Wednesday, February 01, 2017

The Gorsuch nomination

I was asked by someone from the tax press to give my thoughts on Gorsuch as a Supreme Court nominee, so I looked briefly into the man's record and sent the following response:

Purely from a tax standpoint, Gorsuch appears to be a mixed bag. I have more sympathy in principle than he appears to have for using the dormant commerce clause to restrain discrimination against interstate commerce, but the excerpts I’ve read from his concurring opinion in Direct Marketing Association v. Brohl appear to be intelligent and thoughtful. And dormant commerce clause jurisprudence is a mess anyway; it’s also unclear whether and to what extent it has a positive in terrorem effect that restrains bad state legislation.

The dormant commerce clause also doesn’t empower courts to address the opposite problem from discrimination against interstate commerce, which is engaging in tax competition in ways that (as a policy matter) ought to be restrained at the national level. But the question of when state-level tax competition is good versus bad  might be too hard for the courts anyway, unless there was a well-tailored statutory hook for addressing it.

I don’t like the fact that, according to Steve Johnson as quoted in the taxprof blog, Gorsuch “isn’t big on legislative history or policy intent, and … tends to find statutes more clear than others might.”  It’s my view that Treasury regulations have been tending recently to receive too little judicial deference, not too much, so his reputed dislike for the Chevron doctrine might have bad effects (by my lights) in the tax area, and perhaps elsewhere, too.

Looking more broadly, I presume that Gorsuch will be confirmed, one way or another, assuming that the Senate Republicans are willing to blow up the filibuster if they need to. In terms of whether I’d be glad or not that it’s Gorsuch rather than someone else, the key question, to me, is whether or not he is intellectually honest and consistent. I hope so, but don’t know enough about him to say. In my view, Justice Scalia, by the end of his career, was exceptionally intellectually dishonest. He would vote in almost all cases in favor of right-wing or Republican causes, wholly without regard to his supposed jurisprudential principles. (This of course made his rhetorical self-righteousness and relentless self-congratulation all the more stomach-turning.) He became the sort of person who seemed to believe that Democratic presidents should have more narrowly defined powers than Republican presidents.  Given the current administration, I can only hope that at least one or two of the five Republicans on the court (assuming Gorsuch is confirmed) will be better than that.

As a political matter, my own personal belief is that Democrats should not only vote against the nomination, but force Republicans to end the filibuster. But they should be clear that they respect Gorsuch personally (assuming that his full record merits this, which appears to be likely), and that they are responding to the inappropriateness of what happened last year to the Garland appointment, as well as to eight years of broader Republican legislative obstructionism.

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