Talk:Nominees Supreme Court

Thomas Hardiman

He "lacks a powerful sponsor"? Not exactly. According to Quin Hillyer, "Trump’s sister, Judge Maryanne Trump Barry, serves on the same circuit court as Hardiman and reportedly has recommended him quite highly to her brother. Personal connections matter a great deal to Trump."Andrew (talk) 22:15, 25 January 2017 (EST)

A recommendation is different from having a "strong sponsor." Strong sponsors are people like the new Attorney General, members of the Judiciary Committee, Mike Pence, or top advisers to Trump. It seems unlikely his sister is actively lobbying him to picked Hardiman.--Andy Schlafly (talk) 22:21, 26 January 2017 (EST)

See Goldmacher, Shane. "Trump's sister weighs in on Supreme Court pick: The president's older sibling serves on a federal appeals court with Judge Thomas Hardiman, one of the two leading contenders to fill the vacant Supreme Court seat," Politico (January 25, 2017).Andrew (talk) 23:59, 26 January 2017 (EST)

Neil Gorsuch

• He "is an extreme supporter of stare decisis"? Actually, in the very case cited, United States v. Games-Perez, he urged the en banc court to overturn the precedent in question.Andrew (talk) 22:26, 25 January 2017 (EST)

He later joined other judges in unsuccessfully voting for a rehearing en banc. He did not dissent from the denial. In other statements Gorsuch has described adherence to stare decisis as being nearly a constitutional requirement, in his view. That's how the mistake of Roe v. Wade is perpetuated. It's a tenet of liberal judicial supremacy for judges to refuse to correct judicial mistakes.--Andy Schlafly (talk) 22:21, 26 January 2017 (EST)

The link I gave above says, "GORSUCH, J., joined by HOLMES, J., dissenting from the denial of rehearing en banc...." Followed by a dissenting opinion.Andrew (talk) 23:52, 26 January 2017 (EST)

Gorsuch did not dissent from the initial panel decision, and did not dissent from the denial of the petition for rehearing based on the Second Amendment. Gorsuch's style of reasoning is not particularly conservative and Tymkovich did not even join the Gorsuch opinion on the petition for rehearing that you cite, even though the conservative Tymkovich did dissent from the denial of the petition.--Andy Schlafly (talk) 00:19, 27 January 2017 (EST)

Tymkovich did not dissent from the denial of the petition for rehearing based on the Second Amendment, as far as I can tell. But Gorsuch did: "the presumption that the government must prove mens rea here applies with full force. See Staples, 511 U.S. at 613-14; District of Columbia v. Heller, 554 U.S. 570, 595 (2008)." Gorsuch also addressed the Second Amendment at greater length earlier in the case.Andrew (talk) 05:06, 27 January 2017 (EST)

• He "sided with civil rights for 'gender identity' in 2009"? In that very case, he completely rejected the lawsuit brought by a transgender person. He did mention a prior case that had said "transgender individuals may state viable sex discrimination claims...." but there was no point in challenging that precedent (or endorsing it) since the plaintiff lost regardless of the precedent's validity.Andrew (talk) 23:11, 25 January 2017 (EST)

"Completely rejected"? Absolutely not. Instead Gorsuch supported sweeping, special federal rights for transgenders. It's common operating procedure for liberals to push their agenda with expansive wording in cases that initially deny relief, and Gorsuch fully supported that for transgenders.--Andy Schlafly (talk) 00:08, 27 January 2017 (EST)

Yes, that is a common operating procedure for many judges, but here relief had already been granted in the prior case (Schwenk), and Gorsuch (by merely acknowledging Schwenk) made no attempt to endorse or broaden the holding of that prior case.Andrew (talk) 05:22, 27 January 2017 (EST)

• He "belongs to the Episcopalian church that has publicly declared its 'unequivocal opposition' to pro-life laws." Correct, but that church has not banned members for opposing Roe v. Wade. See, for example, an interview in which Tucker Carlson says that he opposes that church's position on abortion but attends nevertheless.Andrew (talk) 00:48, 26 January 2017 (EST)

The difference, obviously, is that Tucker Carlson has expressed his disagreement. Gorsuch has not, which implies consent. Also, the particular church that Gorsuch is an usher in is stridently pro-choice and very liberal on other social issues.--Andy Schlafly (talk) 22:24, 26 January 2017 (EST)

I don't know whether Gorsuch has (or has not) privately disavowed some or all positions taken by his church hierarchy, or for that matter taken by his judicial hierarchy, and I have doubts about whether such disavowals should be required even in private. In the first case, you have a prohibition on religious tests, and in the second case a nominee has the custom of not discussing cases that might come before him. It's an awkward situation.Andrew (talk) 05:30, 27 January 2017 (EST)

• In Pino v. United States, is it true that "Rather than render a pro-life ruling, Gorsuch punted this issue to the Oklahoma Supreme Court for it to decide"? Actually, no. Gorsuch joined with the renowned scholar and judge Michael W. McConnell in contacting the Oklahoma Supreme Court, at the request of the mother who lost her child. And once the Oklahoma Supreme Court replied, Gorsuch promptly reversed the district court's summary judgment in favor of the hospital.Andrew (talk) 01:38, 26 January 2017 (EST)

