Wednesday, August 10, 2022

Earl Ofari Hutchinson: Gorsuch is not Scalia’s Clone, He’s Thomas’

Neil Gorsuch & donald trump

I was wrong, dead wrong, about appellate court and Trump SCOTUS nominee Neil Gorsuch. He’s not his oft-stated adored personal and judicial hero Antonin Scalia’s clone. He’s worse. He’s Clarence Thomas’.

As Paleolithic and retrograde as Scalia’s opinions, rulings and dissents were on everything from gay rights protections to the death penalty to fulsome cheerleading corporate power abuses, there were occasions, rare, but still occasions, when Scalia would break with 19th century strict constructionist orthodoxy, and actually cast a decent vote on a compelling public policy issue.

Some examples are Scalia’s vote to scrap the Arizona minority voter suppression law in a case in 2012. In a case in 2014, he vigorously disagreed that an anonymous traffic stop fell under the on reasonable suspicion rule. He regarded this as a breach of the Constitutional provision against unreasonable search and seizure. Scalia wrote over 100 opinions that could be considered moderate, even liberal, but were anything but ultra-right. In more than half of them, Thomas disagreed with those opinions.

Scalia’s occasional stray from the strict constructionist reservation showed there was a least of modicum of nimbleness underneath his granite ultra-conservative exterior. Nothing doing with Thomas, he has been perfectly content to be the odd man out in more than a few decisions that involved outrageous violations of civil rights and criminal justice protections that even Scalia and the other three conservatives couldn’t stomach.   With Gorsuch on the High Court, Thomas almost certainly won’t be alone when he breaks with the other court conservatives—to the far right. The two tips are first, Gorsuch own words. “”I am blown away by Thomas’ dissent,” The dissent in question was a case involving the government’s use of eminent domain power. Thomas hit the ceiling in roundly condemning it as a violation of the Constitution’s prohibition against property.  This was a touchy case that irked both liberals, libertarians and conservatives. To Gorsuch and Thomas it fit squarely in with their hard read of the Constitution. Or as Gorsuch put it in applauding Thomas, it violated “the plain textual meaning of the property taking clause of the Constitution.”

Thomas and Scalia wrapped themselves in loving embrace in the “originalism” of the Constitution. They saw it as their sworn duty to defend every comma and period of it as the sacred word from on high which could not be violated. But with Thomas it is more. He’s been on a 25-year search and destroy mission to smite down anything that remotely smacks of modern-day, case by case interpretation of its clauses and provisions. Gorsuch plainly likes everything about that.

It’s not just their Siamese twin read of the Constitution vis-à-vis modern day thorny public policy and legal issues, that types Gorsuch as every bit as dangerous as Thomas. He also carefully studied and took a page from the Thomas playbook in his effort to put on a correct face before the public and the Senate. He bobbed, weaved, ducked, dodged, and weaseled around and out of being penned down on any remotely controversial issue that could give Democrats even more ammunition to vote no on his confirmation. The only reason this didn’t completely work for Thomas was the Anita Hill curve ball. There was no Hill to ambush Gorsuch.  His paper-thin voting record on the appellate court didn’t provide much ammunition for Democrats to take pot shots at. However, his rock-solid vet by the Heritage Foundation and his writings are more than enough to give Democrats the weapons they need to say no. There is the revealing passage in which he flatly railed that a judge should not be a “pragmatic social-welfare maximizer” who makes decisions “only with a radically underdetermined choice to make.” Translated, a judge that interprets the law in any manner that remotely smacks of social engineering strays onto dangerous ground.

The ultimate horror on the High Court is not having another judge in the mold of Scalia. But having one in the mold of Thomas. The two would now form a powerful one two punch that would be far more devastating than anything than the Scalia-Thomas combo offered. Thomas would then have absolutely no need to ever utter another word during arguments before the court, as he has institutionalized. He would have the soft-spoken, articulate, and seemingly legally coherent Gorsuch to say exactly what he’s thinking and how he’ll vote on any and every case that comes before the court. Gorsuch unlike the cantankerous, crusty and bellicose Scalia, will be a fresh face and voice on the SCOTUS who will bring an air of respectability to shield his destructive opinions and rulings. Thomas will no longer have to worry about being the lone ranger on the court on issues such as the death penalty or the inalienable rights of corporations over people. Gorsuch is the twin that Thomas has longed for, and now will have.

earl ofari hutchinson
Earl Ofari Hutchinson

Earl Ofari Hutchinson is an author and political analyst. He is the author of In Scalia’s Shadow: The Trump Supreme Court ( Amazon Kindle)He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.

earl ofari - in scalia's shadow

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