How did a criminal defense lawyer end up being a supporter of Judge Neil Gorsuch? He didn’t. Or he isn’t, though it might certainly appear that way to the uninitiated, conflate support with the defense against disingenuous and, well, complete bullshit arguments and accusations against him by those who haven’t got any actual beef with Judge Gorsuch other than the fact that he was nominated by Trump and everybody on the team says he’s awful.
That criminal defense lawyer is me, and if I was the guy nominating someone to sit on the Supreme Court, Judge Neil Gorsuch wouldn’t be on my long list, no less be my pick. But that’s not the point. Fighting the insanely insipid attacks on Gorsuch isn’t a matter of being a huge Gorsuch supporter. It’s a matter of intellectual honesty. And that otherwise smart people, friends, people I might otherwise find credible, are all too happy to indulge in lies and misinformation against their enemy forces my hand.
Both publicly and privately, people I admire and respect have assured me that Gorsuch is a fine human being and a conscientious judge. The most public example of this was the appearance by former acting solicitor general Neal Katyal, a former Obama official now leading the fight against the Trump travel ban, to assure the committee that he is “a first-rate intellect and a fair and decent man.” Also in evidence was a phalanx of former clerks willing to tell anyone who would listen of their judge’s wisdom and kindness. I stipulate—as I did from the outset—that Gorsuch is just a terrific guy.
I’ve heard this as well. People whom I know and trust, who actually know Judge Gorsuch, tell me he’s a good guy, no idealogue, no alt-right bagman, no hater. His views may not be my cup of joe, but as judges go, he’s okay. And we could do far worse, and well may should Trump get another pick. So granted, I can’t quite lose my shit over Gorsuch to the extent that any weapon, any lie, must be used to nuke his nomination or the world will end. But…
The Neil Gorsuch on display in front of the committee, however, was not as appealing as the picture painted of him by his friends. In his answers to senators, Gorsuch seemed like a man whom one would dread sitting next to on a long airplane trip. The charm he displayed was oddly repellent; his vaunted humility was relentlessly overbearing; and his open-mindedness was rigidly dogmatic. He seemed to have trouble concealing contempt for the process, his questioners, and the public itself.
Gorsuch was by turns condescending, evasive, and even dishonest. In fact, it’s not too much to say that he, in his aw-shucks gentlemanly way, gaslighted the committee in a genteel but nonetheless Trumpian style.
This could be chalked up to the confirmation hearing being a dog and pony show, the senators speechifying in the most partisan hearing since Bork, even though Gorsuch is no Bork, and a nominee trying to thread the partisan needle. For lawprof Garret Epps, it gave rise to some unseemly feelz.
It’s fair to say that no Supreme Court seat since Franklin Roosevelt’s nomination of Hugo Black has arrived smelling so strongly of party politics as has Gorsuch’s. And that nomination was born of the judiciary’s last near-death experience.
It smelled? You bet. But for Epps, the odor emitted only from the nominee, not the senators, not the hearing as a whole, not the atmosphere of politics in America. And that, for Epps, was good enough to shed any intellectual honesty in vaguely attacking Gorsuch for being too political. But this isn’t about Garrett Epps and his shameless use of vague adjectives. He’s just the flavor of the day to forsake integrity to win the admiration of the team.
You’re furious about the Senate Republicans’ treatment of Garland. Me too. It was outrageous and complete bullshit, even though I don’t care for Garland any more than Gorsuch. And yet, that’s still not the point. Just because they’re not the judges I would want doesn’t mean they aren’t fully qualified to sit on the Supreme Court. I’m not president, so I don’t get to pick my fav. You’re not either.
But if we are all blinded by lies, by frivolous, irrational, fallacious arguments that confirm our bias or support our outcomes, then there is no way to dig ourselves out of this rut of feelings, anger and deceit. And while much of America is buying into the bullshit, they do so because they have the media and Academy telling them they’re right, it’s true, their inane arguments aren’t completely batshit crazy and the gibberish rationalizations that barely make sense to the public are, well, absolutely right because . . . we hate Trump.
Take a stand. There will be no return to credibility, integrity, intellectual honesty, once you’ve sold your soul to the Hallelujah Choir. Stop lying to win the battle. Stop making me be the guy who has to call out your lies on behalf of a judge I could live without. We’ll survive Gorsuch. We won’t survive a nation of liars for the cause.
Just because you call yourself a scholar does not mean you get to lie for a good cause. Once you do, you’re now just a liar, like any other, who has sold his integrity for a cheap thrill.
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Epps says, “It’s fair to say that no Supreme Court seat since Franklin Roosevelt’s nomination of Hugo Black has arrived smelling so strongly of party politics as has Gorsuch’s.” Doesn’t that suggest that Epps should work twice as hard not to give in to “party politics” and to try to see through the smoke and mirrors used by both sides? To ignore what happened to Garland and assess Gorsuch on the merits?
