# 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:** 15
**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, 11:33pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/281 "2017-03-23T23:33:45Z")
> [@iiandyiiii](#): > > Sure, I could have, but I was too busy refuting dumb liberal claims elsewhere on the internet. Link to a couple of them. ---
**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, 11:41pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/282 "2017-03-23T23:41:43Z")
> [@Bricker](#): > > Well… no, still not in agreement. The SDMB, priding its collective self on being reality-based and skeptical, ought to have had more posters than you and me wonder at the absurdity of the exacting 87% figure and trigger a careful look at the cite. > > It was confirmation bias. It could have been, or laziness/indifference 🙂 I’m not immune to confirmation bias, myself, I’m sure. We may collectively aspire to be our best selves but it’s okay to fall short in reasonable ways. And a feature of an adversarial system I think is that people in opposition can be expected to call out those instances, as was done in this example. No harm, no foul. Of course I try to interpret charitably, YMMV. > [@Bricker](#): > > Link to a couple of them. Sarcasm, dude. ---
**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 24, 2017, 12:04am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/283 "2017-03-24T00:04:39Z")
> [@Bricker](#): > > Link to a couple of them. Wow, you’re really serious? Okay… This one’s from a few months ago, but [here’s one](http://boards.straightdope.com/sdmb/showpost.php?p=19468721&postcount=6). And I couldn’t find the link, but sometime in mid 2016 someone called you racist for supporting voter-ID laws, and I defended you. But in case it wasn’t clear, I was having a bit of fun… I admit that I’m human, and I don’t always click every link and read every post, especially when it’s a line of discussion that I’m not specifically involved in. And when I do, I’m sure that my own biases sometimes play a role in which ones I decide to respond to. I try to be a perfect poster, and be just as tough on bad liberal arguments as I try to be on bad conservative arguments, but sometimes I probably fall short of that ideal. I will strive to do better, as always. ---
**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 24, 2017, 12:05am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/284 "2017-03-24T00:05:05Z")
> [@Bricker](#): > > Well… no, still not in agreement. The SDMB, priding its collective self on being reality-based and skeptical, ought to have had more posters than you and me wonder at the absurdity of the exacting 87% figure and trigger a careful look at the cite. > > It was confirmation bias. Really, man, it was like _two hours_ from when BPC posted the link to when you and Bone pointed out the flawed methodology, which nobody has subsequently tried to defend. And the point of the study was that Gorsuch was pretty far out on the fringe; nobody was saying “well, 86% I could have handled, but 87% is just beyond the pale!” ---
**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 24, 2017, 12:08am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/285 "2017-03-24T00:08:07Z")
> [@Bone](#): > > I don’t think that’s a fair criticism. Not everyone reads every link, and given that claim isn’t really central to any underlying argument, it’s reasonable to not look at the methodology which you have to click through twice (some of it) to get to. Only if someone were to adopt that cite as support for a given position would I expect them to read it. > > And if someone else points out the problems with the cite (me in post #253), there really is no need to add to that unless the item is contested. I don’t think anyone is contesting that the 87% figure and the ‘more conservative than Scalia’ criticism employed pretty terrible ways to measure anything. Well, I actually did cite that link as my reason for thinking the Democrats should filibuster Gorsuch, so Bricker was quite right to call me on it. So I am again undecided…anyone else want to argue that Gorsuch is or isn’t an “extreme” conservative, as opposed to just a conservative? Need answer fast, as my Senators are waiting breathlessly for my input on this.🙂 ---
**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 24, 2017, 12:10am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/286 "2017-03-24T00:10:48Z")
> [@Thing\_Fish](#): > > Well, I actually did cite that link as my reason for thinking the Democrats should filibuster Gorsuch, so Bricker was quite right to call me on it. > > So I am again undecided…anyone else want to argue that Gorsuch is or isn’t an “extreme” conservative, as opposed to just a conservative? Need answer fast, as my Senators are waiting breathlessly for my input on this.🙂 He seems like a pretty “normal” conservative (which is still kinda extreme, to me, at least) to me, but I support a filibuster for strategic rather than ideological reasons. ---
**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 24, 2017, 12:31am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/287 "2017-03-24T00:31:35Z")
> [@Thing\_Fish](#): > > Really, man, it was like _two hours_ from when BPC posted the link to when you and Bone pointed out the flawed methodology, which nobody has subsequently tried to defend. And the point of the study was that Gorsuch was pretty far out on the fringe; nobody was saying “well, 86% I could have handled, but 87% is just beyond the pale!” I tend to believe that a measure of a judge’s politics should be irrelevant for this position. The only relevant question is if they apply the law as it is. I realize that this standard will favor conservative judges but that’s because they are correct 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 12:54am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/288 "2017-03-24T00:54:42Z")
