Tuesday, March 21, 2017


Ignorance Is No Excuse

Here is a recent article in The Week by a political science professor at a college I had never heard of before. His name is David Faris. It's about soon to be Supreme Court Justice Neil Gorsuch. I just wanted to point out a few of the legal errors it contains. First up:

Gorsuch is by all accounts a respected jurist with an unimpeachable pedigree...

Good start. Very true. But then the sentence veers into a ditch:

...albeit one characterized by a lunatic judicial philosophy that treats the Constitution as a divine revelation whose words should be interpreted with Biblical literalism.

It's hardly lunatic to use standard rules of statutory construction on the Constitution. It would be lunatic to do anything else. The Originalists say we ought to try to find the contemporary meaning the authors of the Constitution put on the words they used, that is, what the words meant in 1788. It's a completely sound tool for discovering in a writing what the intent of the writer was. Judges in America use it constantly. There's more, the big whopper:

Had Senate Republicans fulfilled their unambiguous constitutional duty by confirming the centrist Merrick Garland to the Supreme Court last year, Gorsuch could likely have filled the seat of a retiring conservative like Clarence Thomas or Anthony Kennedy more or less without incident.

The only only thing unambiguous about the "advise and consent" clause in the Constitution is that there is no duty to give consent (or even to advise). There's absolutely nothing mandatory about how the Senate reacts to a nomination, and there is no case law that would interpret anything in the clause to be required as Professor Faris imagines.

Notice too that the less than law-learned professor seems to contemplate that there are seats on the Supreme Court reserved for Originalists and seats reserved for the lefty free-wheeling justices. So Scalia would have been replaced by a slightly less looney lefty judge (thus bucking the "reservation" system, but its a Democrat choice so the rule wouldn't apply) but Gorsuch and those like him can only replace other Originalists like Thomas and Kennedy (who is not actually an Originalist). That's not how it works. And indeed Kennedy and Thomas might retire or die within the next 7 years, but the odds on favorite to vacate the premises is Justice Ginsburg, who just turned 84 and has been looking really frail lately. Both Kennedy and Breyer are a decade or so older than Thomas. So Faris is doing a little whistling past the graveyard to put Thomas in line for retirement from the bench before Breyer or Ginsburg. Nice try, Dave. He then veers into the ditch of the absurd, again:

Had Garland been confirmed and someone like Ruth Bader Ginsburg retired sometime in the next four years, Trump could probably have had Gorsuch confirmed to replace her, too, although the vote might have been close.

Right. No problem whatsoever with a Republican president replacing a lefty justice with an Originalist. None whatsoever. The stupid continues:

Gorsuch's seat was stolen by a craven act of democratic sabotage, and he will always be sitting in a chair reserved for the nominee of a Democratic president. He is illegitimate today, and he will be illegitimate 20 years from now.

Craven? Sabotage? Harsh words for the rule clearly stated and championed by recent Vice President Biden. Yeah, the Republicans were cowardly saboteurs of democracy when they used the Democrat's Biden rule. Does Dave not know about YouTube and the internet memory caches? Here is the Biden rule spelled out by Joe himself. The professor dreams on:

It is impossible to know when Democrats might regain total control of the U.S. government.

If this article is the caliber of Democrat thinking, my money is more on the never side of the bet. He continues in full fantasy mode.

But assuming that American democracy survives the high-stakes stress test of a Trump presidency, they will at some point find themselves in the commanding position the Republicans are in now. And when they do, they should be prepared to pass a law expanding the number of seats on the Court from nine to 11 and to fill the two extra seats with the most divisive, outrageous liberals in the federal judiciary.

So there are only a few things wrong with this article: The legal ignorance and the fatuous narrative. But otherwise it is solid, man. Viva la Resistance!


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