No Civil War to be Seen Here

I do wonder if the editorial page editors of the country noticed that their virtual unanimity in editorializing against Trump and endorsing anybody but Trump did not result in a lopsided win for the forces of sanity and polity?  Probably not because then they’d  have to admit they hold almost no power in society anymore, and they wrote these editorials essentially to their fellow balding, paunchy poobahs of higher ideals.

Likewise when the subject is Supreme Court nominees very important fair minded people come out of the woodwork to say what a fine jurist the nominee is and how tradition demands that President Bannon have his nominee.  Neal Katyal is such a person.  Coming from the opposite party and way of thinking it is emblematic of his eminent fairmindedness to advocate for Justice Gorsuch, but he must because America!

As Atrios says:

But as I said, we live in funny times. When that time comes, assholes like me will be more likely to remember his little note of support than will marginal senators, some of whom will likely be dead (they’re old, after all). So Katyal misfired that signal gun. When a dozen or so 5-4 decisions come down, destroying women’s health rights, religious freedom, anti-discrimination laws, LGTBQ protections, immigrant rights, etc.. etc… we’ll be there to remind him, and anyone who is thinking of sending him upstairs in his big boy gown.

Paul Campos at Lawyer’s Guns and Money (essential blog in these times) adds:

There was a time in American politics when a vague cross-institutional consensus held that presidents should get to pick Supreme Court justices whose legal-political views reflected the president’s own, subject to fairly loose constraints in regard to technical competence, personal corruption, and ideological extremism.  Those days are long gone.

Katyal is perfectly well aware of that of course, and his op-ed is a transparent attempt to curry favor with hypothetical marginal senatorial votes, should his own SCOTUS ship come in a few years from now.  (This is not a fantastical calculation on his part.  The qualifications for getting nominated have become so absurdly narrow that there literally only a few dozen people at any one time who are as a practical matter eligible, and he’s one of them).

Gorsuch’s nomination is a political act, which should be opposed for political reasons.  Blather about “principles” and “brilliance” and “temperament” just obscures the actual situation we are now in.

Translated:  We’re not in normal times.  Normal rules do not apply.  The usual political blather that was merely frustrating in the second half of the 20th century can get us all killed today.

Scott Lamieux at Lawyer’s Guns and Money adds his principled criticism to the pick itself and the absurdity of Scalia/Gorsuch obeisence.

Gorsuch will definitely be an “originalist” in the sense that Scalia was. That is, you can manipulate the levels of abstraction to reach almost any result you desire, and if there’s no possible historical case to be made for your political preference you can and will just ignore it.

And Gorsuch will also be a “textualist” in the sense that Scalia was. That is, in roughly 99% of cases the constitutional text is of no value in deciding a concrete case of any interest — OK, we have identified that the text says “unreasonable search and seizure” or “cruel and unusual punishment,” so now what? (In politically salient statutory cases, it means not mentioning legislative history in reaching the result you would have reached either way.) And in those rare cases where the constitutional text clearly forecloses your desired outcome, you can just assert that “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.”

So, yes, Gorsuch will most assuredly be an “originalist” and “textualist” in the sense that Scalia was. Which is why he should be filibustered even if his appointment was legitimate, which it isn’t.

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