Posted by on February 1, 2017 2:52 pm
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Categories: 10th Circuit U.S. Court of Appeals 10th U.S. Circuit Court of Appeals in Denver Antonin Scalia civil society Conservatism in the United States donald trump Economy Elizabeth Warren Executive Authority Filibuster in the United States Senate First Amendment Gorsuch Law Neil Gorsuch Nomination obamacare Politics Politics of the United States Reality Roe v. Wade Senate Supreme Court Supreme Court of the United States The Left Third Circuit U.S. Court of Appeals Thomas Hardiman U.S. Court of Appeals U.S. Supreme Court United States courts of appeals Wall Street Journal Washington D.C. William H. Pryor Jr.

Submitted by Mike Shedlock via,

Donald Trump named Neil Gorsuch to succeed Antonin Scalia on the Supreme Court.

The leading candidates for the job all had strong conservative credentials.

Gorsuch, 49, joined an opinion in 2013 saying that owners of private companies could object on religious grounds to a provision of the Obamacare health insurance law requiring employers to provide coverage for birth control for women.

Hardiman, 51, has embraced a broad interpretation of the constitutional guarantee of the right to bear arms and has backed the right of schools to restrict student speech.

Pryor, 54, has been an outspoken critic of the court’s 1973 landmark Roe v. Wade ruling legalizing abortion, calling it “the worst abomination of constitutional law in our history.”

Is “Dilbert Persuasion Theory” in play?

I use that name in reference to Scott Adams the creator of the “Dilbert” comic strip. Adams proposed that Trump says and does things so extreme, and so many extreme things at once, that all Trump has to do is move a bit the other way to have his critics on the run.

Let’s put that theory to the test today starting with The Hill article Trump Taps Neil Gorsuch for Supreme Court.

Trump named Gorsuch, a well-respected conservative who sits on the Colorado-based 10th Circuit U.S. Court of Appeals, after a drama-packed day that resembled the president’s former reality show “The Apprentice.”

After narrowing his list of 21 picks to Gorsuch and Judge Thomas Hardiman of the Third Circuit U.S. Court of Appeals, both men came to Washington, D.C., giving the appearance that either could be picked.

Gorsuch is likely to face a tough confirmation battle, though he was seen as a less provocative choice for the court than Bill Pryor, the circuit judge for the U.S. Court of Appeals for the Eleventh Circuit.

Pryor was a favorite of outside conservative groups, but his controversial views might have made it difficult for Democrats to avoid filibustering him. He has argued that gay people should be prosecuted for having sex, and that abortion should be outlawed including in cases of rape.

Although Pryor did not make it to the final two, he is in the on deck circle. Pryor’s views on abortion are extreme. Here is an article that came up just today William Pryor & Abortion: 5 Fast Facts You Need to Know.

Positions of Hardiman and Gorsuch

Please consider Politico excerpts on Thomas Hardiman.

While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.

Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.

Wikipedia notes that Neil Gorsuch “has never had the opportunity to write an opinion on Roe v. Wade. However, based on the opinions expressed in his book opposing euthanasia and assisted suicide, some speculate that he may tend to rule in favor of pro-life stances in abortion-related cases.”

Hill Continues

Sen. Jeff Merkley (D-Ore.) has promised to raise procedural objections to any Supreme Court nominee from Trump, meaning Gorsuch will likely need 60 votes.

But it is unclear whether Democrats at large will back a filibuster. Republicans have 52 seats in the Senate, meaning they need eight Democratic votes to break a filibuster. Ten Democrats are up for reelection in 2018 in states won by Trump in the presidential race. It may be difficult for them to filibuster a nominee such as Gorsuch — though they will be under tremendous pressure from liberal groups to do so.

Neither Gorsuch nor Hardiman will be the lightning rod that Pryor would have been.

Although Pryor did not make it to the final two, he was in the final 21.

Silver Lining?

The Wall Street Journal points out Judge Neil Gorsuch Is Critic of Legal Doctrine That Bolsters Executive Authority.

Judge Neil Gorsuch, President Donald Trump’s nominee to the U.S. Supreme Court, is seen by the right as a credible heir to the late Justice Antonin Scalia. But in one respect, his judicial record could offer Democrats something of a silver lining.

As a member of the 10th U.S. Circuit Court of Appeals in Denver, Judge Gorsuch has emerged as a leading critic of a Reagan-era judicial doctrine that has helped to bolster the power of the executive branch.

Persuasion Theory

For more on persuasion theory and why it may apply here, please see Trump Ban: Inept Policy or Purposeful Action? WW III?

Persuasion play or not, we can all (except the homophobic radical right nut cases) be thankful that someone who believes that gay people should be prosecuted for having sex, did not make it to the Supreme Court.

We can also be grateful Gorsuch is not in favor of expanding the executive branch.

From the point of view of the Left, Gorsuch may very well be the best they could have hoped for. The Left would be foolish to block this pick.

I suspect relatively smooth sailing if Gorsuch handles himself well in senate hearings.

*  *  *

But then again, there’s Elizabeth Warren… The Massachusetts Democrat writes on Facebook that she’ll vote against Gorsuch. Her full post is below:

President Trump had the chance to select a consensus nominee to the Supreme Court. To the surprise of absolutely nobody, he failed that test.

Instead, he carried out his public promise to select a nominee from a list drawn up by far right activist groups that were financed by big business interests.

Judge Neil Gorsuch has been on this list for four months. His public record, which I have reviewed in detail, paints a clear picture. Before even joining the bench, he advocated to make it easier for public companies to defraud investors. As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases. And he has demonstrated hostility toward women’s access to basic health care.

For years, powerful interests have executed a full-scale assault on the integrity of our federal judiciary, trying to turn the Supreme Court into one more rigged game that works only for the rich and the powerful. They spent millions to keep this seat open, and Judge Gorsuch is their reward.

Every day, our new President finds more ways to demonstrate his hostility for our independent judiciary, our civil society, and the rule of law.

Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans – civil rights, women’s rights, LGBT rights, and all other protections guaranteed by our laws. We don’t need another justice who spends his time looking out for those with money and influence.

Based on the long and well-established record of Judge Gorsuch, I will oppose his nomination.

And Democratic Senator Jeff Merkley has vowed to pursue a procedural hurdle called a filibuster for Trump’s nominee, meaning 60 votes would be needed in the 100-seat Senate unless its long-standing rules are changed. Trump’s fellow Republicans hold a 52-48 majority, meaning some Democratic votes would be needed to confirm his pick.

“We need to fight this Constitution-shredding gambit with everything we’ve got,” Merkley said in a statement.

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