> [@iiandyiiii](#): > > Wow, you’re really serious? Okay… > > This one’s from a few months ago, but [here’s one](http://boards.straightdope.com/sdmb/showpost.php?p=19468721&postcount=6). Actually, no, I’m sorry for this, but there plenty of liberals, and the American Civil Liberties Union, who’d agree with your view there. > [@](#): > > And I couldn’t find the link, but sometime in mid 2016 someone called you racist for supporting voter-ID laws, and I defended you. And I appreciate that and thank you, but I feel I should point out that the frequency claim is the one I was sort of puncturing. > [@](#): > > But in case it wasn’t clear, I was having a bit of fun… I admit that I’m human, and I don’t always click every link and read every post, especially when it’s a line of discussion that I’m not specifically involved in. And when I do, I’m sure that my own biases sometimes play a role in which ones I decide to respond to. I try to be a perfect poster, and be just as tough on bad liberal arguments as I try to be on bad conservative arguments, but sometimes I probably fall short of that ideal. > > I will strive to do better, as always. Thanks. I think you’re nowhere near the worst offender on this point. We all have biases, to be sure; my point is that many here embrace them rather than fight them. ---
**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 24, 2017, 1:04am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/289 "2017-03-24T01:04:04Z")
> [@Bricker](#): > > Actually, no, I’m sorry for this, but there plenty of liberals, and the American Civil Liberties Union, who’d agree with your view there. Goalpost shifting! I call goalpost shifting! 😉 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 1:06am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/290 "2017-03-24T01:06:43Z")
> [@Thing\_Fish](#): > > Really, man, it was like _two hours_ from when BPC posted the link to when you and Bone pointed out the flawed methodology, which nobody has subsequently tried to defend. And the point of the study was that Gorsuch was pretty far out on the fringe; nobody was saying “well, 86% I could have handled, but 87% is just beyond the pale!” It’s not the magnitude – it’s the exactitude. Ask someone to guess another person’s weight, and you’ll hear “120, 125” or “185, 190” and very seldom “163.25 pounds.” The claim that Joe weighs 163.25 pounds suggests a precision that must have come from exacting measurement. In the early 1990s Cecil commented on a news story that began, “Otztal Valley, Italy — The mainstream media reported widely on ‘Otzi,’ the 5,477-year-old Stone Age man found mummified in a melting glacier high in the Italian Tyrolean Alps . . .” by wryly observing, “Other dubious details include Otzi’s absurdly exact age (what did they do, find his driver’s license?)” I’m saying that a claim like 87%, applied to the measure of how conservative a jurist is, should have raised skeptical flags, and believe me: I am utterly confident that if it had been a conservative claim there would have been around a two MINUTE delay before it was roundly debunked and the poster who offered it subjected to varying degrees of snark. In this case, it’s simply dropped. Unless someone highlights the issue, and then the discussion we’re having now happens: some flavor of, “Really not such a big deal, Bricker.” ---
**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 24, 2017, 1:37am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/291 "2017-03-24T01:37:12Z")
Dude, it didn’t say “87.25%”, which would have been weird, it said “87%”, because rounding off to whole numbers is what people do. A reasonable person looks at that figure, in the context of a brief newspaper story about a research study, and understands that there is an implied margin of error and that the author isn’t claiming that the study establishes with absolute certainty that the real figure might not be 85% or 90%. ---
**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 24, 2017, 1:48am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/292 "2017-03-24T01:48:18Z")
> [@iiandyiiii](#): > > He seems like a pretty “normal” conservative (which is still kinda extreme, to me, at least) to me, but I support a filibuster for strategic rather than ideological reasons. Well, let me further clarify. I think Scalia was an appalling hack who applied his right-wing ideology without regard for facts or common sense. I understand that elections have consequences, but not to demand that his replacement represent at least _some_ improvement would be to be the proverbial frog in the boiling water. So that’s my boundary…is he as bad as Scalia? If he’s only as bad as Alito, I’ll bend over and say “thank you sir, may I have another?”. ---
**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 24, 2017, 2:21am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/293 "2017-03-24T02:21:26Z")
> [@Bricker](#): > > He wasn’t fired for refusing to operate it. He was fired for leaving it. > > If he stayed with the trailer, he still would have been refusing to operate it, but they would not have fired him. > > If someone gave him a ride on a rickshaw and he left both trailer and tractor there, he would have been fired. > > He was not fired for refusing to operate anything, no matter how many contortions are applied to the word. He was fired for being in Place A while leaving the trailer in Place B. If an angel had wafted him to warm safety in Miami, he would have been fired. If Albus Dumbledore had given him a portkey to Godric’s Hollow, he would have been fired. If Scotty had beamed him aboard the Enterprise, he would have been fired. > > If he had stayed with his trailer he would not have been fired. > > Now, explain clearly, please, how he was fired for refusing to “operate,” again. Be specific. But don’t dodge the basic fact that he was fired for leaving, not fired for operating anything. One could argue that to “operate” a tractor-trailer means to operate both the _tractor_ and the\* trailer,\* hence the name. He refused to operate the tractor-trailer because it would have been unsafe. At that point he had failed to perform his contractual obligation, and he had done so for reasons for which the law protected him from being fired. The actions which he subsequently took – driving off in _part_ of the tractor-trailer in order to \*save his freaking life \*-- are beside the point. ---
