Trump’s Supreme Court nominee opens his testimony with a massive falsehood

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Judges, if you believe Trump Supreme Court nominee Neil Gorsuch, are politically interchangeable parts. “There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said very early in the second day of his confirmation hearing on Tuesday. And he returned to this theme repeatedly in his testimony, denying that he is even permitted to opine on matters of politics — most notably to insist that he could not comment on whether President Obama’s nominee for the vacant Supreme Court seat was treated fairly.

It’s a very pleasant idea, this notion that judges put on a black robe and magically become nonpolitical actors. And, in fairness, it is a falsehood that Democratic and Republican nominees both like to repeat at their confirmation hearings. Gorsuch is hardly the first nominee to make a similar claim.

But his claim that judges are not political is transparently false. If it wasn’t false, Senate Republicans would have simply confirmed Chief Judge Merrick Garland — Obama’s nominee to fill the seat Gorsuch now hopes to fill. After all, why should senators care which president appoints our judges if a Democratic judge is interchangeable with a Republican judge?

Indeed, there’s plenty of data showing that the senators who kept Garland off the Supreme Court were correct in their view that politics matter.

In 2014, for example, the conservative Washington Times examined how judges appointed by Democratic or Republican presidents decided cases seeking to undermine the Affordable Care Act. The data was stark. “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”

More scholarly studies confirm the central role ideology plays in judicial decisions. As scholars Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Sega summarized the dominant view among political scientists in 2011, “political scientists see judges as attempting to maximize their ideological preferences by bringing the law in line with their own political commitments.”

Epstein and her colleagues also conducted their own empirical research into how a judge’s political views impact their conduct on the bench, and determined that “a strong relationship exists between ideology and votes” (on the Supreme Court, their data indicates a “correlation of .79.”)

To be sure, this does not mean that many judges decide individual cases based solely on which side their political party would like to see prevail. Gorsuch, for example, used a case involving a horribly mistreated immigrant as an opportunity to opine on why he would like to transfer power from agencies like the Environmental Protection Agency to the judiciary — a top priority for many conservative legal groups. Judges work with broad doctrines, not with fine scalpels, and a liberal doctrine will sometimes benefit a conservative party, or vice-versa.

But there’s no meaningful support for the idea that judges are immune from politics.

***

This was reposted from Think Progress.

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

Union Matters

The Big Drip

From the USW

From tumbledown bridges to decrepit roads and failing water systems, crumbling infrastructure undermines America’s safety and prosperity. In coming weeks, Union Matters will delve into this neglect and the urgent need for a rebuilding campaign that creates jobs, fuels economic growth and revitalizes communities. 

A rash of water main breaks in West Berkeley, Calif., and neighboring cities last month flooded streets and left at least 300 residents without water. Routine pressure adjustments in response to water demand likely caused more than a dozen pipes, some made of clay and more than 100 years old, to rupture.

West Berkeley’s brittle mains are not unique. Decades of neglect left aging pipes susceptible to breaks in communities across the U.S., wasting two trillion gallons of treated water each year as these systems near collapse.

Comprehensive upgrades to the nation’s crumbling water systems would stanch the flow and ensure all Americans have reliable access to clean water.

Nationwide, water main breaks increased 27 percent between 2012 and 2018, according to a Utah State University study.  

These breaks not only lead to service disruptions  but also flood out roads, topple trees and cause illness when drinking water becomes contaminated with bacteria.

The American Water Works Association estimated it will cost at least $1 trillion over the next 25 years to upgrade and expand water infrastructure.

Some local water utilities raised their rates to pay for system improvements, but that just hurts poor consumers who can’t pay the higher bills.

And while Congress allocates money for loans that utilities can use to fix portions of their deteriorating systems, that’s merely a drop in the bucket—a fraction of what agencies need for lasting improvements.

America can no longer afford a piecemeal approach to a systemic nationwide crisis. A major, sustained federal commitment to fixing aging pipes and treatment plants would create millions of construction-related jobs while ensuring all Americans have safe, affordable drinking water.

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There is Dignity in All Work

There is Dignity in All Work