Minor Thoughts from me to you

Tonight, President Trump nominated Judge Gorsuch to the United States Supreme Court. I'll give credit where credit is due: I didn't think President Trump would nominate someone that I liked, but he surprised me. From what I've read, I'll like Justice Gorsuch quite a bit.

I'm basing my opinion on SCOTUSblog's potential nominee profile. First of all, Judge Gorsuch is definitely qualified.

Neil Gorsuch was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, and confirmed shortly thereafter. Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department before his judicial appointment.

And he has the potential to live up to Justice Scalia's legacy. Given that Justice Scalia was my second favorite Supreme Court Justice, this is no small thing.

He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).

​It's especially refreshing to see that Judge Gorsuch shares Justice Scalia's disdain for vague and overly broad criminal statutes. A Justice should be skeptical of the government's position and should demand that criminal law be unambiguous and clearly defined. My biggest complaint with Judge Merrick Garland was that his record showed too much deference to the government. I'll be very happy indeed if a Justice Gorsuch is Scalia's heir on criminal law.

I've been seeing a lot of left wing people celebrating the Supreme Court vacancy and calling for President Obama to nominate a replacement post haste. Furthermore, they state that such a staunch originalist as Scalia shouldn't argue for the President to wait or for the Senate to refuse to vote. They argue that the Constitution gives the President the authority to appoint a justice and he should do just that—and the Senate should support him.

It's not that I don't see some level of irony here, but I don't think it's as stark as my friends on the left do. Two points.

1. The Constitution doesn't specify a time frame for appointing a replacement. "He shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court". It's not going against the original text to say that the President should wait. He doesn't have to, but neither is he required to rush into things.

2. He can nominate, but the Senate has a duty to advise him and the nomination only turns into an appointment with the Senate's consent. I think the Senate (any Senate, of any party) is well within their rights to refuse to consent to nominees that they don't like.

In fact, the Senate's refusal to consent to the nomination of Judge Robert Bork is the reason why everyone got to celebrate Justice Kennedy's majority opinion in Obergefell instead of cursing Justice Bork's majority opinion in the same.

(Note that it was a Democrat Senate that refused to consent to a very conservative Reagan nominee that led to the nomination and confirmation of the much more moderate Justice Kennedy.)

I really should start posting my predictions publicly. Not only would it vindicate me when I'm right, it would keep me honest when I'm wrong.

Last week, I predicted that Justices Scalia and Roberts would be very negative towards the idea of resurrecting the "Privileges or Immunities" clause of Section 1 of the 14th Amendment. From reading his past opinions, I know that Justice Scalia isn't a big fan of overturning precedent, especially when said precedents have been around for 140 years. (The Privileges or Immunities Clause was strangeled by the Supreme Court just moments after birth, in the Slaughter-House Cases.) Everything I've read about Chief Justice Roberts says that he's a cautious incrementalist who prefers to make changes to the law in the smallest way that's likely to be effective. I was pretty sure that both Justices would be in favor of expanding gun rights but would be hostile to doing so through the Privileges or Immunities clause.

It turns out, I was right. Here's what happened during oral arguments this morning, in McDonald, et al., v. Chicago, et al..

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.”