**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 24, 2017, 2:31am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/294 "2017-03-24T02:31:08Z")
> [@Fotheringay-Phipps](#): > > I don’t think the “believed” qualifier is necessary. IMO even if every single person in the world agrees that the intention of a law is to serve a certain purpose, that should not give carte blanche to judges to rule anything other than what the law actually says, even if it happens to serve the same purpose. Why not? Take for example our frozen trucker case. Should he be out of luck because it hadn’t occurred to anyone to pass a law specifically covering the situation where a trucker has to disconnect his trailer and abandon his cargo in order to avoid potential death by frostbite? Why shouldn’t a judge be able to look at existing law, infer the underlying principle thereof, and apply it to a situation slightly different than that explicitly addressed in the statutes? If the legislature really did want that guy to choose between losing his job or freezing to death, they could simply pass a specific law to that effect to override the ruling. We have many more judges than legislators; isn’t it reasonable to leave the judges to deal with routine cases and allow the legislators to settle difficult ones, rather than expect the legislators to anticipate every possible situation which a judge might encounter? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 3:30am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/295 "2017-03-24T03:30:10Z")
> [@Thing\_Fish](#): > > Why not? > > Take for example our frozen trucker case. Should he be out of luck because it hadn’t occurred to anyone to pass a law specifically covering the situation where a trucker has to disconnect his trailer and abandon his cargo in order to avoid potential death by frostbite? Why shouldn’t a judge be able to look at existing law, infer the underlying principle thereof, and apply it to a situation slightly different than that explicitly addressed in the statutes? If the legislature really did want that guy to choose between losing his job or freezing to death, they could simply pass a specific law to that effect to override the ruling. > > We have many more judges than legislators; isn’t it reasonable to leave the judges to deal with routine cases and allow the legislators to settle difficult ones, rather than expect the legislators to anticipate every possible situation which a judge might encounter? Because we don’t vote for federal judges. The idea of legislators being responsible for passing laws is consistent with out “WE, The People,” holders of sovereignty: we hold the reins (or the reigns, if you’ll pardon the pun). We can swap the entire House in two years max, and get a third of the Senate at the same time. In four years we can get another third of the Senate and the President. But federal judges hold lifetime tenure, so they are not the ones who should be (at least, in my view of representative democracy) be the ones who create new substantive law. They should be applying the law, in my view, as its written – accepting that even then their approach may not be perfect. But at least they should cleave to that model, and not the model that you describe. In my view. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 3:36am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/296 "2017-03-24T03:36:49Z")
> [@Thing\_Fish](#): > > One could argue that to “operate” a tractor-trailer means to operate both the _tractor_ and the\* trailer,\* hence the name. He refused to operate the tractor-trailer because it would have been unsafe. At that point he had failed to perform his contractual obligation, and he had done so for reasons for which the law protected him from being fired. I agree. But they didn’t fire him for that. > [@](#): > > The actions which he subsequently took – driving off in _part_ of the tractor-trailer in order to \*save his freaking life \*-- are beside the point. No, they’re not. Because those are the actions for which he was fired. Look, if I hire you to babysit my kid, and kidnappers show up, point a gun at you, kidnap the kid, and drive away, you can certainly defensibly argue that you didn’t attack them because you would have died. But do you understand I can still legally fire you? That somehow “I had to save my life” is not a federal legal barrier to your boss firing you? And if I hire you to house-sit, and burglars show up, point a gun at you, steal my collection of Buffy the Vampire Slayer memorabilia, and drive away, you can certainly defensibly argue that you didn’t attack them because you would have died. But do you understand I can still legally fire you? And if I hire you to walk my dog? Guess what? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 24, 2017, 3:45am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/297 "2017-03-24T03:45:12Z")
