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writing for godot

Good Neighbor Neil vs. Robotoga and the Constitution

Written by Peter Avanti   
Monday, 03 April 2017 15:16

The Neil Gorsuch confirmation battle offers a breathtaking spectacle of the lack of honesty, institutional and personal, in the political struggle to control the ideological balance of the US Supreme Court, and power to interpret the Constitution and legal history. More broadly the hearings reflect the critical and moral vacancy of American politics, and how it is reported in the interests of those who own and profit from information in the public sphere.

In what increasingly appears to be a reality game show where tightly scripted characters perform for an audience to attain popularity and stay in the game, we find Neil presenting himself as a two dimensional “gosh shucks” character from a 60s sit-com. He smiles and informs us that when he puts on his judicial robe he morphs into a dispassionate Constitutional cypher above human interests (personal or ideological) channeling the original intent of the framers and legal precedent.

Neil, the man, he tells us, lives a Mr. Rogers life in a nostalgic Betty and Veronica style comic book world. On the other hand, Gorsuch the judge is a neutral tool of Constitutional justice for our world. On the bench, Gorsuch is a legal machine to interpret the law. A Robotoga keeper of Constitutional truth, justice, and the real American way.

As the script unfolds we find Robotoga doesn’t differentiate between rich or poor, Republicans or Democrats, white or color, corporations and individuals, there is no inequality of power or voice between employers and employees, women’s rights are assured in the Constitution, money is free speech, allot of money is just more free speech. Neil doesn’t know who is funding the multi-million dollar campaign to secure his nomination, it is unimportant he insists as “nobody speaks for me . . . I’m a judge.”

The narrow ping pong commentary of corporate owned, and privately funded, media has honed and repeated this “mild mannered” regular guy with a “transcendent legal mind” narrative. The most talked critical talking point frames the “conservative” Scalia replacement Gorsuch in relation to Republican’s having blocked “moderate” Merrick Garland: "Can the Democrats now block Gorsuch?." This actually feeds into the narrative of “nice guy” Neil, who is innocent of political shenanigans as he himself has told us. Not interested or involved in politics he just “calls balls and strikes.” Simultaneously, the myth of a transcendent Robotoga is advanced by convergent punditry extolling Gorsuch’s cerebral eloquence unmoved by provocative questioning (he says nothing of substance).

Of the rulings and opinions discussed we were reminded that Hobby Lobby had a sound corporate religious right of faith to not be complicit in their women employees’ “wrongdoing” and thus force them to pay for “destroying a fertilized human egg” (in Neil’s parallel nice people world the way birth control works is not clear). The sacrosanct faith of the fathers (the owners) trumps choice for women workers. The Constitution, which makes scant mention of women’s or human egg rights, protects “sincerely held” corporate religious conviction above the pursuit of employee happiness and civil rights. Would the Courts have found for the Plaintiff if they had religious objections to payments for prostate exams or erectile dysfunction prescriptions?

The result is that equal rights freedoms can be selective in relation to women’s bodies and their personal decisions. Those rights are not understood to be impeded if your employer wants you to pay for something even if it is your legal right and/or you can’t. That our rhythm method founding fathers knew nothing of pharmaceutical birth control, little of abortion, and were not interested in women workers and their rights, is of little importance. Gorsuch is objectively clear, the framers’ intent would have it that way, and originalism protects us from “fickle social trends” and the personal values, interests, and ideological biases of individual judges who would only subvert the law and legal precedent to satisfy themselves or their social or economic group interests.

In the case of the freezing trucker vs the company truck, Gorsuch argued for the truck. He believes, at least consequentially, the driver should have frozen to death to protect the company’s capital.  Lest we misunderstand, good neighbor Neil “totally empathize(d)” with the trucker who refused to freeze to death, but he cannot follow his personal moral compass, the law is the law, the company’s property comes before the individual’s right to pursue happiness by staying alive.

