Obstruct Gorsuch for his own obstructionism, not for plagiarism

It’s hard for me to get morally outraged about Gorsuch’s academic sloppiness when there are so many stronger reasons to oppose his nomination. I can’t say with a straight face that this changes the merits (and really, the demerits) of his nomination. I still care much more about his callous approach to judging (as I wrote about the frozen trucker case) and the likelihood of his non-mainstream views on gay marriage. His answers to Sen. Klobuchar about the special education decision — that he “was bound by precedent” — raised concerns about his legal writing and his thinking about precedent. He was overly eager to signal that he was bound by precedent (ahem, Roe?), but don’t bet on him to follow through, especially when he was not bound to add the word “merely” to water down a special education standard, when the case he was citing did not engage in enough analysis or application of the standard to justify Gorsuch’s minimizing that right. It was also an evasive answer, dodging the substance with an exaggerated claim about precedent.

His evasiveness may not be everyone’s biggest worry, but he was dramatically more evasive than recent nominees, and it establishes a better procedural reason for the procedural filibuster.  In 2005, I wrote an op-ed in the Boston Globe, and it may be more relevant for Gorsuch:

“The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.”

“But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.”


Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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