Why Gorsuch is Unacceptable and Traditional Sup. Ct. Decorum Has to be Chucked

Well, the simple truth about all that wonderful senate decorum and those delicate centuries old traditions are that (1.) they don’t work all that well to make positive change, and (2.) it’s not helpful at all if only one side adheres to it.

The GOP thought they might get as many as 10-20, or more! Democrats to vote for Gorsuch out of respect for senate traditions, allowing the President latitude on a nomination and all that.  But events overtook them, Gorsuch and his Heritage Foundation, Federalist Society, libertarian corporatist patrons.

But all of that ado about to filibuster or not to filibuster or “what about Merrick Garland!” is besides the very real arguments that Gorsuch showed bad faith in his confirmation hearings and wouldn’t just be a 1 for 1 swap of Scalia, but would represent sitting a relatively young 19th century mind on a 21st century court.

Emily Bazelon and Eric Posner make the case.

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction”…

… a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that’s not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state “poses a grave threat to our values of personal liberty.”

The 80 years of law that are at stake began with the New Deal.

Gorsuch is not an umpire calling balls and strikes on the bench, to use Justice Roberts’ construction.  He’s a commissioner of baseball determining that the distance between the bases should be shorter for some persons and longer for others.  The rules that were established in the 20th century since FDR, that we all grew up with, were, in Gorsuch’s mind, wrong and unconstitutional.  His thinking seems to be to go back to the pre-union, pre-consumer protections rules of the pre-New Deal courts undermining the administrative state (which is Bannon’s fetish).  Only Congress can make laws, rules, anything, and executives cannot delegate agencies to do that.

But here’s the thing: Judge Gorsuch is skeptical that Congress can use broadly written laws to delegate authority to agencies in the first place. That can mean only that at least portions of such statutes — the source of so many regulations that safeguard Americans’ welfare — must be sent back to Congress, to redo or not.

This kind of thinking, like the senate rules and decorum spoken of above, works best to keep a status quo in a smaller country.  It works fine for conservatives who can slow progress that they felt got away from them – shrink government, protect business interests, limit regulation (and taxation).  The mechanisms of modern government have always been liberal constructions so no conservative tears are shed when they are dismantled.  In, 2017 the goal is to overturn 80 years of liberal governmental progress.

What would happen if agencies could not make rules for the financial industry and for consumer, environmental and workplace protection?

We shouldn’t find out.  And we shouldn’t pretend that all Americans accept the same premises about government and we just disagree on details.  There are strains of thought that are outside the mainstream.  Gorsuch represents such a strain underneath in a smiling, neighborly mien.  He’s the nice looking suburban guy who is on the economic justice version of the sex offender list.  Invite him to the block party, he’ll bring a nice salad, but don’t let him near your government.

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