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On Criminal Justice and Executive Branch Power, Neil Gorsuch May Be More 'Liberal' Than Merrick Garland

Comparing the two SCOTUS nominees.

C-SPANC-SPANSenate Democrats are threatening to mount a filibuster this week against Trump Supreme Court nominee Neil Gorsuch. Why? Among other reasons, the Democrats say they want some payback for last year's Republican stonewalling of Obama Supreme Court pick Merrick Garland, whose SCOTUS nomination languished for months without getting so much as a hearing from the Senate Judiciary Committee. As Democratic Sen. Thomas Carper (Del.) recently told The Washington Post, "I have a very hard time getting over what was done to Merrick Garland. That's a wrong that should be righted."

While the Democrats are busy trying to right that wrong this week they might also take a moment to consider whether Merrick Garland was really all that preferable to Neil Gorsuch on certain issues that Democrats claim to care deeply about. After all, remember that when President Obama first nominated Garland, many liberal activists spoke out in protest and disappointment. And it was no wonder why. As I noted at the time, "while Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power."

I leave it to Senate Democrats to ponder whether or not that is the sort of justice they would like to see on the Supreme Court in the era of President Trump and Attorney General Sessions.

Meanwhile, when it comes to some of those very same issues, Neil Gorsuch may well be more "liberal" than Merrick Garland. Take criminal justice. Garland's record is that of a judge who routinely sides with prosecutors and police. As SCOTUSblog founder Tom Goldstein concluded, "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." By contrast, Gorsuch's record reveals a judge who takes the Fourth Amendment seriously as a constitutional safeguard designed to protect all persons, including unpopular criminal suspects, against abusive law enforcement tactics.

Along similar lines, Garland is well-known for advocating judicial deference to both executive branch agencies and to those agencies' interpretations of the laws and regulations they are supposed to enforce. Gorsuch is famous for taking the opposite view. Indeed, Gorsuch's most well-known opinion came in a case in which the Board of Immigration Appeals overstepped its lawful authority in an effort to deprive an undocumented immigrant of his rights. Gorsuch ruled against that executive branch agency. Garland's record, on the other hand, strongly suggests that he would have deferred to the executive agency under the same circumstances.

Perhaps the Democrats are right to seek political retaliation for the fact that their party's nominee never even got a hearing. But perhaps some Democrats might also be quietly relieved that the same nominee never made it to SCOTUS.

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  • Fist of Etiquette||

    All claims aside, Senate Democrats care not for criminal justice reform. And they very much expect their party to be back in the White House in four years.

  • MarkLastname||

    But what about the TEAM!?

  • AlmightyJB||

    I find it interesting that even knowing that the DNC is going to force the nuclear potion no matter what, that the GOP doesn't do ahead and put forth the most conservative justice they can find? I'm not saying they should but will their base ask that same question?

  • ||

    Well if Gorsuch doesn't get confirmed that is exactly what they will do.

  • Fatty Bolger||

    I never expected Trump to nominate an ultra-conservative, did you?

  • AlmightyJB||

    Nope. But you would think that the GOP would press for one (unless they're all lying about their conservative creds which we know they are). Trump certainly is not beyond punishing the DNC for their actions, and that would be the number one way to do that.

  • Quo Usque Tandem||

    All the more so, that if Trump has any legacy beyond keeping that progressive bitch out of the white house, it will primarily consist of who gets on the USSC. Given their tendency to stay on the bench until death does them part, this could last for decades and span two+ generations. It could well be what the death of Democrat progressivism, at least in our time, looks like.

  • ||

    Once Gorsuch is confirmed, we can safely impeach Trump and not have to worry about whatever other bullshit he might do.
    Pence is an asshole too, but within conventional parameters.

  • ||

    In fact I think we should use this to convince Democrats not to filibuster him. The longer we wait to fill the SCOTUS slot, the longer it will be until Trump is impeached. Get out of the way.

  • CooterBrown||

    I hate Trump as much as the next guy, but what exactly has he done to warrant an impeachment trial? You don't get shit-canned for being a buffoon. Being a buffoon is what got him elected.