Your Federalist Society-style praise of Michael McConnell is misplaced - he quit the U.S. Court of Appeals after being passed over for the Supreme Court, showing his lack of commitment. As to the decision, Gorsuch did punt the issue to the Oklahoma Supreme Court, and used pro-abortion rhetoric in doing so.--Andy Schlafly (talk) 22:30, 26 January 2017 (EST)

For the record, I am not (nor have ever been) a member of the Federalist Society, the Heritage Foundation, or any other organization involved in picking judicial nominees (except that I used to blog at a site owned by Redstate).Andrew (talk) 00:20, 27 January 2017 (EST)

I appreciate that disclosure, but the real issue in this debate is whether someone is a "Law Without Values" advocate as the Federalist Society types implicitly are, or whether someone supports Trump's pro-life pledge. I'm the latter, while many right-of-center legal minds are misled to think that conservative rulings result from abandoning pro-life values from the bench. They don't.--Andy Schlafly (talk) 00:26, 27 January 2017 (EST)

I don't think it's fair for you to imply that federal courts are "punting" whenever they certify questions of state law to state supreme courts. Federal courts are supposed to have limited power, rather than doing whatever they want. If the U.S. Supreme Court would "punt" the issue of abortion to the American people instead of deciding it themselves, that would be a big step in the right direction.Andrew (talk) 05:06, 27 January 2017 (EST)

Requests for certifications of law are disfavored, and rare. They amount to advisory opinions and are procedurally inefficient. In this case, the Oklahoma Supreme Court was unanimous, which confirms how needless the request for certification was. Its primary purpose appears to have been for Gorsuch to punt on the issue of abortion, which no pro-life judge would do.--Andy Schlafly (talk) 23:09, 27 January 2017 (EST)

William Pryor

• "[H]e is very committed to stare decisis, which makes it less likely he would overturn Roe v. Wade"? It depends what you mean by "less likely." Sure, his devotion to precedent makes it less likely that he would overturn Roe than if he couldn't care less about precedent. But among Trump's 21 SCOTUS candidates, he seems as likely as any of them to overturn Roe. After all, he has said that Roe v. Wade is the "worst abomination in the history of constitutional law." Pryor co-authored a recent book which says: "The doctrine of stare decisis [i.e. precedent] applies less rigidly in constitutional cases than it does in statutory cases because the correction of erroneous constitutional decisions by the legislature is well-nigh impossible. Yet stare decisis does play a significant role in constitutional adjudication."Andrew (talk) 16:58, 26 January 2017 (EST)

Thomas Lee

He's my favorite. As you say, "he could become a consensus pick; his writings emphasize originalism and are considered most like Justice Scalia's." I agree.Andrew (talk) 23:48, 26 January 2017 (EST)

The word from Utah is that Thomas Lee is not as conservative as his brother Mike. Also, Thomas Lee has apparently not written on social issues, so it is really difficult to say that he would fulfill Trump's pro-life pledge.

The problem with Federalist Society types is that they oppose Trump's pro-life pledge.--Andy Schlafly (talk) 00:23, 27 January 2017 (EST)

Whether he's pro-life or not, I think he's the one most likely to reduce the power of SCOTUS to its intended scope, which was never meant to include deciding social policy for hundreds of millions of helpless peons, and divining the content of natural law in a way that we peons disagree with.Andrew (talk) 00:39, 27 January 2017 (EST)

Maybe, but apparently his approach remains untested by controversial issues like abortion, so it is difficult to be sure. It's a bit like heaping praise on an athlete who has never played in a big game.--Andy Schlafly (talk) 22:42, 27 January 2017 (EST)

A general observation

Ideally, of course, a judge's personal political opinions should have nothing to do with his jurisprudence. Indeed, the people on Trump's list of 21 would perhaps (for the most part) strive mightily to keep their personal political opinions out of any SCOTUS opinions that they might someday write. But the sad fact is that SCOTUS long ago arrogated unto itself the power to decide what rights are "fundamental" and therefore outside the democratic process, and this virtually limitless power of SCOTUS all but guarantees that personal political opinions will enter into its opinions. I strongly believe that SCOTUS has badly misinterpreted both the Due Process Clause as well as the Equal Protection Clause in a way that concentrates power in themselves, and the original meaning of neither clause really authorizes them to unilaterally protect what they deem (rightly or wrongly) to be unenumerated fundamental rights. I've said so publicly, in law review articles. Until that judicial mess is straightened out, I sadly concur that the personal political positions of nominees may be fair game, at least if they have been publicly stated.Andrew (talk) 00:32, 27 January 2017 (EST)

But the issue of "pro-life" is not merely a personal political opinion. It is a statement of fundamental values similar to the "presumption of innocence" for criminal defendants.

If you are espousing a judicial philosophy of "law without values," then I disagree with it and suggest that it is even impossible.--Andy Schlafly (talk) 22:40, 27 January 2017 (EST)

I am suggesting that judges have no legitimate power to overturn the values of lawmakers merely because the judges have different values. Anyway, thanks for the discussion. I guess we'll find out soon who the nominee is. Cheers.Andrew (talk) 02:42, 30 January 2017 (EST)