Re: John Derbyshire's "Gorsuch no Scalia" Radio Derb

From: An American Legal Professional [Email him]

John Derbyshire and I are of one mind against immigration and race preferences but he has both Justice Scalia and Judge Gorsuch wrong on his " left-right scale of judicial opinion". Derb wrote

If you imagine a left-right scale of judicial opinion, calibrated with views like VDARE.com’s at positive ten and someone like, oh, Rachel Maddow at negative ten, then the late Antonin Scalia was a positive five, Samuel Alito is a positive two, and John Roberts is a positive one. On this scale Gorsuch looks like another positive one, maybe positive one point five.

Meanwhile we have Ruth Bader Ginsburg as negative five, Elena Kagan at negative seven, and the Wise Latina at negative twenty-nine. It’s just so unbalanced.

I know people who worked with Scalia, and even giving National Question and related issues appropriate weight, Justice Scalia was closer to a +8 or so.

He was no fan of unchecked immigration, believed in the methodical enforcement of the Nation's laws, disagreed with President Obama's DACA order both on its procedural dimensions (i.e. that it attempted to act as law though it had not been passed by Congress) and its substantive ones (simply waiving immigration laws), and despised—I mean personally despised—racial set-asides and giveaways in the name of "affirmative action."

He thought, as I do, that nothing could be more corrosive to a Republic than providing the populace with tangible incentives to sub-divide into racial tribes and thus tribalism, and that these practices plainly violated the Constitution.

He was apparently as friendly an audience to patriotic views as one realistically hope for absent a sort of black swan event.  I assume Derbyshire’s model of -10 to +10 roughly falls on a normal distribution in the American people, with a standard deviation around two points.  Thus someone even more stalwart than Justice Scalia on these matters would be deeply improbable, indeed.  (Though Justice Thomas might be just that—but I am not so familiar with him as to be certain.)

Judge Gorsuch is not a mere +1.  Derbyshire misunderstands his comments regarding precedent.  No one—no matter how radical—can say, in our current climate of nominations—that they will tear up precedents, root and branch.  Even Justice Sotomayor, who Derbyshire correctly surmises has the greatest absolute value of anyone on the Court right now by his scale, was obligated to say that she accepted the Court's decision in Heller, which returned the Second Amendment to its original meaning and thereby guaranteed a fundamental right to bear handguns.  [Sotomayor Hearings, PDF]

Surely Derbyshire would not take such a statement as suggesting that Justice Sotomayor was a mere +2 or so.  And rightly not.  This is all theater.

So, at minimum, Judge Gorsuch will not disappoint on those grounds. And I would not take anything he says at his confirmation as proof otherwise, at least not based on a seeming mildness or compliance with Democrats' questions.  A few further points that I know, from reliable informants,  of Judge Gorsuch before I give you my estimate on your scale.

He is a rock-ribbed law-and-order sort, who brooks no sympathy for those attempting to end capital punishment, through the courts or otherwise. He is reported to believe that race preferences are flatly unconstitutional, whether styled as quotas or merely "plus factors," and whether used to recompense for past discrimination or to encourage diversity.

I do not know his position on immigration, but I know his positions on law enforcement and his role as a judge—and those are that the laws should be enforced as-written, and his role as a judge, then Justice, will be to apply the Constitution and statutes of the United States as they are, prevailing leftist wishes be damned (unless they are memorialized in laws).

In other words, he will not tolerate the Ninth Circuit's repeated, intransigent, lawless defiance of the President's valid executive orders, and he will not shrink from a fight.

So perhaps I do not have enough evidence to call Judge Gorsuch a +8 or +9.  Extraordinarily high numbers require extraordinary proof.  But please know that he is at least a +6 or 7, and possibly better than that.  Our side will get a fair hearing before him.