I've been following the Gorsuch confirmation hearing off and on today, sometimes listening and sometimes following SCOTUSblog's live blog. It's pretty much the usual, predictable, and often lamentable stuff that confirmation hearings have become today.
One point I thought I would mention. At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group. Seriously? I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events. There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing. But far right?
How do we define "far" and "extreme"? By the absolute value of the distance of one's views from the American median, of course. Is the Federalist Society any further from the median than Senator Leahy himself? No.
I will leave the comment thread open for discussion of the hearing generally. Here is a seed question: Who has been the biggest jerk among the Senators so far, and why?
One point I thought I would mention. At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group. Seriously? I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events. There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing. But far right?
How do we define "far" and "extreme"? By the absolute value of the distance of one's views from the American median, of course. Is the Federalist Society any further from the median than Senator Leahy himself? No.
I will leave the comment thread open for discussion of the hearing generally. Here is a seed question: Who has been the biggest jerk among the Senators so far, and why?
I haven't been watching the hearings, but from having testified up there a time or two, my impression is that Leahy is the most partisan, Feinstein the least law-oriented, and Franken the most aggressive.
As to the Federalist Society's being a "right wing" group: My biggest fights these days are not with liberals, but with libertarians who have a vicious attitude toward police (e.g., Radley Balko), want significantly to scale back incarceration (Right on Crime), support jury nullification, seek widespread drug legalization, and doubt the death penalty (some on religious grounds, some out of diffuse distrust of government). Of course liberals can still be plenty annoying, and troublesome, given their support of a race-huckstering, grievance-mongering, standards-free culture and their ceaseless demands for unthinking "compassion" (at least for criminals -- crime victims can sit in the corner).
Mr. Balko, in my opinion, raises thoughtful points about the CJ system generally and police tactics.
I don't think he deserves the same calumny as the soft-on-crime people who think that violent crime is society's fault.
I do understand that Balko makes very forceful criticisms, but I find that he correctly identifies outrageous examples. We live in a free society, and cops, it seems to me, when it comes to kicking down doors, don't always seem to understand that.
Franken biggest jerk. He needlessly raked Gorsuch over the coals regarding his dissent in the stranded, frozen, trucker employment discharge case. Gorsuch had already been questioned by Whitehouse (I believe) about that dissent. And the point was already made, ad nauseam, that one can view Gorsuch's dissent as lacking any empathy for the trucker who was between a rock and a hardplace. And, if outcome was the sole guidepost for the judge, shouldn't have been fired.
FWIW, my gut tells me that Gorsuch will be a mix of Scalia, Roberts and Kennedy, in that order.
But we all know that predicting how a judge will be as a justice is a very, very, inaccurate guesstimate.
I am, however, interesting in Kent's opinion about Gorsuch's testimony touching on criminal justice issues. He appears to be particularly enamoured with the application of originalism in Crawford, Kyllo and Jones -- all can arguably be classified as pro-defendant.
Doing that right would be a substantial effort, which unfortunately I do not have time for at the moment.
I don't think it was too hard to guess how Sotomayor, Ginsburg or Breyer would turn out.
LOL.
My problem with Balko is that he picks out the worst one-half of one percent of police behavior, bullhorns it, and then passes it off as representative (while occasionally weakly denying that that's what he's doing).
I view this as distorted and unbalanced to the point of being dishonest. You can pick out the worst one-half of one percent of the behavior of ANY profession -- butchers, bakers or candlestick makers -- and then paint that profession as a bunch of cretins.
This is a specific manifestation of a problem I increasingly see with libertarians (with whom I agree on many things): They sit on their haunches and fire one broadside after the next at the people who work to secure the safety from which they handsomely benefit, meanwhile taking no responsibility and doing none of the work.
That's fine if you're ten years old, but it is not fine if you want a seat at the table of serious adults.
Paul, do you know where in the hearing that is? I'm not finding it.
He cited Crawford, Kyllo and Jones as examples of originalism. The later two cases exemplifying how originalism can be applied to modern day technologies that were unknown in 1791.
He cited Kyllo at least two times in response to questions about originalism. Sorry, but I don't remember who posed the questions.
C-Span has the entire hearing. I don't know if a transcript is posted yet.
I will try to find the answer.
Gorsuch cited Kyllo and Jones in response to Klobuchar's implication that originalism is "selective."
He also cited Kyllo, Crawford, Apprendi and Booker (to another Senator?) as opinions with originalist roots that helped defendants.
CNN has an unedited transcript. Cruz and Gorsuch discuss Kyllo and Jones as examples of the flexibility of originalism.
Also, check out Judge Gorsuch and the Fourth Amendment in the linked March 2017 Stanford Law Review article.
https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/
The cited Stanford Law Review also discusses his jurisprudence regarding the 6th Am. and the rights of criminal defendants, as well as qualified immunity.
Go to the Menu and click on SLR Online to see all of the March 2017 articles regarding Gorsuch.
The Congressional Research Service also has a March 8, 2017 analysis of his jurisprudence and potential impact on the Court regarding all constitutional issues.
https://fas.org/sgp/crs/misc/R44778.pdf
Have a link to the transcript? A simple search at CNN doesn't turn it up.
Discussion with Cruz:
https://www.cnn.com/TRANSCRIPTS/1703/21/cnr.08.html
C-Span video clip of discussion of originalism with Cruz:
https://www.c-span.org/video/?c4662540/8-originalism
Additional video clips of Gorsuch discussing other issues with other senators also available on C-Span.
This is a discussion to refute caricatures of originalism as distinguished from real originalism. Original understanding does not always favor the prosecution in criminal cases. New technology requires applying original principles to developments unforeseen at the time of the Founding.
Nothing really new or remarkable here, but the discussion was necessary to refute some myths.
The timing of this is certainly awkward:
https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf
It has been mentioned in the hearings. I'm not familiar with the case or the issue.
I wasn't familiar with the case or the issue before today, either. It just seems a bit unusual, to say the least, that SCOTUS would issue a unanimous opinion (written by the Chief Justice) reversing a circuit court decision right in the middle of confirmation hearings regarding the author of said reversed circuit court opinion.
Author?
http://www.leagle.com/decision/In%20FCO%2020150825070/ENDREW%20F.%20EX%20REL.%20JOSEPH%20F.%20v.%20DOUGLAS%20CNTY.%20SCH.
Sorry, I misread this:
http://time.com/4709234/neil-gorsuch-confirmation-hearing-supreme-court-decision/