# Gorsuch confirmation hearing **URL:** \ **Category:** Great Debates\ **Created:** [March 20, 2017, 10:05pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653 "2017-03-20T22:05:35Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2017, 2:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/201 "2017-03-23T14:47:02Z")
> [@k9bfriender](#): > > You are not very familiar with the constitution if you believe it can be changed by fiat. > > I would use a constitutional convention. As I said in the earlier post, the founders did not foresee everything, and in fact, they did not foresee quite a few things. But they did foresee that there would be situations they could not foresee, so they left provisions in it to make changes to update, or even completely overhaul it. Absolutely! No complaint from me if you amend it, or even overhaul it via convention. I object to your changing it by philosopher king-style judging. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 23, 2017, 2:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/202 "2017-03-23T14:47:15Z")
> [@Budget\_Player\_Cadet](#): > > I’m increasingly of the opinion that the senate should force the issue, and here’s why: if the first time it matters, the filibuster is done away with, then the filibuster may as well not exist in the first place. If the first time the democrats buckle down and say, “Nope, that’s not okay, you need 60 votes to get that through”, the republicans respond by saying, “Okay, we’re killing the filibuster”, then the filibuster is, for all intents and purposes, already dead. It exists in name only. Or, worse, it exists in exactly one way: as a cudgel for those who reject norms to beat those who respect norms with. And that’s not okay. Not so. It seems pretty much accepted that Gorsuch is about as well qualified and mainstream conservative as you can get. If Gorsuch is filibustered, that means that the Democrats are going to filibuster any and all conservative justices, no matter how qualified or how mainstream. Faced with the choice of putting up with _that_ or doing away with the filibuster there’s little doubt that the Republicans will do away with the filibuster. But suppose the Democrats say they’ll refrain from filibustering Gorsuch or people of comparable qualifications or legal views, but will filibuster anyone with much lower qualifications or proponents of fringe legal theories. It’s very possible that _that_ is a price the Republicans will be willing to pay in order to preserve the filibuster, and the Democrats get to preserve a weapon for when they might need it even more. But if the Democrats filibuster Gorsuch, and the Republicans do away with the filibuster, then from here on out anyone who can get 50 Republican votes is in like Flynn and the Democrats have no say at all. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2017, 2:48pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/203 "2017-03-23T14:48:17Z")
> [@skdo23](#): > > Don’t let the door hit your ass Neil. > > [https://www.washingtonpost.com/powerpost/gorsuch-confirmation-hearing-to-focus-today-on-testimony-from-friends-foes/2017/03/23/14d21116-0fc7-11e7-9d5a-a83e627dc120\_story.html?utm\_term=.ed251665e4f7](https://www.washingtonpost.com/powerpost/gorsuch-confirmation-hearing-to-focus-today-on-testimony-from-friends-foes/2017/03/23/14d21116-0fc7-11e7-9d5a-a83e627dc120_story.html?utm_term=.ed251665e4f7) What does that mean? Are you saying you predict Gorsuch will not be confirmed? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 23, 2017, 3:03pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/204 "2017-03-23T15:03:09Z")
> [@Bricker](#): > > But I’m certain that if Trump appoints a couple more Supreme Court justices, and the Court then finds that not only is Roe v. Wade overturned but that no state can constitutionally even permit abortion (after all, no person can be denied life, liberty, or property without due process of law, and that now includes unborn persons) you’ll be much less sanguine about vesting such powers in judges. I think our point is that the judges already have that power, even if some of them pretend/think they don’t. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 23, 2017, 3:05pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/205 "2017-03-23T15:05:02Z")
> [@Fotheringay-Phipps](#): > > But suppose the Democrats say they’ll refrain from filibustering Gorsuch or people of comparable qualifications or legal views, but will filibuster anyone with much lower qualifications or proponents of fringe legal theories. It’s very possible that _that_ is a price the Republicans will be willing to pay in order to preserve the filibuster, and the Democrats get to preserve a weapon for when they might need it even more. > > But if the Democrats filibuster Gorsuch, and the Republicans do away with the filibuster, then from here on out anyone who can get 50 Republican votes is in like Flynn and the Democrats have no say at all. If I thought that the Democrats could have any trust in such behavior in the Republican Senators, then I might be supportive of such a plan, but I don’t. I believe the chance is near-zero that Republican leadership can be trusted in such a way. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 23, 2017, 3:26pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/206 "2017-03-23T15:26:40Z")
We’ve had this discussion before, and I’ll repeat now what I said then. I’m not talking about trust, and this doesn’t involve any sort of deal with Republican leadership. It’s about an assessment that there are 3 Republican senators who would prefer to sacrifice a hard-line out-of-the-mainstream choice in order to preserve the filibuster, then the strategy works on its own, without any involvement of Republican leadership, so no deals or trust issues are involved. If you think there aren’t 3 such Republicans, then it’s unlikely the Republican leadership would agree to any such deal to begin with. But in any event, it’s about an assessment of Republican sentiment, not involving any sort of trust in anyone. Personally I think the sentiment is there. YMMV. But in any event, the argument BPC was making - _“if the first time it matters, the filibuster is done away with, then the filibuster may as well not exist in the first place”_ - is incorrect for this reason. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 23, 2017, 3:34pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/207 "2017-03-23T15:34:25Z")
> [@Fotheringay-Phipps](#): > > We’ve had this discussion before, and I’ll repeat now what I said then. > > I’m not talking about trust, and this doesn’t involve any sort of deal with Republican leadership. > > It’s about an assessment that there are 3 Republican senators who would prefer to sacrifice a hard-line out-of-the-mainstream choice in order to preserve the filibuster, then the strategy works on its own, without any involvement of Republican leadership, so no deals or trust issues are involved. > > If you think there aren’t 3 such Republicans, then it’s unlikely the Republican leadership would agree to any such deal to begin with. But in any event, it’s about an assessment of Republican sentiment, not involving any sort of trust in anyone. > > Personally I think the sentiment is there. YMMV. But in any event, the argument BPC was making - _“if the first time it matters, the filibuster is done away with, then the filibuster may as well not exist in the first place”_ - is incorrect for this reason. Okay, I disagree. But I do think leadership is involved, since Senators are less likely to act in a way that their leadership disapproves of. In any case, we disagree substantively on the cost/benefit analysis of this decision. We’ll see what happens. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 23, 2017, 4:00pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/208 "2017-03-23T16:00:09Z")
Senator independence may come into play on the other side here. Schumer has already announced a filibuster. The Republicans need to peel away 8 Democratic senators to break it. Question is whether the Democratic leadership will lean on their moderate/independent members. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 23, 2017, 4:04pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/209 "2017-03-23T16:04:46Z")
> [@Fotheringay-Phipps](#): > > Senator independence may come into play on the other side here. Schumer has already announced a filibuster. The Republicans need to peel away 8 Democratic senators to break it. Question is whether the Democratic leadership will lean on their moderate/independent members. I am sure there will be a few. Manchin et al. Not sure about 8. But Gorsuch’s confirmation is 100% guaranteed, filibuster or not. There is no way that Republicans will allow Democrats to block him. I will take any bet of any size on that. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2017, 4:14pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/210 "2017-03-23T16:14:19Z")
> [@iiandyiiii](#): > > I think our point is that the judges already have that power, even if some of them pretend/think they don’t. The judges I want are the judges who believe it’s not the role of judges to use that power. I don’t want judges who are willing to use that power to create “right” results when the law doesn’t help the “right.” ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [March 23, 2017, 4:16pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/211 "2017-03-23T16:16:40Z")
> [@D\_Anconia](#): > > Are you OK with changing the Constitution by judicial fiat? > > Or only in cases where your preferred outcome is the result? I don’t know that I have seen the constitution changed by judicial fiat. Can you point to a time when a judge has either added or retracted from the words in the constitution? I am coming up empty here. If you are talking about interpretations, then yes, I do consider judges to be those who are specifically charged with interpreting how the constitution interacts with the law, and how that interacts with the people being governed. This may occasionally mean changing how we interpret a specific part of the constitution, whether it is because we were never interpreting it the way the founders intended, and only now are, or because different parts of the constitution conflict with other parts, and a judge needs to decide which part of the constitution to hold supreme. I have absolutely no problem with judges doing their jobs in this fashion, and while I certainly prefer when judges rule in ways that I prefer, I respect when they don’t. This does not mean that I accept the decision and will not work to change it either through better legal argument, change in the law, or ultimately change in the text of the constitution. Before you make your favorite accusation again, you should know that I am not advocating any of these actions through fiat, but through the very systems that are set up by the constitution. By encouraging better laws to be passed amongst my legislatures, by encouraging better legislatures to be elected amongst my fellow voters, by encouraging laws of interpretations of the constitution that I feel are unjust or harmful to society to be challenged in the courts by the ACLU or other such legal organizations. > [@Okrahoma](#): > > Why not? The first amendment does not specify the means by which the speech is disseminated or restrict it based on such means. Of course the first amendment does not restrict speech, it only allows it. But it only allows speech, press, assembly, religion and petition. It says nothing about digital communications. A reasonable interpretation of the first extends to digital communications, but this is an interpretation, and I have seen arguments (not that I agree with them) against that interpretation. [quote=First Amendment] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [quote] > [@Bricker](#): > > No argument from me. > > The argument comes from me when you try to alter or discard the pieces you find to be causing suffering or misfortune without following the rules that were accepted when everyone joined the club in the first place. > > When women were denied the right to vote, the solution was not to convince a set of unelected judges with lifetime appointments that this was a source of suffering or misfortune. It was,of course, but that’s not their role. It’s the job of legislators to fix, and, indeed, two thirds of Congress and three-fourths of the state legislatures passed the Nineteenth Amendment. Did women get the right to vote when the amendment passed, or had they been fighting (and winning) the right to vote state by state first? Do you think that it would have passed if they couldn’t already vote in 20 states and a territory? I thought that there were a number of court cases involved in that too, but in my brief skimming over the history of women’s suffrage, I am not seeing them, so I am relying on nearly 30 year old memories of civics class for that cite. Progress gets made incrementally, and it’s only when progress reaches a certain point that it becomes viable to make an amendment. > [@](#): > > Today, you seek other modifications, but you say, “It’s too hard to modify the Constitution, so I’ll get the judges on my side.” The point is that making law like that is not of the people, by the people, and for the people – it’s taking power from their hands and vesting it in judges; it’s creating a class of philosopher kings, super-legislators to whom you can appeal when the electorate is too unenlightened to suit your tastes. It is putting power in the hands of justices, who are called for in the very constitution that they are to interpret. The constitution itself makes the argument as to why they are not elected. So, if we made an amendment that made the SC’s elected, would that make you more sanguine about their ability to interpret how the law and the constitution interact? > [@](#): > > But I’m certain that if Trump appoints a couple more Supreme Court justices, and the Court then finds that not only is Roe v. Wade overturned but that no state can constitutionally even permit abortion (after all, no person can be denied life, liberty, or property without due process of law, and that now includes unborn persons) you’ll be much less sanguine about vesting such powers in judges. I would feel that that would be a bad decision, just as I feel that citizens united was a bad decision, just as I am a bit questionable on the heller decision. There are some decisions they have made that I agree with, like brown v education, or roe v wade. Though that bad of a decision [to outlaw abortion nationally] would be political suicide for republicans. It’s one thing to oppress people in your own states, it’s quite another to reach across state lines, and try to oppress people in others. If you notice, most of the times when republicans have talked about state’s rights, it has been of a state’s right to enslave, oppress, or disenfranchise its residents, while when the left talks about state’s rights, it is in the context of protecting its residents from oppression from the federal govt. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 23, 2017, 4:22pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/212 "2017-03-23T16:22:52Z")
> [@skdo23](#): > > Don’t let the door hit your ass Neil. > > [https://www.washingtonpost.com/powerpost/gorsuch-confirmation-hearing-to-focus-today-on-testimony-from-friends-foes/2017/03/23/14d21116-0fc7-11e7-9d5a-a83e627dc120\_story.html?utm\_term=.ed251665e4f7](https://www.washingtonpost.com/powerpost/gorsuch-confirmation-hearing-to-focus-today-on-testimony-from-friends-foes/2017/03/23/14d21116-0fc7-11e7-9d5a-a83e627dc120_story.html?utm_term=.ed251665e4f7) From the linked article: > [@](#): > > Gorsuch “declined to answer question after question after question with any substance. … All we have to judge the judge on is his record,” Schumer said. Oh boo fucking hoo. It’s such a blatant lie for Schumer to frame his objection to anything other than partisanship. We only have his extensive record! If Schumer simply said that he wants to block any and all Trump nominees, at least that’d be principled. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 23, 2017, 4:23pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/213 "2017-03-23T16:23:20Z")
> [@Okrahoma](#): > > I am sure there will be a few. Manchin et al. Not sure about 8. But Gorsuch’s confirmation is 100% guaranteed, filibuster or not. There is no way that Republicans will allow Democrats to block him. I will take any bet of any size on that. Not exactly a risky prediction. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 23, 2017, 4:26pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/214 "2017-03-23T16:26:30Z")
> [@k9bfriender](#): > > A reasonable interpretation of the first extends to digital communications, but this is an interpretation, and I have seen arguments (not that I agree with them) against that interpretation. Such arguments are absurd on their face. One can make an argument that the Second only refers to “Arms” as in human limbs. Would be just as absurd. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [March 23, 2017, 4:30pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/215 "2017-03-23T16:30:48Z")
> [@Okrahoma](#): > > Such arguments are absurd on their face. One can make an argument that the Second only refers to “Arms” as in human limbs. Would be just as absurd. That would actually be a pretty dumb interpretation, and one that flies in the face of what any reasonable person could say that the founders intended. They called the arms, then picked them up and shot with them. I am not talking about semantic arguments here, I am talking about interpretations that come about because of things that did not exist. Unless you are claiming that the writers of the constitution would be as confused by the term “arms” as they would be by the term “digital” (which they would interpret as “fingers”) then your analogy falls flat, before it ever gets out of the gate. This is in contrast to a technology that they could not have possibly envisioned in any way, and a technology that is different , not just in medium, but in use and potential for disruption than mere “speech”. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 23, 2017, 4:33pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/216 "2017-03-23T16:33:12Z")
> [@Bricker](#): > > The judges I want are the judges who believe it’s not the role of judges to use that power. > > I don’t want judges who are willing to use that power to create “right” results when the law doesn’t help the “right.” I think we’re arguing that all judges are like that, because they’re human, even when they don’t realize it. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 23, 2017, 4:37pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/217 "2017-03-23T16:37:40Z")
What argument is there that digital communication is not included in “press”? I think proponents of flexible reinterpretation are conflating two separate concepts. Suppose the constitution used the term “vehicle” and the question was whether the word should be applied to cars. The only argument would be that while cars are clearly vehicles, they didn’t exist at the time the constitution was written. The counter-argument would be that who cares, the bottom line is that they’re vehicles and the constitution says vehicles. But suppose we were talking about something which is not a “vehicle” even today. However, some judge comes along and says look here, the purpose of the constitution in discussion vehicles was such-and-such general principle, and that same general principle applies today in the case of things which are not vehicles, due to changes in circumstances or public morality, so I therefore declare that anything stated in the constitution about vehicles applies in such cases. The second is a fundamentally different type of expansion than the first. But many people conflate the two. Everyone accepts the first. Many reject the second. > [@iiandyiiii](#): > > I think we’re arguing that all judges are like that, because they’re human, even when they don’t realize it. All judges are biased. Therefore we should ignore blatant and obvious bias. With me on this? That’s called letting the perfect be the enemy of the good. You do your best, even if perfection cannot be attained. You don’t just do away with the entire standard on that basis. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [March 23, 2017, 4:42pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/218 "2017-03-23T16:42:26Z")
> [@k9bfriender](#): > > That would actually be a pretty dumb interpretation, and one that flies in the face of what any reasonable person could say that the founders intended. They called the arms, then picked them up and shot with them. I am not talking about semantic arguments here, I am talking about interpretations that come about because of things that did not exist. Unless you are claiming that the writers of the constitution would be as confused by the term “arms” as they would be by the term “digital” (which they would interpret as “fingers”) then your analogy falls flat, before it ever gets out of the gate. > > This is in contrast to a technology that they could not have possibly envisioned in any way, and a technology that is different , not just in medium, but in use and potential for disruption than mere “speech”. Your argument is absurd on its face. Does freedom of the press apply only to the NYT sold at the corner newsstand, but not to [nytimes.com](http://nytimes.com)? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 23, 2017, 4:43pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/219 "2017-03-23T16:43:13Z")
> [@k9bfriender](#): > > Of course the first amendment does not restrict speech, it only allows it. But it only allows speech, press, assembly, religion and petition. It says nothing about digital communications. This is just wrong - the 1st amendment doesn’t “allow” anything. It restricts Congress (and now also the States) from passing laws that abridge some rights that the people already have. It specifically calls out some things as you note, but the enumeration of those things does not mean that all else is prohibited which could follow from your construction of “allow”. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 23, 2017, 4:48pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/220 "2017-03-23T16:48:05Z")
> [@Fotheringay-Phipps](#): > > All judges are biased. Therefore we should ignore blatant and obvious bias. With me on this? > > That’s called letting the perfect be the enemy of the good. You do your best, even if perfection cannot be attained. You don’t just do away with the entire standard on that basis. That’s not what I’m arguing at all. [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=10) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=12)