Wednesday, February 1, 2017

NOM has another silly petition

Judge Neil M. Gorsuch
Judge Neil M. Gorsuch is, well … an interesting choice for the Supreme Court. I will get back to that. Meanwhile National Organization for Marriage thinks that it is a good idea to petition Mitch McConnell
… urging him to move forward aggressively to confirm Justice Gorsuch to the US Supreme Court. It's imperative that Senator McConnell hear from NOM's members right away so that he knows there is strong grassroots support for Justice Gorsuch.
Furthermore, according to their leader Brian S. Brown:
We will be sending a detailed analysis of Justice Gorsuch's record in the next few days, but the very fact that he was a prominent member on the list of potential judges Mr. Trump pledged to consider speaks volumes already. NOM's Chairman, Dr. John Eastman, was involved with other leading conservative lawyers, in suggesting names that Mr. Trump should consider.
Brown does not suggest that Eastman is responsible for the candidacy of Gorsuch and the correct term for a judge on a United States Court of Appeals is “judge,” not “justice.” Eastman being Eastman he was probably advocating for Bill Pryor who is a devout Roman Catholic (Gorsuch is an Episcopalian). I do not think that Brown knows why he likes Gorsuch other than the fact that he is a Republican nominee who is often likened to Scalia. Could Brown competently cite an opinion written by Gorsuch?

The petition is a waste of keystrokes and pixel-wear. It is a reasonable certainty that McConnell is already predisposed to expedite the confirmation of any Trump nominee. According to the petition:
… judicial activism has been evident in many decisions of the last several decades, including notably the fateful Roe v. Wade decision on abortion in 1973 and the much more recent Obergefell decision that sought to supplant a radical redefinition of marriage for what marriage intrinsically is: the union of one man and one woman. Like Justice Scalia whom he will replace, Judge Gorsuch surely sees the errors of these decisions and, if given the opportunity, will rule to overturn them and put our country back on the right track of respecting life and marriage.
This is the usual conservative Catholic bullshit which essentially says that we should embrace the teachings of the Church as public policy. The Court, and might, continue to chip away at Roe by allowing states to effect anti-abortion measures which people with some money can evade by going out-of-state. I strongly believe, however, that Obergefell is settled and highly unlikely to be overturned. Unlike Roe, Obergefell is hard to dent with any impact. Either gays can or cannot get married comparable to heterosexuals.

I really don't know why NOM does these things. Relevance for the irrelevant? Perhaps it is a way of managing their mailing list. The link to the petition at ActRight is redirected with a unique code through VerveMail. NOM knows who opens and who discards emails. They know if their email is tagged as junk or spam. NOM knows which recipients click on the links in the email. Whether or not they use this information is unknown.I suspect unlikely. Mr. Brown does not impress me as a data consumer.

Regarding Judge Gorsuch: The comparisons to Scalia are probably irrelevant and Scalia was first and foremost a conservative Catholic (although Gorsuch studied natural law through an advance degree at Oxford). Gorsuch has excellent academic and legal credentials. A graduate of Harvard Law, Gorsuch clerked for both Justices Byron White and Anthony Kennedy.  White had an interesting judicial philosophy which was to have no philosophy at all but to consider issues case by case. White dissented in Roe v. Wade but was in the majority ruling that Connecticut's ban on contraceptives was unconstitutional in Griswold v. Connecticut. Justice Kennedy, of course, wrote the opinions for the majority in Obergefell v. Hodges and Lawrence v. Texas. (Note to self - get dates of Gorsuch clerkships).

The case most immediately imperiled by Gorsuch might be the transgender case, Gloucester County School Board v. G.G. and not for the reason you think. The questions before the Court deal with the effect, authority and enforcement of the Department of Education's guidance regarding transgender students.

At issue could be the doctrine of Chevron deference. Essentially that allows government agencies to enforce broadly defined laws in any way that is not clearly forbidden. Gorsuch has opposed Chevron deference in a couple of cases (a doctrine, by the way,  that Scalia defended). I expected Gloucester to be argued in the February sitting. That was incorrect and oral arguments have not been scheduled. Justices can only rule on cases in which they were on the Court for oral argument. Timing is everything and we do not have the schedule past February. It is unlikely that Gorsuch could be seated before early April.

More disturbing is Gorsuch's ruling in Hobby Lobby v. Burwell. Gorsuch gave voice to the notion of complicity. This is the belief that adhering to a law makes a person complicit in the outcome. It gives credibility to the claims that bakers are participating in an event that violates their religious principles when they bake a cake for a same-sex wedding. That seems pretty idiotic. Whether or not Gorsuch would balance some notion of complicity against the competing interests of LGBT people remains unknown. Furthermore, Scalia's opinion in Employment Division v. Smith is precedent in that there are no religious exemptions to otherwise valid laws. Hobby Lobby is not comparable because of the enormous difference in burden placed upon Hobby Lobby in contrast to a florist who is a religious objector. I am reminded that, with Scalia still alive, the Court declined to hear the case of the wedding photographer (Elane Photography v. Willock).

Additionally, Gorsuch joined an opinion that denied an incarcerated trans woman the right to obtain hormone treatments and to wear makeup. Was it because it was up to the state or because he is anti-LGBT?

One thing is a near certainty. If Gorsuch is confirmed he could be on the Court for a very long time. Gorsuch is only 49 years old. We have suffered through 26 years of Clarence Thomas and he is only 68. Thank you George-The-First.

Getting back to NOM's idiotic petition, long before Ms. McConnell has any sway over Gorsuch's confirmation, Gorsuch is going to have to testify at length before the Senate Judiciary Committee. Then they are going to have to find some Democrats who are willing to live with this guy for the next, say, 30 years. It is going to be two to three months before this goes to the floor.

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