by Mish
Is “Dilbert Persuasion Theory” in play?
I use that name in reference to Scott Adams the creator of the “Dilbert” comic strip. Adams proposed that Trump says and does things so extreme, and so many extreme things at once, that all Trump has to do is move a bit the other way to have his critics on the run.
Let’s put that theory to the test today starting with The Hill article Trump Taps Neil Gorsuch for Supreme Court.
Trump named Gorsuch, a well-respected conservative who sits on the Colorado-based 10th Circuit U.S. Court of Appeals, after a drama-packed day that resembled the president’s former reality show “The Apprentice.”
After narrowing his list of 21 picks to Gorsuch and Judge Thomas Hardiman of the Third Circuit U.S. Court of Appeals, both men came to Washington, D.C., giving the appearance that either could be picked.
Gorsuch is likely to face a tough confirmation battle, though he was seen as a less provocative choice for the court than Bill Pryor, the circuit judge for the U.S. Court of Appeals for the Eleventh Circuit.
Pryor was a favorite of outside conservative groups, but his controversial views might have made it difficult for Democrats to avoid filibustering him. He has argued that gay people should be prosecuted for having sex, and that abortion should be outlawed including in cases of rape.
Although Prior did not make it to the final two, he is in the on deck circle. Pryor’s views on abortion are extreme. Here is an article that came up just today William Pryor & Abortion: 5 Fast Facts You Need to Know.
Positions of Hardiman and Gorsuch
Please consider Politico excerpts on Thomas Hardiman.
While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.
Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.
Wikipedia notes that Neil Gorsuch “has never had the opportunity to write an opinion on Roe v. Wade. However, based on the opinions expressed in his book opposing euthanasia and assisted suicide, some speculate that he may tend to rule in favor of pro-life stances in abortion-related cases.”
Hill Continues
Sen. Jeff Merkley (D-Ore.) has promised to raise procedural objections to any Supreme Court nominee from Trump, meaning Gorsuch will likely need 60 votes.
But it is unclear whether Democrats at large will back a filibuster. Republicans have 52 seats in the Senate, meaning they need eight Democratic votes to break a filibuster. Ten Democrats are up for reelection in 2018 in states won by Trump in the presidential race. It may be difficult for them to filibuster a nominee such as Gorsuch — though they will be under tremendous pressure from liberal groups to do so.
Neither Gorsuch nor Hardiman will be the lightning rod that Pryor would have been.
Although Pryor did not make it to the final two, he was in the final 21.
Silver Lining?
The Wall Street Journal points out Judge Neil Gorsuch Is Critic of Legal Doctrine That Bolsters Executive Authority.
Judge Neil Gorsuch, President Donald Trump’s nominee to the U.S. Supreme Court, is seen by the right as a credible heir to the late Justice Antonin Scalia. But in one respect, his judicial record could offer Democrats something of a silver lining.
As a member of the 10th U.S. Circuit Court of Appeals in Denver, Judge Gorsuch has emerged as a leading critic of a Reagan-era judicial doctrine that has helped to bolster the power of the executive branch.
Persuasion Theory
For more on persuasion theory and why it may apply here, please see Trump Ban: Inept Policy or Purposeful Action? WW III?
Persuasion play or not, we can all (except the homophobic radical right nut cases) be thankful that someone who believes that gay people should be prosecuted for having sex, did not make it to the Supreme Court.
We can also be grateful Gorsuch is not in favor of expanding the executive branch.
From the point of view of the Left, Gorsuch may very well be the best they could have hoped for. The Left would be foolish to block this pick.
I suspect relatively smooth sailing if Gorsuch handles himself well in senate hearings.
Mike “Mish” Shedlock
