[EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

Thu Mar 23 16:06:28 PDT 2017

There is no reason to think Gorsuch would be bad on voting rights issues.  And Gorsuch and Scalia are not ideological twins.

Scalia had one underlying principle in cases involving minor parties and independent candidates.  He didn't like them and would never help them.  This was a bedrock attitude of Scalia, even more important to him than originalism or his belief in freedom of association for political parties.
Scalia believed in freedom of association for major parties.  He made that very clear, not only in California Democratic Party v Jones (which he wrote in 2000), but in his dissent in Washington State Grange v Washington State Republican Party (2008).  He and Kennedy were the only ones who believed that top-two obviously violated freedom of association for the Democratic and Republican Parties (who were both in the case), and that the case didn't need any evidence.
But in 2005, when the Oklahoma Libertarian Party was in the US Supreme Court in Clingman v Beaver, and the issue was whether the Libertarians had a right to insist on an open primary for themselves (in other words, to invite all voters to vote in the Libertarian primary), Scalia voted against freedom of association. Worse, at the oral argument, he was openly contemptuous toward the Libertarian Party's attorney.  Scalia mocked him and made derogatory remarks about the party's desire to let non-members vote in its primary.  The Libertarian Party lost the case and Scalia joined the majority opinion, which was written by Clarence Thomas.

Scalia had joined the court in the early 1980's, and never, ever, cast a favorable vote for minor parties or independents.  In Norman v Reed, the last ballot access victory for minor parties from the US Supreme Court, in 1992, Scalia was the only dissenter, and his dissent was nonsensical.
Gorsuch, on the other hand, has only had one case involving minor parties and independents, and he was favorable.  So, even though this is just one narrow issue, it is wrong for people to say Scalia and Gorsuch are think-alikes.
 Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

      From: David A. Holtzman <David at HoltzmanLaw.com>
 To: Election Law Listserv <law-election at uci.edu> 
 Sent: Thursday, March 23, 2017 3:53 PM
 Subject: Re: [EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

   Wouldn’t it be fair to filibuster Gorsuch for 10 months, to retaliate for Congress’ refusal to consider President Obama’s nominee during 10 months of Obama's presidency?   <!--#yiv9700099755 _filtered #yiv9700099755 {font-family:"Cambria Math";panose-1:2 4 5 3 5 4 6 3 2 4;} _filtered #yiv9700099755 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;}#yiv9700099755 #yiv9700099755 p.yiv9700099755MsoNormal, #yiv9700099755 li.yiv9700099755MsoNormal, #yiv9700099755 div.yiv9700099755MsoNormal {margin:0in;margin-bottom:.0001pt;line-height:107%;font-size:11.0pt;font-family:"Calibri", sans-serif;}#yiv9700099755 .yiv9700099755MsoChpDefault {font-family:"Calibri", sans-serif;}#yiv9700099755 .yiv9700099755MsoPapDefault {line-height:107%;} _filtered #yiv9700099755 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv9700099755 div.yiv9700099755WordSection1 {}-->

 On 3/22/2017 9:36 PM, Rick Hasen wrote:

J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him Posted on March 22, 2017 9:26 pm by Rick Hasen I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else. I’m even more convinced watching the hearings that Judge  Gorsuch fancies himself an originalist and textualist in the mold of Justice Scalia. This means he is likely to be more conservative than Chief Justice Roberts, and could be as conservative if not more conservative than Justices Alito and Thomas. (I wrote about where he is likely to stand on campaign finance and voting rights in this CNN piece and this blog post. I also think we need a bit more clarification on his views. based on misstatements at the hearing.) So should Democrats try to filibuster him? Right now it takes 60 votes to bring Gorsuch’s nomination to the floor. If Democrats hang together, they could filibuster him. That would likely cause Senator McConnell to trigger the nuclear option for Supreme Court appointees (just like Senator Reid, for the Democrats, went nuclear a few years ago for all appointees aside from the Supreme Court). He may have some reluctant Republicans to do that, but my bet is he’d get it through. So why shouldn’t Democrats do it now, to get attention and to protest the shameful failure of Republicans to consider Judge Merrick Garland for the Supreme Court when nominated by President Obama? I’ve struggled with it but now think it better not to filibuster. Democrats hold a pair of twos.  They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination  restores the balance of power on the Court to the position it was in before Justice Scalia’s death. Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse. Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what  they lost when they lost the 2016 election and how bad things will be. Another thing. Lots of Trump state Democratic Senators are coming up for reelection in 2018. Democrats need to hold those seats. Democrats and their allies have not done a good enough job painting Judge Gorsuch as a danger to the rights and issues people care about in those states. They would be put to tough votes if they are put in the position to filibuster. They may not do it, and if they do it could make the more vulnerable in 2018. So while I’ve vacillated, I now don’t think Democrats should trigger the filibuster now. The future is uncertain. It won’t buy much now. It might buy more in the future. Maybe in the future Democrats will have better than a pair of twos.  Posted in Supreme Court

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 David A. Holtzman, M.P.H., J.D.
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