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Rochester judge says Trump SCOTUS pick hard to pin down

March 19, 2017 11:31 PM

Critics have launched a campaign against President Trump’s choice for the U.S. Supreme Court but a veteran New York jurist predicts Judge Neil Gorsuch may be a hard target to destroy. 

“When he first came out of the box, it was very critical. Everyone was a bit critical of this conservative, right wing, judge that Donald Trump has put forward,” observed retired New York Supreme Court Justice Joseph Valentino.  “But, the more you read about his judicial integrity and his qualities, I don't believe it is such a bad selection as some people have indicated."

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Nominated by President Trump to replace the late Justice Antonin Scalia, Gorsuch was scheduled to go before the Senate Judiciary Committee for the start of comfirmation hearings on Monday March 20.  As the hearings approached, Gorsuch came under intense criticism with much of it coming from New York’s senior U.S. Senator, Democrat Chuck Schumer.    In a series of announcements Schumer accused Gorsuch of being an ally of powerful interests and an enemy of ordinary citizens.   But Valentino pointed to specific cases where Gorsuch sided with strongly disfavored individuals confronting big institutions.  “On defendant’s rights, he's come down on the side of the rights of the individual, the rights of the defendant,” Valentino said.

Valentino cited Gorsuch’s writings in the case of convicted murderer Andrew Yellowbear, now serving life in prison in Wyoming, an opinon Gorsuch himself names as one of his most consequential.   Yellowbear demanded his prison accommodate his American Indian religious observances by allowing him access to a “sweat lodge.”  In his opinion, Gorsuch sided with Yellowbear.

Gorsuch also came down against law enforcement in the case of an Albuquerque teenager arrested for disrupting school with burping noises.  Arresting the teen, Gorsuch declared, went too far.    “All of his decisions are not strictly conservative decisions,” said Valentino.

Gorsuch pleased many conservatives and outraged many liberals with his ruling in the case of Burwell v. Hobby Lobby.  Upheld by the U.S. Supreme Court, that decision found that business owners could not be forced to violate their religious principals by paying for employees’ birth control coverage, raising the specter of a right-leaning Gorsuch rendering decisions on controversial issues such as abortion.  “I don't see it as a pro-life stance,” Valentino countered.  “I see it as he's indicating it's a decision concerning religious beliefs.  He didn't want to have the government imposing religious beliefs on a corporation.”

Valentino observed that even a strongly conservative Justice Gorsuch would leave the Supreme Court’s ideological balance much the way it was before the 2016 death of Justice Scalia, himself an icon of the right.  But Gorsuch’s writings have deviated from Scalia’s’ on one important point, the courts’ relationship to executive branch regulatory agencies such as the Labor Department or the Environmental Protection Agency.  Under a principle known as the “Chevron deference,” from a 1980s-era case involving oil giant Chevron, judges have chosen not to overrule the interpretations and implementations of laws by the agencies that implement them.   In his writings, Gorsuch has challenged that notion, declaring that courts and legislators should instead be the final arbiters whenever the meanings of laws are contested and agencies’ implementation of them is questioned.

That line of reasoning, Valentino welcomed.  “Agencies, bureaucracies, should not have the ability to regulate life determining matters in our society,” he said.   “That may be in for a change. You never know. And it's probably a welcome change as far as I'm concerned.”

Valentino also noted that courts taking a harder line on executive branch power could backfire on President  Trump as Trump tries to flex his own executive authority  “The new president is dismantling all of president Obamas regulations, or at least he's trying to dismantle all of them.   If he tries, in the future, to impose his own regulations, he may get blocking, or backlash, from the Supreme Court, if they all follow this line of thinking.”

Credits

Charles Molineaux

Copyright 2017 - WHEC-TV, LLC A Hubbard Broadcasting Company

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