  • EscherEnigma||

    If Trump actually nominated "the most conservative justice [he] can find", then that justice probably couldn't be confirmed. If they expect/plan to lose all the Democrats, then they can only lose two of their own (letting Pence be the tie-breaker) and still confirm. A super-conservative, rather then just a reliably conservative? Could lose those two votes.

  • Juice||

    Gorsuch isn't my first pick but he is far far more palatable than Garland.

  • ||

    As Democratic Sen. Thomas Carper (Del.) recently told The Washington Post, "I have a very hard time getting over what was done to Merrick Garland. That's a wrong that should be righted."

    I have no idea how filibustering Gorsuch is supposed to compensate Garland. There isn't any higher bench they can offer him than the one he sit on now, short of SCOTUS, which isn't going to happen.

    I would put money down that whoever Trump nominates next would be way, WAY, worse than Gorsuch.
    He's going to be all "Hey, last time I picked the guy the Republican party chose, and that didn't work, so next time, I'm going to pick a TOTAL ASSHOLE." And it will end up being someone insane who likes to tweet snarky remarks during arguments.

  • ||

    The Garland whining is especially weak considering no one actually believes he would've been confirmed. The "Biden rule" was imagined for this purpose- when there is no realistic way an appointee will get confirmed in the current senatorial arrangement, holding hearings during a presidential campaign is a flawed process.

    The politicization of the SCOTUS nomination process has officially jumped the shark and the nuclear option being used for Gorsuch -who is BY FAR the least offensive to progressives that Trump is going to nominate- is a total mistake on the part of the left.

    The next appointment will make this one look tame.

  • creech||

    True, but then there is no guarantee that Sen. Collins and perhaps a few other moderate GOP senators would vote for the asshole.

  • ||

    I would put money down that whoever Trump nominates next would be way, WAY, worse than Gorsuch.
    He's going to be all "Hey, last time I picked the guy the Republican party chose, and that didn't work, so next time, I'm going to pick a TOTAL ASSHOLE." And it will end up being someone insane who likes to tweet snarky remarks during arguments.

    Is there anything that stops Trump (or predecessors/successors) from doing this all in one go?

    "Here's my list of six people, three assholes, three reasonable candidates, for the position. You guys figure out which 1-3 it's gonna be. If you can't find at least 1, I wish you the best of luck in your respective elections."

  • dantheserene||

    If it was, in fact, a "wrong", how is doing it again a "right"? Other than Team, of course.

  • Zeb||

    Senate Democrats are threatening to mount a filibuster this week against Trump Supreme Court nominee Neil Gorsuch. Why?

    I think you already answered your own question.

  • chemjeff||

    who likes to tweet snarky remarks during arguments.

    And then deliver his judicial opinions via Twitter.

  • ||

    He'll probably appoint Oprah Winfrey to the bench just to prevent her from running against him.

    Or maybe Arnold Schwartzeneggar.

  • Mickey Rat||

    Garland was the Justice tge Dems wanted for the permanent Democrat control of the Executive branch thry were going to have with President Hilary Clinton. They did not want a Justice whi was not deferentusl to executivd authority. Hell, Franken in the Girsuch hearing specfically called Gorsuch iut for being sceptical of regulatiry agencies.

    Tge Democrats are not who you think they are, Mr. Root.

  • SavedByZero||

    Good points. My wife and I are some of the few liberals that we know (there, I said it) who support Gorsuch. We disaree with some of his past rulings, but his libertarian adherence to the constitution shows he'd stand up to Trump if he has to.

  • TheOriginalDaveH||

    The Democrats have no legs to stand on with regards to Merrick Garland not being confirmed by the Senate:
    http://www.americanthinker.com.....ments.html

  • Mockamodo||

    Rights of illegal aliens? To my knowledge the rights conferred by the constitution of these United States regards the rights of American citizens, not citizens of other nations. Foreign nationals have no constitutional rights under our constitution, even if they are on this soil. they do not have the right to bear arms nor any other rights guaranteed American citizens. While they are protected by and subject to our laws, just as American citizens are, they have no rights.

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