> [@Thing\_Fish](#): > > One could argue that to “operate” a tractor-trailer means to operate both the _tractor_ and the\* trailer,\* hence the name. He refused to operate the tractor-trailer because it would have been unsafe. At that point he had failed to perform his contractual obligation, and he had done so for reasons for which the law protected him from being fired. The actions which he subsequently took – driving off in _part_ of the tractor-trailer in order to \*save his freaking life \*-- are beside the point. You can say it as often as you like, but as **Bricker** pointed out, he was not fired for refusing to operate the tractor-trailer. He was fired for leaving the trailer on the side of the road. Full stop. > [@Thing\_Fish](#): > > Take for example our frozen trucker case. Should he be out of luck because it hadn’t occurred to anyone to pass a law specifically covering the situation where a trucker has to disconnect his trailer and abandon his cargo in order to avoid potential death by frostbite? Why shouldn’t a judge be able to look at existing law, infer the underlying principle thereof, and apply it to a situation slightly different than that explicitly addressed in the statutes? If the legislature really did want that guy to choose between losing his job or freezing to death, they could simply pass a specific law to that effect to override the ruling. > > We have many more judges than legislators; isn’t it reasonable to leave the judges to deal with routine cases and allow the legislators to settle difficult ones, rather than expect the legislators to anticipate every possible situation which a judge might encounter? No, because the limitations are as much a part of the law as any underlying principle. Take, for example, a civil rights law that says that in administering activity X, one may not discriminate on the basis of race or gender. Suppose a person sues for religious discrimination and says that the law should apply. Under your “underlying principle” rationale, you would say that the law had a purpose of protecting against discrimination so it should apply to religion as well. However, that is a decision our elected representatives expressly chose not to make. Perhaps it was a compromise piece of legislation that never would have passed had religion been included. That limitation is just as valid, more so even, than any underlying principle; the limitation is part of the underlying principle. The principle is that we go this far, but no further. And when a judge starts determining what the underlying principle of what a piece of legislation is, it turns out that he will inadvertently find that this “principle” just so happens to be what he subjectively believes is the correct world view. He is then substituting himself for a democratically elected legislator. In our trucking example, Congress decided that trucking companies are at will employers, but one of the few exceptions to the doctrine is that they may not fire an employee for refusing to operate his vehicle under unsafe conditions. Congress did not intend to meddle with the at-will employment doctrine any further than that. When a judge starts meddling with that to find some grand “principle” what he ends up doing is coming up with a list of things that he does not believe an employee should be fired for doing: something that is not up to a judge, but to Congress. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 3:52am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/298 "2017-03-24T03:52:40Z")
This thread is making me the happiest I have been about the future since November 8th. I was really devastated at the prospect of a Trump presidency. But reading this collection of ideas about what judges should be makes me happy as a clam with the Gorsuch nomination and filled with hope that Ginsburg, Breyer, Kagan, or Sotomayor decide that retirement is a sweet reward. I’d even be okay with them taking senior status in a circuit. I am energized. I want the Dems to filibuster now. And I want the filibuster rule nucleared out of existence and then I want Trump to nominate Pryor, then Kethledge. Both of them are in their fifties - that’s hopefully thirty years of service. And of course he needs to get busy on the circuit and district court vacancies. The way to change this (in my view) flawed picture of judges’ roles that predominate here is simply to create a new normal. Thirty years of Trump-appointed judges might just make up for the raft of crap he’s otherwise going to deliver. ---
**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 24, 2017, 4:01am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/299 "2017-03-24T04:01:59Z")
Meh. You can get charged with drunk driving sitting drunk in a parked car. I’m perfectly fine with ordering someone to stay put in a freezing vehicle being described/equated as ordering a unsafe operation of the vehicle. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 24, 2017, 4:02am UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/300 "2017-03-24T04:02:08Z")
> [@UltraVires](#): > > When a judge starts meddling with that to find some grand “principle” what he ends up doing is coming up with a list of things that he does not believe an employee should be fired for doing: something that is not up to a judge, but to Congress. Well said, sir. We may all believe that an employer should not be able to fire a trucker who abandons his trailer because it’s freezing. But that’s not what “at-will,” employment implies. At-will employment says, indeed, that as cruel as it is, an employer can do exactly that. A judge should not have the freedom to let his sympathy for the trucker fashion a new law that saves his job under such circumstances. Like anyone else, he can lobby Congress to make such a law, but he shouldn’t be empowered to make it. [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=14) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=16)