitutionally, that phrase Wood used, “the text of the Constitution is not very helpful,” is, well, very helpful.

Another area of ambiguity involves “state sovereignty,” a hot topic on the Tea Party circuit.  Writing in 2005, Wood said:

The Framers knew perfectly well that the Constitution they crafted took important powers away from the States (in response to the unsatisfactory experience under the Articles of Confederation), yet left many  powers still in state hands. With the latter especially in mind, they were careful (at least in the Tenth Amendment) to dissipate any impression of a negative inference about state power from the existence of the enumerated powers. But the express provisions of the Constitution leave much unsaid. They do not spell out, for example, answers to such important questions as whether Congress, acting pursuant to its Article I powers, may enact legislation creating rights that private parties may enforce against the States; if there is a pre-constitutional doctrine of sovereign immunity of the States, whether the scope of that immunity was absolute or restricted; and if the state sovereign immunity doctrine will evolve over the years in the same way as the foreign sovereign immunity doctrine.

The point is that there are ambiguities built into the Constitution, like who gets to determine when we are “at war,” and for how long, as well as the nature of the federal/state relationship.

And the Constitutional hand-wringing coming from folks who also think Obama is a foreign-born Muslim socialist/Communist, is not only dubious, it is flat-out indefensible.

The truth is that the Constitution is not a static set of rules, interpretable only by philosophically parochial judges.  Judge Wood’s lecture shows that the old document is in good hands when it is in the hands of those who see it as an adaptive instrument of governance.

And I wrote all of that in just under 1100 words. 

But you should read the rest of her lecture, because she has much to say about individual rights, liberty, “takings,” international human rights, “unwritten rules,” and so on.

I want to end with her short enumeration of why we, as Americans, have come to value what we value in terms of human rights, and how a 21st-century approach to interpreting the Constitution preserves what we value:

Our strong national commitment to individual rights…continues to depend on several crucial constitutional understandings that have always had their critics, and more recently have come under sharper attack. Those understandings include the following:

(1) broad language may legitimately be interpreted broadly, in a manner informed by evolving notions of a decent society;

(2) as a matter of federal constitutional law, some liberties are beyond the power of any governmental entity to deny;

(3) most parts of the Bill of Rights, in particular through the doctrine of selective incorporation, apply to state action as well as to federal action;

(4) constitutional principles can be inferred from sources such as the structure of the overall document and preconstitutional understandings.

Before anyone swallows the line of reasoning that will inevitable fall from the lips of conservative critics over the next few months regarding Obama’s latest Supreme Court nominee, one should read the words of a woman Obama should seriously consider—and then appoint—to our Supreme Court.

Who cares if Orrin Hatch gets pissed?


*Beck, performing a public service, has urged President Obama to appoint a “gay-handicapped-black woman who’s an immigrant.”  His rationale is,

She could be the devil, she could say ‘I hate America, I want to destroy America,’ and that way they’ll only be able to say, ‘Oh, Why do you hate gay immigrant black, gay, handicapped women.’ Because that’s what this has to be. It must be about.. And when I say this, I mean all of it.

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