The trucker couldn’t use the truck to save his life, he should have frozen to death to protect it, or froze to death on the highway, because while on the job he is effectively a piece of that equipment.  Empathy cannot get in the way of the law, it would be “judicial activism” if a human being engages his emotional or ethical self when making a judgement in a court of law.

Considerably less prominent in the media, but considerably more important, are Gorsuch’s ideas about the 1984 Supreme Court ruling in Chevron v. Natural Resources Council . Known as the Chevron deference, the court found that when judging a government agency’s (in this case the EPA) interpretation of a statute, where “Congress has not directly spoken to the precise question at issue,” courts should defer to reasonable interpretations made by those agencies to implement what is mandated by the law.

Chevron facilitates the functioning of government agencies mandated to regulate commerce, communications, the environment, etc. in a complex and fast changing world where continuous recourse to legislative remedy is impossibly slow, impossibly partisan, or just impossible. Of course, Chevron lost the case, the decision was unanimous, and large corporations, including those who own most of the information services in the vast coffeehouse of the digital public sphere, have been maneuvering to overturn the decision for 30yrs. They never say "overturn Chevron" but talk of regulations inhibiting job growth, and government overreach.

Gorsuch finds Chevron to be an error in need of correction as the ruling gives a governmental agency discretionary power to make rules, essentially regulate by interpreting the law. He would like to overturn it, and with it, by coincidence much of the regulatory apparatus of our system of government. His position is consistent with positivist “originalism,” it has nothing to do with the economic interests of large corporations, and is not related to the millions of dollars being spent for his confirmation.

The lack of any clear opinionated response by Gorsuch during his derisory self-presentation coupled with the obvious ideological bias of his record and personal history (at school and is working life), and its media reduction to a left/right popularity contest, is an offense to the American people. It bears witness to the cynical, degraded state of our national discourse concerning justice, and the deceitful, ideologically concocted, contest between the originalist restraint” vs. politicized “judicial activism.” This is not about the Constitution, the law, the framers, or about left or right as social positions in a democratic society, it is about business, and corporate influence and control of the judiciary.

Originalism is counterfeit. Our humanity, our social imaginary, our laws are forever tied to our history as it plays in the present through actors who have social, cultural, emotional and ethical dispositions. That is, people judge and act through the conviction of their training, social and cultural understanding, and moral values. Even officer Alex Murphy the original Lazarus cyborg in the Robocop (1987) proved to be human.

That a judge’s training makes her ponder and defer to legal precedent to a far greater extent than most of us, makes them at best more conscious of what that history means, how it came to be like it is, and what it brings to the table of justice in relation to the case in point. It guides but cannot and does not supersede the human factor of an encultured judge appointed to make choices about a set of events in their specific context (political, economic, social, technological) at a moment in history. Our history is studded with key judicial decisions that have determined the future direction of our freedoms, federal system, human rights, business/corporate rights, the environment, and so forth.

The Constitution sanctioned slavery and apportioned representation by counting slaves as three fifths of a white man; Dred Scott (1857) affirmed that slave owner rights to human property extended into non-slave States and thus catalyzed the Civil War; the Civil Rights Cases (1883) undermined African Americans’ newly acquired rights under the 13th and 14th Amendments, closed the door on Reconstruction, and opened one for racial segregation; three years later in Santa Clara, (1886), finding for the railroad the court invoked the same 14th amendment to affirm that corporations are “persons” entitled to equal protection that African Americans didn't quite deserve (the devious designation of “person” vs “citizen” in the wording of the 14th Amendment being the interpretive key). Plessy (1896) also found for the railroad, and put a judicial end to budding African American equality and political rights, legalizing Jim Crow segregation and political marginalization; Brown (1954) overturned it. Today courts are addressing new restrictive voting rights laws, and unequal racial sentencing and incarceration. This is the process, and it is ideologically and culturally driven through and through. Gorsuch is well aware of this, his character acting, from Mayberry to Robotoga is a sham.

