I’m sure you will find in A Grand Illusion, the blog to which I contributed between 2004 and 2007 before this little project got off the ground, a piece by yours truly in which I explained in what I thought was reasonable, reasoned prose that George W. Bush was president, thus deserved to nominate whomever he liked to the Supreme Court. Even in 2017, twelve hours after President Donald J. Trump introduced Neil Gorsuch as if he were a winner on The Apprentice, knowing the horrible decisions written or endorsed by Justices John Roberts and Sam Alito, I would’ve said Bush had every right to nominate them and Democrats had every right to vote yea or nay.
But, again, it’s February 2017, two weeks from the anniversary of the death of Antonin Scalia, as a result of which Barack Obama nominated the definition of a milquetoast moderate – and watched for ten months as Merrick Garland received the same contempt with which Obama himself was acquainted. He didn’t deserve the seat, like Barack Obama doesn’t deserve to be president.
Garland didn’t get a hearing. He would probably not have garnered the votes necessary to replace Scalia. It doesn’t matter – he got no hearing. I’m under no illusions about Gorsuch. Unless the world learns he loved Grease 2 and sleeps nude on fruit, the GOP has the votes to confirm him. The GOP has learned even in defeat that nothing keeps a base in perpetual ferment than a unifying idea (“Liberals are evil because they want to appoint judges who believe you can kill your unborn babies”). Democrats lose because they think explaining things to the public rallies them. Battle cries are balms. Battle cries unite.
As for Gorsuch himself, he may be a nice man who makes good pasta but in his opinions he has shown himself to be a corporatist nut. He also thinks the religious have an exemption carved out for them that insulates them from the rules of commerce. Charles Pierce has more succulent details:
His mother was the late Anne Gorsuch, whom President Ronald Reagan tasked with running the EPA into the ground. Gorsuch was such a good soldier at her mission that she wound up being cited for contempt of Congress. Young Neil came up through Columbia and Harvard Law, as one does. He clerked for both Byron White and Anthony Kennedy on the Supreme Court and for longtime rightwing federal appeals Judge David Sentelle, who overturned the Iran-Contra sentences of Oliver North and John Poindexter. He was also central to replacing Robert Fiske, the original Whitewater special prosecutor, with the egregious Kenneth Starr, whereupon the Great Penis Chase of the 1990s was off to the races. Gorsuch clerked for Sentelle from 1991 to 1992, when Sentelle was just getting warmed up.
Joe Scarborough and “Mika,” smiling like tetanus victims, applauded the president’s statecraft and flair for drama. It was a Good Night, they decided. Moreover, Gorsuch is In the Mainstream. In a 2010 post written about Scalia, Scott Lemieux exposes the cruel and ultimately subjective nature of “originalism”: “Since originalism 1) leads to grossly unjust results that are not remotely compelled by constitutional texts, and 2) as we’ve seen does very little to constrain judicial discretion, who needs it?”
The definition of originalism – cruelty with anersatz constitutional sheen.