What, exactly, is Gorsuch’s view of the use of and right to contraceptives?
Unlike the conservative justices currently on the court, during his confirmation hearing Gorsuch did not say he agreed with the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives, setting an important precedent for Roe v. Wade. The Griswold decision effectively found that a married couple has the constitutional right to privacy to choose to use contraception, and hasn’t been a very controversial decision.
Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas said they agreed with the Griswold decision. Thomas said he had “no quarrel” with Griswold. Roberts said: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”
However, the New Yorker in 2012 noted that Republican support for Griswold isn’t a given anymore, amid a new push to roll back the constitutional right to privacy. And in his confirmation hearing, Gorsuch did not clearly state he agreed with the decision. See this exchange:
Sen. Richard Blumenthal (D-Conn.): “Let me invoke your beliefs as a commentator. Do you believe it was the right result, based on your understanding of law — not your personal beliefs about whether contraceptives are a good thing or a bad thing, but your beliefs about the constitutional underpinning, the right to privacy, the Fourth Amendment, substantive due process, underpinning of Griswold versus Connecticut, was it the right result?”
Gorsuch: “Senator, I’ve consistently — I’m not picking out Griswold or any other particular case — I’ve drawn a line that I think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the United States Supreme Court, as we were talking with Senator Flake, they’re all precedents. They all deserve respect of a judge. […]
I have said, Senator, that, with this particular precedent we’re talking about, that it’s over 50 years old — weighty factor; that the reliance interests around it are many and great. I have said that it has been repeatedly reaffirmed by the United States Supreme Court. I’ve said that I cannot imagine a state actually legislating in this area. And I have said that I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously. I don’t know how much more clear I could be to you, Senator.”
Later, Blumenthal tried again:
Blumenthal: “You’re unwilling to say that. And you’re unwilling to say, as Chief Justice Roberts did about Griswold, I agree with the Griswold court’s conclusion, that marital privacy extends to contraception and availability of that.”
Gorsuch: “Respectfully, Senator, I think we’re splitting hairs. I really do because I have told you quite clearly that both of those precedents are in the realm of 50 years old, that have serious reliance interests around them, that they’ve been repeatedly reaffirmed. And Senator, what I’ve tried to do with respect to all precedents is treat them equally, in my presentation before you. Because as a judge, I come at them equally. In my line of work, a precedent is a heavy, a weighty thing. And it deserves respect as precedent, as part of our history. And …
Blumenthal: “With all due respect, Your Honor, we’re doing more than splitting hairs here, because words matter. And the words of Chief Justice Roberts and Justice Alito were different than yours. Asking you to agree that these results were correct, I think is a relevant and important question. And your declining to do so — I respect your reasons, but I think that it speaks volumes, with all due respect.”
Gorsuch: “Well, let me try one more — this way, Senator, for you. Maybe this will help. The way I look at it is, I don’t come at these issues fresh. It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris. Because a precedent, once it’s decided, it carries far more weight than what I personally think.”
Brett Kavanaugh’s Expert Evasions, Learned From Past Masters
Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.
.. His confirmation would represent the culmination of a decades-long project of the conservative legal movement
.. Democratic senators sought assurances, for instance, that Judge Kavanaugh was not “a human torpedo being launched at the Mueller investigation,” as Sheldon Whitehouse, Democrat of Rhode Island, put it.
They wanted a promise that Judge Kavanaugh would be independent of Mr. Trump, asking him, for instance, to promise to recuse himself from cases arising from Robert S. Mueller III’s investigation of the president.
Judge Kavanaugh refused. Making such a commitment, he said, would jeopardize his judicial independence.
.. Judge Kavanaugh’s general strategy was summarized in a 1981 memorandum prepared by a young White House lawyer who had been assigned the job of preparing Justice Sandra Day O’Connor for her confirmation hearings.
.. The memo’s author was John Roberts, and he took his own advice at his 2005 confirmation hearings to become chief justice of the United States... he demonstrated a seemingly complete command of Supreme Court precedent.He was knowledgeable but not glib, effortlessly summoning the names and summarizing the details of old decisions without indicating how they would apply to new controversies.
.. Judge Kavanaugh was less sure-footed when the questions turned from the law to his own actions.
.. “The point of having public hearings is so relevant issues can be vetted, not just for the senators but for all of us. I fear that this hearing may represent a move away from that, and back to the days of confirmations as back room deals.”
.. He used a rare colorful phrase in refusing to answer questions about Mr. Trump’s attacks on the judiciary. “I’m not going to get within three ZIP codes of a political controversy here,” he said.
“The Democrats made a fairly strong case that Judge Kavanaugh is very partisan and loyal to the president,” he said. “The nominee’s refusal to criticize the president in his attacks against the judicial branch didn’t help his case.”
.. “Justice Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan wrote.
- If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote.
- If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.
Professor Kagan explained what had counted as too specific: “Roughly, anything that might have some bearing on a case that might someday come before the court.” She also described what had been too general: “Roughly, anything else worthy of mention.”
.. his calculated praise for United States v. Nixon, the 1974 decision in which the Supreme Court unanimously ordered President Richard M. Nixon to comply with a trial subpoena to turn over Oval Office recordings. The decision would, of course, be the leading precedent if a dispute arising from the Mueller investigation reached the Supreme Court.
.. But Judge Kavanaugh ranked it among the Supreme Court’s greatest hits.
Those included, he said, just three others:
- Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional;
- Youngstown Sheet and Tube Company v. Sawyer, the 1952 decision rejecting President Harry S. Truman’s attempt to seize the nation’s steel mills to aid the war effort in Korea; and
- Marbury v. Madison, the 1803 decision that established the basis for the Supreme Court’s power of judicial review.
.. But where Judge Kavanaugh responded to questions about Roe with equivocation, he embraced the Nixon case.
“It was one of the greatest moments because of the political pressures of the time,” he said. “The courts stood up for judicial independence in a moment of national crisis.”
Still, he drew the line at saying whether, say, a grand jury subpoena calling for Mr. Trump’s testimony should be enforced. That would, he said, require him to answer a hypothetical question.
The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline
— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”
.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.
.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.
.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”
.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.
Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.
Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.
.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”
Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”
“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.
To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.
.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.
They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.
.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”
.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.
.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.
.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.
.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.
— “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. ….. ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”
SCOTUS Hearing Revealed The Character Of Neil Gorsuch AND Senate Democrats
he was so consistent and respectful, that opinion pieces have taken to denying him support, but not blaming him for it. To do otherwise would seem monstrous in the face of the kind of character on display by the Colorado Judge who some say may have learned at the knee of Kennedy, but will likely rule in the vein of Scalia.
.. Gorsuch’s immediate, and obviously habitual, graciousness to someone who sneezed was a moment worth noting.
.. Opposition to Gorsuch is absurd given his bi-partisan support, his qualifications, and his qualities as a man, and yet come it will.
.. a kind man