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Supreme Court Picks: Bad to Worse

January 26, 2017

“God hates fags” and so does William H. Pryor, Jr.

Trump has hinted that he has already made his choice for the empty Supreme Court seat, and speculation now centers on three names, all straight white males. Conservative PACs are gearing up to promote their favorites, while Democrats can only wonder how bad it will be.

So here are the current front runners, starting with the most odious of all:

Alabamian Judge William H. Pryor, Jr. is a protege of Trump’s nominee for Attorney General, Jeff Sessions, who is said to be promoting his case.  Pryor succeeded Sessions as Alabama’s attorney general after being his deputy. This connection is reason enough to be alarmed at the prospect of either confirmation.

As state attorney general, Pryor supported the right of states to make private consensual homosexual acts a crime,  and has vehemently opposed the Supreme Court’s Lawrence v. Texas decision. He wrote: “The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences.”

Much of his judicial philosophy seems to be based on his religious beliefs, which makes him a favorite of conservative evangelicals; he is a Roman Catholic. His adherence to the doctrine of separation of church and state is shaky at best, and he can be counted on to support religious-based exceptions to federal laws concerning such issues as gay rights, contraception, and health care. And of course, he opposes Roe v. Wade and abortion rights.

The other pillar of his judicial record is belief in states’ rights, the idea that majority opinion in individual states should take precedence over federal law and in essence be able nullify US laws that they don’t like.  This has grave implications for civil rights law and voting rights as well as for many other areas such as health care.

Democrats managed to block his appointment to a US appeals court in 2003, but Bush snuck him in as a recess appointment, and he was subsequently confirmed in a package deal.  For a thorough look at this record prepared at the time, click here.

Incredibly, some conservative groups lobbying on the SCOTUS vacancy think that Pryor has not always been conservative enough, citing his joining a majority opinion on a 2011 case protecting a transgender person against workplace discrimination and more recently for going after Alabama’s chief justice for refusing to obey a federal order to remove a monument of the ten commandments from the courthouse.  Cynics might think that those could have been strategic moves on Pryor’s part to disarm objections to his eventual nomination.

Judge Neil Gorsuch now sits on the Federal Appeals Court in Denver and has a sterling elite school resume (Georgetown Prep, Columbia, Harvard Law, Oxford) as well as serving in the Department of Justice. He is considered a proponent of “originalism” (the idea championed by Scalia that modern decisions should be guided by the original intent of the drafters of the Constitution more than 200 years ago) and of “textualism” (the notion  that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law).  Indeed, he can be legitimately viewed as a Scalia clone.

In 2006, he published a book titled The Future of Assisted Suicide and Euthanasia, which examines arguments for and against and comes to the conclusion that “intentional killing is always wrong.”

Gorsuch is also the son of Anne Gorsuch Burford, who was Reagan’s head of the EPA (known at the time by critics as “Toxic Anne”), where she essentially tried to dismantle the agency, slashing its budget by 22 percent, limiting its investigations, and cutting personnel before being forced to resign.  So he apparently imbibed his conservative principles at his mother’s bosom.

Then there’s Thomas Hardiman of the 3rd Circuit Federal Court of Appeals.  He has less of an elite backstory, but attended Notre Dame and Georgetown Law.  His record holds fewer opinions on hot button issues, but he has a solid conservative reputation including rulings favorable to police and unfavorable to more restrictive gun laws.

The establishment conservative publication National Review thinks Hardiman is now the favorite, both for his life story and credentials, but more importantly because Trump’s sister Marianne Trump Barry is a judge on the same court and is supporting Hardiman. Given Trump’s penchant for seeking guidance within his own family, that’s a hard argument to dispute.

Obviously, the nominee might be none of the above.  Or Trump might send up a name he knows will be super toxic to the Democrats–like Pryor–calculating that they will exhaust their will to fight on him and then acquiesce on someone marginally less offensive to progressive values and causes.

Given the list of potential justices, Democrats could do worse than to refuse to confirm anyone rather than restore the 5-4 conservative majority.  That would be sweet payback for Mitch McConnell’s outrageous refusal to even consider Merrick Garland’s nomination, but whether that strategy would be sustainable for four years is debatable at best.

If not, it looks as if we’ll be stuck with a conservative SCOTUS for another generation. So thanks all you people who didn’t vote for Hillary because you “just didn’t like her.” Happy now?

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