Obstruct Gorsuch for his own obstructionism, not for plagiarism

It’s hard for me to get morally outraged about Gorsuch’s academic sloppiness when there are so many stronger reasons to oppose his nomination. I can’t say with a straight face that this changes the merits (and really, the demerits) of his nomination. I still care much more about his callous approach to judging (as I wrote about the frozen trucker case) and the likelihood of his non-mainstream views on gay marriage. His answers to Sen. Klobuchar about the special education decision — that he “was bound by precedent” — raised concerns about his legal writing and his thinking about precedent. He was overly eager to signal that he was bound by precedent (ahem, Roe?), but don’t bet on him to follow through, especially when he was not bound to add the word “merely” to water down a special education standard, when the case he was citing did not engage in enough analysis or application of the standard to justify Gorsuch’s minimizing that right. It was also an evasive answer, dodging the substance with an exaggerated claim about precedent.

His evasiveness may not be everyone’s biggest worry, but he was dramatically more evasive than recent nominees, and it establishes a better procedural reason for the procedural filibuster.  In 2005, I wrote an op-ed in the Boston Globe, and it may be more relevant for Gorsuch:

“The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.”

“But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.”

 

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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