Did the Neil Gorsuch vote on an immigration case constitute a betrayal of the right?
The short answer is no:
It’s a pretty defensible vote.
The law says you can be deported for any “aggravated felony.” One category of “aggravated felony” is “a crime of violence.”
The man the government sought to deport was convicted for burglary, twice.
Is burglary a “crime of violence”?
There is some argument one could make, if one wanted, that burglary is a “crime of violence.” Historically, it was defined as breaking into a home at night, and treated more severely than other breaking and entry crimes, such as robbing a business or warehouse. That’s because when you’re breaking into a home at night, the odds that there will be law-abiding people present is high, and therefore the chance of violent conflict similarly high.
But I don’t think most burglary statutes now require the dwelling in question to be a “home,” and I don’t think the “night” part is required often, either…
Gorsuch voted in favor of the notion that the law should be reasonably clear and specific enough to alert the reasonably-intelligent average citizen what the law is and what the consequences of breaking it are…
Though that applies to citizens, generally such principles apply to non-citizens too.
AllahPundit points out that the decision relies heavily on a previous ruling striking down a similarly-vague criminal statute (this one, regarding deportation, is civil in nature), a decision written by Antonin Scalia.
I guess people can argue about this either way, but I don’t think anyone should take this as a sign that Gorsuch is secretly one of them. Antonin Scalia would often write surprisingly (surprisingly, for the unschooled) decisions favoring criminals, because he was a stickler about laws saying what they mean and meaning what they say, without lots of room for imagineering by ambitious prosecutors. (He was also pretty adamant on the Constitution similarly meaning what it said, you may have heard.)
I believe that this vote by Gorsuch is in that vein, and I can see how a conservative could vote the way he voted.
But certain NeverTrumpers have taken this as a way to point out what folly it was to elect Trump. It goes like this:
But Gorsuch!
heheheheheh
— John Podhoretz (@jpodhoretz) April 17, 2018
That tweet is still another example of my contention that Twitter tends to bring out the worst in people. There are many things wrong with that tweet, even if you ignore its puerile nature.
The first is the aforementioned point: the vote by Gorsuch is not necessarily a going-over to the liberal side, although he ended up voting with them. People from different camps can agree on a particular point without being joined at the hip ideologically, or even in agreement ideologically.
The second is that one vote does not tell you whether a person was a good pick or a bad pick for SCOTUS justice. I doubt there’s a justice—even the most reliably conservative ones over time—who has not on some occasion, for idiosyncratic reasons, voted differently than the conservative block. Justices on each side (even the liberal one) are not a joined-at-the-hip phalanx in all instances, although it sometimes seems that way (and although some people would like it to be that way).
The third is that even if Gorsuch ends up somewhat more liberal than originally thought (and I don’t think he will, actually), it would not mean that Hillary Clinton’s pick would have been the same or better rather than worse. Her pick would almost certainly have been far far worse.
The fourth is similar to the third—but it posits that, instead of a Hillary Clinton win, another one of the Republican candidates had won the nomination instead of Trump and had then gone on to beat Hillary. If we had a President Rubio, for example, and he got to appoint a SCOTUS justice, would that person have been a better justice than Gorsuch? I see no reason whatsoever to think so.
But certain NeverTrumpers have taken this as a way to point out what folly it was to elect Trump.
neo: Granted, but certain NeverTrumpers, like Podhoretz and Goldberg, have taken unrelenting, daily viciousness from Trumpers that I get it.
A big reason I left the Left was because of the viciousness I received from the Left.
I get along better with Trump’s semi-conservatism but deep down I don’t see that much difference between Trump and Obama as populists, and their pro-Trump and pro-Obama yahoo supporters.
Stealing is stealing. Immigrants know it to be a criminal act every bit as much as American citizens.
It is implicit to the crime of burglary that violence may occur and in it’s commission, the criminal indicates a willingness to engage in violence.
It’s not that the law is too vague, it’s that Gorsuch has abandoned common sense in favor of legal specificity.
“Thou shalt not steal” is understood by even a child. Only the bureaucratic mind thinks that God should have been more ‘specific’.
In his repeated criminality, the defendent has declared himself to be unwilling to live in a law abiding fashion and has voluntarily forfeited his former right to reside in the U.S. It is that premise which lies at the heart of the law.
Geoffrey Britain:
Of course everyone knows that stealing is criminal. And if the legislature wanted to, it could pass a law saying that any non-citizen guilty of stealing should be deported.
Or, it could say that any non-citizen guilty of burglary should be deported. The problem with this law was vagueness.
“The problem with this law was vagueness”
What is vague about a law that states that since the crime of burglary carries a real probability of the possibility of violence and that thus the perpetrator indicates a willingness to engage in violence… that upon conviction, they forfeit their former right to reside in the US?
