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Tag Archives: Neil Gorsuch
While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority. Current case law is mostly bounded in the reality of current politics. Some conservatives want courts to disrupt the way things currently operate.
Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity. Congress then delegates responsibility for filling in the details to some department or agency. To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives). Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs. The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.
Current case law supports the ability to operate in this way through three doctrines. First is the current limited version of the non-delegation doctrine. Back before the New Deal, the courts regularly struck down regulations on the theory that Congress had improperly delegated legislative authority to the executive branch. Current law permits such delegation as long as the statute gives sufficient guidance to the administrative agency. While sufficient is somewhat in the eye of the beholder, most courts only require very broad guidance.
On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia. This nomination creates a significant question for Senate Democrats on how to proceed.
On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment: The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W. While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia. It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia. In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision. As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died. (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.) And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths. Given this reality, the question is how hard to fight this nomination.
The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle. In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan. However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016. At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes). However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes.