# 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:** 12
**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, 4:50pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/221 "2017-03-23T16:50:58Z")
ISTM that you are. You’re saying that “_all judges are like that, because they’re human, even when they don’t realize it_”, and using that to argue in favor of granting judges the right to deliberately do that, instead of calling on them to refrain from that to the extent possible. At least that’s how I understand you. If you’re saying something else, you need to clarify, I would think. ---
**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, 4:57pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/222 "2017-03-23T16:57:26Z")
> [@iiandyiiii](#): > > I tend to think that everyone (everyone discussing law, anyway) interprets law with their own biases, consciously or not. I don’t think it’s possible for humans to avoid it. I don’t trust anyone insisting they have the special secret sauce to interpret totally objectively, or literally, or strictly, or whatever – it’s all just different teams, as far as I can tell. Some are better at using language and research to provide a cogent justification of their decisions, but it’s still all interpretation flavored by human bias. Thus I think it’s a worthy goal to try and interpret law objectively, strictly, literally, and all that jazz, but in **the many, many cases in which this isn’t very obviously clear** (and in most substantive areas of disagreement, it’s not, IMO), then I’m content with going by “what’s right”, _since that’s what everyone’s going to do anyway, regardless of what they say_ (or what they even believe they’re doing, in many cases). (my bold) I think this is a key disagreement. I don’t think there are many many cases that aren’t obviously clear what the law is. And if there are such cases in what I would characterize as rare examples, perhaps the court shouldn’t weigh in at all for lack of justiciability. ---
**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, 4:58pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/223 "2017-03-23T16:58:12Z")
> [@Fotheringay-Phipps](#): > > ISTM that you are. You’re saying that “_all judges are like that, because they’re human, even when they don’t realize it_”, and using that to argue in favor of granting judges the right to deliberately do that, instead of calling on them to refrain from that to the extent possible. > > At least that’s how I understand you. If you’re saying something else, you need to clarify, I would think. I’m saying they already have that “right”, and there’s nothing anyone can do about it. Because they’re human, and because every decision requires some sort of interpretation. And I’m saying that I don’t trust anyone who says they or their philosophy is a more accurate, or literal, or strict, or whatever, interpretation of text. I think it all requires subjective opinion in their interpretation. I in favor of trying to stick to text of law - I just don’t think anyone who says they have a better way of doing so actually does; they just have another interpretation. “Better” or “worse” depends on POV and opinion, except in some of the most obvious and clear examples, and can’t be determined objectively by humans. ---
**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, 4:59pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/224 "2017-03-23T16:59:25Z")
> [@iiandyiiii](#): > > I think we’re arguing that all judges are like that, because they’re human, even when they don’t realize it. And I am arguing that I want judges who consciously work to understand and avoid that interpretive method. Look, sometimes cynics will say that the study of rational thinking merely gives students a rich language to explain the cognitive errors they continue to make. But that’s not true: understanding, as an example, the fundamental attribution error means that we recognize it and are less likely to fall victim to it. So as an analogy: I want rational thinkers who understand the [fundamental attribution error](https://en.wikipedia.org/wiki/Fundamental_attribution_error), and agree it’s valuable to avoid over-attributing behavior to traits, even if the reality is that they may fall victim to it, as opposed to thinkers who simply say that the fundamental attribution error is unavoidable and embrace it when it returns results they like. ---
**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, 5:04pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/225 "2017-03-23T17:04:41Z")
> [@iiandyiiii](#): > > I in favor of trying to stick to text of law - I just don’t think anyone who says they have a better way of doing so actually does; they just have another interpretation. “Better” or “worse” depends on POV and opinion, except in some of the most obvious and clear examples, and can’t be determined objectively by humans. The claim that the right to an abortion is sacrosant for the first trimester is as easily evident in the text of the Constitution as the claim that owning a semi-auto handgun is protected by the Constitution? Really? Those are both simply opinions, no objective difference there at all? OK. Once again I commit myself to ensuring that people that think like you don’t get to be judges, don’t get to appoint judges, and don’t get to influence the practice of judicial interpretation. ---
**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, 5:04pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/226 "2017-03-23T17:04:54Z")
> [@iiandyiiii](#): > > I’m saying they already have that “right”, and there’s nothing anyone can do about it. Because they’re human, and because every decision requires some sort of interpretation. And I’m saying that I don’t trust anyone who says they or their philosophy is a more accurate, or literal, or strict, or whatever, interpretation of text. I think it all requires subjective opinion in their interpretation. So you’re saying there’s no difference at all between a judge who tries his hardest to avoid expansion and creative reinterpretation of the law but who sometimes falls short, as people sometimes do, and a guy who deliberately and consciously expands and creatively reinterprets the law? ISTM that this is a remarkable stretch. ---
**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, 5:09pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/227 "2017-03-23T17:09:57Z")
> [@Fotheringay-Phipps](#): > > What argument is there that digital communication is not included in “press”? So, are you implying that your comments on this message board make you a member of the press? Or are your comments on this message board protected (from the government, not from moderators or owners) because they are speech? And are your comments on this message board really speech, or are you typing on a keyboard into a digital communications device that they never would have envisioned. Like I said, it is an easy interpretation to make, but it is an interpretation. If you were taking a purely textual interpretation of the constitution, I would ask you, where does it give you the right to digital communications? > [@](#): > > 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. I would say that it is more as if they had used the term “carriage” and the question is whether or not it should apply to cars. > [@](#): > > 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. In that case, it would be like taking the word “carriage” and applying it to motorcycles. > [@](#): > > 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.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. I was not arguing that the right to speech should not cover digital communication, I am just saying that speech != typing on a keyboard and sending it through electronic devices around the world. It is different not only in form, but in function as well. I am arguing that it does require some level of interpretation to make that case. > [@D\_Anconia](#): > > 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)? Depending on your literal interpretation, I suppose it may, but that does not address anything I said, so I am not sure why you brought it up. Hint, speech is not the same thing as the press. > [@Bone](#): > > 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”. Maybe I could have been clearer, but my point was that the first allows you to have freedom of speech, in that it disallows congress from passing a law against it. As you even acknowledge, those things that are not enumerated, while not prohibited because of their lack of enumeration, could be prohibited by congress, due to their lack of enumeration. With a refusal to interpret the constitution, and only take it literally, should congress pass a law restricting digital communications, the first amendment would not be a protection against that. With a slight amount of interpretation, it would be. My point being, the argument is not over whether or not judges should be interpreting things, but as to how much room they should be given in interpreting things. ---
**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, 5:18pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/228 "2017-03-23T17:18:47Z")
> [@Bone](#): > > (my bold) > I think this is a key disagreement. I don’t think there are many many cases that aren’t obviously clear what the law is. And if there are such cases in what I would characterize as rare examples, perhaps the court shouldn’t weigh in at all for lack of justiciability. Courts don’t just “weigh in”. People take a suit or a criminal complaint before a court, and the court needs to make a decision. That’s the entire point of the court. They are there to make a decision on cases where it is not obvious what the law is, if it was always obvious what the law was, we wouldn’t need courts, we would just need judge dred. Basically, you are saying that courts should simply recuse themselves any time they find that the intersection of the law and people is tricky? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 23, 2017, 5:23pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/229 "2017-03-23T17:23:50Z")
> [@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. You’re certain of that, eh? So, let’s say that Trump gets a bunch of strict textualists on the court, and they decide that the 2nd Amendment only apples if you’re actually in a militia. Is your response: 1. Strict textualism is an important judicial philosophy, even when it leads to results I don’t like. 2. Strict textualism is an important judicial philosophy, which was badly misapplied in this case. 3. Strict textualism is a bunch of bullshit! I assume your answer is something other than “3.” Why do you assume that people who disagree with you would react any differently than you do? ---
**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, 5:28pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/230 "2017-03-23T17:28:28Z")
> [@k9bfriender](#): > > Courts don’t just “weigh in”. > > People take a suit or a criminal complaint before a court, and the court needs to make a decision. That’s the entire point of the court. They are there to make a decision on cases where it is not obvious what the law is, if it was always obvious what the law was, we wouldn’t need courts, we would just need judge dred. > > Basically, you are saying that courts should simply recuse themselves any time they find that the intersection of the law and people is tricky? \*\*iiandyiii \*\*makes the claim that there are many many instances that it is not clear what the law is. And because he believes that, he is sanguine about the idea of judges using their positions and embracing their own biases to do what’s right. So my disagreement is two fold - first, I don’t think there are many many instances where the law is not clear. Second, if the law truly is not clear, then the issue at play may not be justiciable. If that is the case, then the court should not try to answer those questions. ---
**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, 5:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/231 "2017-03-23T17:38:23Z")
> [@Miller](#): > > You’re certain of that, eh? > > So, let’s say that Trump gets a bunch of strict textualists on the court, and they decide that the 2nd Amendment only apples if you’re actually in a militia. Is your response: > > 1. Strict textualism is an important judicial philosophy, even when it leads to results I don’t like. > > 2. Strict textualism is an important judicial philosophy, which was badly misapplied in this case. > > 3. Strict textualism is a bunch of bullshit! > > I assume your answer is something other than “3.” Why do you assume that people who disagree with you would react any differently than you do? (2) And I assume other react differently because they are results-driven in the first place: they want judges to have this interpretive stance because it will lead to results they like, not because they believe some fundamental role of judges is in play. ---
**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, 5:45pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/232 "2017-03-23T17:45:58Z")
> [@Bricker](#): > > The claim that the right to an abortion is sacrosant for the first trimester is as easily evident in the text of the Constitution as the claim that owning a semi-auto handgun is protected by the Constitution? Really? Those are both simply opinions, no objective difference there at all? > > OK. I think there’s a difference, but I’m not sure if it’s “objective” – obviously neither is called out explicitly in the text. > [@](#): > > Once again I commit myself to ensuring that people that think like you don’t get to be judges, don’t get to appoint judges, and don’t get to influence the practice of judicial interpretation. I’m not sure if you fully understand how I think, but even if you did you’d still probably feel the same way. Which isn’t surprising, of course – people who disagree politically are likely to work so that the other side shouldn’t be judges and shouldn’t influence who gets to be judges. ---
**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, 5:48pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/233 "2017-03-23T17:48:19Z")
> [@Fotheringay-Phipps](#): > > So you’re saying there’s no difference at all between a judge who tries his hardest to avoid expansion and creative reinterpretation of the law but who sometimes falls short, as people sometimes do, and a guy who deliberately and consciously expands and creatively reinterprets the law? > > ISTM that this is a remarkable stretch. No, not that there’s no difference, but that the difference is often (and maybe usually) not visible, or not able to be determined with any more certainty than a coin flip. ---
**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, 5:50pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/234 "2017-03-23T17:50:03Z")
> [@Bone](#): > > \*\*iiandyiii \*\*makes the claim that there are many many instances that it is not clear what the law is. And because he believes that, he is sanguine about the idea of judges using their positions and embracing their own biases to do what’s right. So my disagreement is two fold - first, I don’t think there are many many instances where the law is not clear. Second, if the law truly is not clear, then the issue at play may not be justiciable. If that is the case, then the court should not try to answer those questions. In terms of contentious issues, I think there are many such instances. In terms of overall legal decisions in the entire world of law, then there might be relatively few… but amongn the issues that tend to dominate GD, I think instances in which the law isn’t obvious and clear are pretty common (examples: abortion, gun rights, discrimination, voting rights, and many more). ---
**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, 5:52pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/235 "2017-03-23T17:52:10Z")
> [@Bricker](#): > > (2) > > And I assume other react differently because they are results-driven in the first place: they want judges to have this interpretive stance because it will lead to results they like, not because they believe some fundamental role of judges is in play. Or maybe they honestly actually have a different legal interpretation based on their understanding in the strictest and most literal sense of what the text says. ---
**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, 6:01pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/236 "2017-03-23T18:01:37Z")
> [@k9bfriender](#): > > Depending on your literal interpretation, I suppose it may, but that does not address anything I said, so I am not sure why you brought it up. > > Hint, speech is not the same thing as the press. No shit. What is your definition of “speech”? Verbal only? Face to Face? What about on the telephone, which the Founders also didn’t envision? How about written? Only in a letter back home? A Letter to the Editor? A pamphlet? Or, in an email or message board post? Hint: They are all speech. > [@](#): > > As even you acknowledge, those things that are not enumerated, while not prohibited because of their lack of enumeration, could be prohibited by congress, due to their lack of enumeration. Under the Ninth Amendment, they can’t. ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 23, 2017, 6:08pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/237 "2017-03-23T18:08:39Z")
> [@Fotheringay-Phipps](#): > > I think Garland is something that gets the base a lot more worked up and also strikes the average person as a legitimate grievance. Claiming to be opposed to Gorsuch over Russia doesn’t get the base worked up and strikes the average person as bogus and hence just a cover for obstructionism. So I don’t see much point in it. Any polling data to support this? Strikes me that the Democratic base is VERY worked up over Russia right now, and given that [most Americans are concerned about possible connections between Russia and the Trump campaign, and two-thirds support the appointment of a nonpartisan special prosecutor,](http://www.cnn.com/2017/03/06/politics/trump-approval-rating-russia-poll/) I’m not finding this assertion particularly plausible. ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/238 "2017-03-23T18:13:31Z")
Being worked up about Trump’s links to Russia doesn’t translate into being worked up about confirming Gorsuch while Trump’s links to Russia have not been fully investigated. Nobody seriously thinks that Gorsuch, or Trump’s nomination of Gorsuch, has anything to do with Russian influence. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [March 23, 2017, 6:18pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/239 "2017-03-23T18:18:29Z")
k9befriender: > [@](#): > > So, are you implying that your comments on this message board make you a member of the press? > > Or are your comments on this message board protected (from the government, not from moderators or owners) because they are speech? > > And are your comments on this message board really speech, or are you typing on a keyboard into a digital communications device that they never would have envisioned. > > Like I said, it is an easy interpretation to make, but it is an interpretation. If you were taking a purely textual interpretation of the constitution, I would ask you, where does it give you the right to digital communications? Is it clear that the founders included in “free speech” not only oral verbal communication but also whatever forms of communication were available in their time, such as ink-on-paper writing, or stage acting? If so, then it’s clear that other, yet unheard of forms of communication are also included as they become available. ---
**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, 6:18pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/240 "2017-03-23T18:18:49Z")
What are the limits of your judicial philosophy, **Bricker** (and **F-P** and **Bone** , if you like), if they exist? If there were a hypothetical situation in which a madman was allowed, by some strange fluke of law, to build a doomsday device or doomsday disease in his garage, would you be okay with a judge selectively interpreting law to find a way to structure an argument to order authorities to stop him before the end of the world? Did the judges correctly apply law in the Dred Scott decision… and if they did, how wrong would it have been for them to have selectively interpreted text to find a way to decide the other way? Would it have been wrong for the judges and Roman soldiers to find a way to free Jesus, even if the law was “correctly” applied in his verdict and sentencing? In my view, there’s a limit. When something is as profoundly unjust as slavery, that limit is probably pretty damn low – it would have been entirely moral and just to arm Nat Turner and other slaves with machine guns, if possible, IMO, even if it were very obviously against the law. And it would have been morally correct and justified for a judge to manipulate legal language and interpret text to find a way to free slaves. It’s not nearly so bad now, but I think a limit still exists (as I assume everyone does, even if it’s only for silly doomsday scenarios), even if it’s reasonable to discuss where that limit ought to be. [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=11) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=13)