The framers created a document that stakes claim to the goal of a “more perfect Union,” “Justice”, to “insure domestic tranquility” and “promote the general Welfare”. They wanted to limit the powers of government to curtail personal liberty, and to degrade the quality of life by forces which work against the commonwealth. They were far from perfect, slavery, indenture, Patriarchy, Native American genocide, and property were the order of the day. The intent was to progress beyond themselves and their world in the direction of a “more perfect union” and to enrich the commonwealth.

This is what our representative legislatures and our judiciary are for, to secure the fundamental rights promised in the Constitution, to assure equal justice, rule of law, to promote and regulate commerce, keep us secure, and further the common good. Crucially this must be carried forth as we move forward through time in unmapped technological, environmental, and cultural contexts and contests that have no historical precedent in our less than stellar history. Neil’s exceptionally unexceptional tale of wading a trout stream and biking to Grandma’s foregrounds a premise and claims to rights, society, and money that sits in a sedentary white American social imaginary between Viacom’s TV Land and Fox’s News.

Subjectivity cannot be masked, objectivity cannot be obtained, to protest that they can is delusional, there is no god position, we are human with all the beauty and ugliness that brings to the table. The real questions for a judicial nominee, given that technical qualifications, are in the resume, concern the person, being fair minded, compassionate, inclusive, placing human rights and human value as promised in our Constitution above race, class and economic interests. Yes, a nominee should speak about political convictions we all have them, and we should be troubled when someone says he does not.

Given his presentation of himself at the nomination hearings, is Neil Gorsuch qualified, technically or ethically? The answer is no. A person who would have us believe that he is a flesh and blood actor in a patently fictional world, and vice versa, capable of getting outside his encultured reality—his emotional and ideological person hood, that which makes each of us who we are in a living society (whoever that might be for Judge Gorsuch)—to exercise objective judgement in complex judicial matters, is either fooling us, fooling himself, or both.

If his testimony is a political charade, he is sandbagging and cannot be trusted to be the impartial Justice he professes to be. If he really is the person he describes, with the questions this brings up about delusion and/or who else might share this world view, and who he represents, he is not qualified as his affirmation of reality does not reflect that of 99% of the American people, and is in fact somewhat condescending. It is not our world, and his particular subjectivity should not be the judicial filter for the issues facing the judiciary and by extension American society today.

In each case he is unqualified, and more so by proffering the ideological hideout of originalism where the framers’ ghosts offer interpretative security for clear unflinching judgements about today’s issues of law. Deliberately or inadvertently imprecise, the US Constitution, written in an agrarian world at the beginning of the Industrial Revolution, and amended rarely (17 times in 226 years and one of those repealed another), offers some rules and some guidelines for our laws, grounded, firstly, in the words of its Preamble, and the Bill of Rights. Our laws are a living body growing and shifting with the need to offer solutions to the issues that confront us in a changing world. Our judiciary is the immune system of that body in relation to those Constitutional rules and guidelines: its premises and promises.  A living system of justice that aims to provide for the welfare of its citizens must act in the light of its memory and experience, its referees, armed with historical memory, reasoning with good faith, subjective moral conviction, and personal responsibility. There is no other way to do it, lest we replace American jurisprudence with judicial dogma.

Has the process of confirming Neil Gorsuch and its media portrayal been impartial? In a moment in our history where money talks and citizens are silenced, where we can claim that a fertilized egg has rights where a woman does not, where we are followed about in our information gathering and giving so as to package and sell our private business without personal consent, where White House spokespeople can talk of “alternate facts” and “fake news” as they spew nonsense on social media and openly promote news sources partial to their politics, and where one can sit before the Congressional Judiciary Committee in rehearsed  denial of a long record of favoring the moneyed interests of corporate “people” over the rights of citizens, saying nothing more than “trust me I’m a really nice guy,” impartial is not the word that comes to mind. That the Senate Majority will change cloture rules, and so take the Senate down to road to pure partisanship to guarantee him a seat on the Supreme Court only makes nice guy Neil less believable, and Robotoga just another tool. your social media marketing partner

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