What exactly is vague about that?
Geoffrey Britain:
As the quote I offered in the post explained, it certainly is possible to argue that the possibility of violence is implicit as part of burglary. That’s your point of view. It’s also possible to say that the opposite can be successfully argued.
The point is that Gorsuch felt the law was too vague to stand. It could certainly be made more specific. The law was not about burglary and “stated” nothing about burglary, it was about crimes of violence and deportation.
Gorsuch’s opinion is also definitely not inconsistent with a conservative point of view, and that point was the subject of my post.
“The third is that even if Gorsuch ends up somewhat more liberal than originally thought (and I don’t think he will, actually), it would not mean that Hillary Clinton’s pick would have been the same or better rather than worse. Her pick would
almostcertainly have been far far worse.”I hope you are a prophet, but we had high expectations for lots of justices that weren’t borne out.
Whether burglary is or is not a crime of violence is an ongoing issue. It really is a question that comes up a lot in the implementation of criminal law. I can tell you for a fact that we’ve gone back and forth on this in Pennsylvania criminal law. Right now, the question comes up because we have a “strikes” law that provides for mandatory sentences if you are convicted of certain serious felonies and if you have prior convictions for certain “crimes of violence.” The only time that burglary convictions count as “crimes of violence” is if you entered a residence (i.e., not a store, or an outbuilding) where someone was present at the time. So, no—it’s not cut and dried as to whether or not burglary is a crime of violence. I fully support the S. Ct’s ruling here, where the relevant statute was not clear.
One of Gorsuch’s points during the confirmation hearings was that the legislature should make competent, clear laws and not depend on the courts to figure it out.
He also said that if you’re a good judge, you will make decisions you don’t like. Preach it!
To me the surprise is that the so-called conservative justices did not vote along with Gorsuch. They had the precedent (Johnson v. United States, 135 S. Ct. 2551 (2015)), and letting statutes be interpreted so that they become vague, let alone tolerating statutes that are vague as drafted, is a bane of conservatives. So, I say shame on the other “conservative” justices.
Off topic: Clinton delenda est.
For what it’s worth, my take when reading the background of the decision was similar to Ms. Neo’s, and with some similar–but not as much–surprise as Mr. Ira. This really is vague, and normally I think that vagueness should be decided in favor of the defendant.
Neo writes: “The short answer is no:”
After reading Paul Mirengoff’s analysis at Powerlineblog, sorry, Neo, the answer is yes. Especially read the dissents by Roberts and Thomas. It is clear to me that Gorsuch is playing to the left-wing crowd in DC trying to prove his independent bona-fides. Sad to see him turned so fast. It usually takes Republican appointees at least a year to start “growing in office.”
As an aside I heard an interview of John Sununu where the nomination of David Souter was brought up. He still stuck up for Boyden Gray who was the head of the committee who selected Souter but admits it was a disaster. I hope Reince Priebus is not forced to admit a similar mistake.
http://thehill.com/homenews/administration/344480-priebus-neil-gorsuch-is-my-greatest-accomplishment-in-the-white-house
skeptic:
No doubt you think Scalia betrayed the right, too, and was cozying up to the left-wing crowd in DC when he opined similarly to Gorsuch. I certainly disagree.
Like my Dad used to tell me, just because some kid does something stupid like jumping off a cliff does not mean you have to do it.
Seriously, you never see the leftist judges reaching across the aisle on highly politically charged issues like illegal entry to the US. That Gorsuch would choose this issue to burnish his reputation with the DC crowd makes me pessimistic as to how strong he will be on other other important issues.
Time will tell and I do agree that SO FAR he has been better than any Hillary or for that matter Jeb but not Ted Cruz appointee.
skeptic:
He is not “reaching across the aisle.” He has a point of view that is in accord with Scalia’s (Scalia’s in the past, of course). And a liberal justice sometimes votes with the conservatives on a particular case (in fact, many SCOTUS decisions on unanimous, but of course those aren’t the big ones ordinarily). Just as an example, we have this instance of Kagan “crossing the aisle.” In general, however, the blocs vote as expected, and I predict that Gorsuch will do likewise and will not turn into the next Souter.
Neo-neocon wrote:
That tweet is still another example of my contention that Twitter tends to bring out the worst in people. There are many things wrong with that tweet, even if you ignore its puerile nature.
It’s not twitter bringing out the worst in Podhoretz. It’s already ‘out’.
While there were certainly people who opposed DJT for serious, principled reasons, a lot of the big-name GOP ‘intellectuals’ and ‘thought leaders’ have never forgiven the voters for their insolence in rejecting the elite GOP consensus.
‘It was supposed to be Jeb, dammit!’
They’ve never gotten over it, and can’t let it go, and it’s turning into something like congealed hatred that’s eating them alive.