Apparently not, as Epps gives away the game in the last paragraph: “What Merrick Garland nomination? What dark money? What Senate blockade? What campaign rhetoric?” What “smells” to Epps is not Gorsuch; it’s how Garland was handled. Epps has nothing constructive to offer in the present because he has allowed himself to be blinded by the (recent) past.
Is he blinded or is he trying to do the blinding? One is pathetic. The other deliberately deceitful.
Judicial conformation hearings would be so much more satisfying if the nominee were forced to preform sand art without looking down throughout the hearing while ever so slowly being cloaked in a reverse statue unveiling ritual, but only if the sand art progress was broadcast on the jumbotron at the back of the room, and after they were fully cloaked the chairman put a turquoise head band around their forehead while the ranking member burned sage to ward off the evil spirts.
Then everybody went to kegger on the south lawn of the Whitehouse or something.
Way to go, Barleycorn. Nothin’ holdin you back!
Kept it short this time. Are you ill, or running out of inspirational steam?
Just sayin’? “Preform”, yea, we caught that!
I don’t know enough about Epps even to attempt that judgment. A quick Amazon search pulls up his “American Justice 2014: Nine Clashing Visions on the Supreme Court”. I haven’t read it, but I would think someone who has taken the time to develop an opinion of each member of the Court might have spent his words comparing Gorsuch to Scalia, rather than blaming Gorsuch for Garland.
Ironically, Epps quotes Learned Hand on the inside cover of the book: “This much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” Three years plus one election later, burn it all down?
Pre-Trump, Garrett Epps provided some very thoughtful stuff. Since, he demonstrates the typical TDS symptoms as do so many “woke” academics. I find it difficult to understand how a smart guy like Epps can forsake intellectual honesty so easily.
From the perspective of a non-CDL, Innocence Project donating, quasi-libertarian who doesn’t like Trump but is tired of the TDS epidemic, Gorsuch seems about as good as I’m going to get out of this system. The fact that so many nominally “reasonable” people like Epps have decided to piss their credibility away on stuff like this just furthers that impression.
An eminently reasonable position.
The senators should appoint practicing appellate lawyers from plaintiff firms, defense firms, federal prosecutors, and CDLs to ask questions of conflict of laws (i.e. 11th Cir says X, 7th says Y, if it comes to SCOTUS which lower court’s ruling do you agree with). Otherwise we have non-lawyers or former lawyer senators giving policy speeches and then following up with “do you agree” or “how would you rule?”
The problem is that the current way forces the nominee to defer to precedence. “Well senator, Johnson v USA is the current legal precedent.” That forces the moral followup of “do you agree with that precedent (e.g. Korematsu, Plessy, Marbury v Madison) or would you rule against it” which then could cause recusal on all those issues that come before the court if the nominee is selected.
I think the initial suggestion of legal practitioners asking questions in specific terms of past cases may cure that. I’m not smart enough but maybe something along the lines of “in a case like Katz, what factors would you consider for expectation of privacy in order of importance” or “for miranda to apply can you give example of what are bright lines for custodial assumptions besides being in handcuffs?”
The current system is just partisan grandstanding and we nothing of the nominee beyond his own written opinions.
I’ve written other posts on Gorsuch and the confirmation hearings where this comment might have been tangentially relevant. But not here.
Why do you seem more like a judge than a lawyer? Sorry, tangents, arcs, and vectors.
I have the distinct sense that we know very different lawyers.
Scott,
From this point forward, no judge–from either side of the jurisprudential spectrum–who respects himself or herself should accept a nomination to the Supreme Court. I truly mean it.
Ironically, Epps makes that point clear. He writes: “The charm [Gorsuch] displayed was oddly repellent . . . .”
Bork, for all his many faults, displayed no “charm” (repellant or otherwise). But he kept his dignity by (1) refusing to be handled by handlers; and (2) essentially telling the Judiciary Committee to go fuck themselves when the midgets asked their multitude of insipid questions.
Epp wants charming charm. Not that oddly repellent kind. And that says it all.
All the best.
Rich Kopf
That bizarre line by Epps would have been incomprehensible at any other time. Yet, he obviously believed it would play. Who needs that crap?
SHG,
Speaking of crap, that reminds me of the saying I once told you about that my former law partner (and best person in the world) once uttered. You can’t shine shit.
All the best.
RGK
And we’ve got plenty of it.
Dear Judge:
If you find somebody who proves your old partner wrong, you can always give them this:
Best regards,
Pat
Pat, there is an old lawyer who retired in Texas (only the Gods know why) who will be buoyed by your wonderful photo. Thank you.
All the best.
RGK