It was such a giftwrapped piece of serendipity for the press that you knew they would be unable to contain themselves. The timing was almost too convenient. A despised President had a reviled court appointee facing his first case, and it was landmark decision.
The state of Arkansas was fast-tracking a number of criminal executions, appeals for which were climbing through the appellate courts. As fate would have it they arrived to the Supreme Court to become the first case presided over by the newly appointed Judge Neil Gorsuch.
The rookie Justice performed as expected, and the media performed in the manner they frequently accuse of Republicans — they “pounced”, as they resorted to “overreach”.
The votes against extending the stay of executions was a five-to-four decision, hewing to expected lines as the five conservative justices prevailed over the four liberal dissenters. Gorsuch was consistently positioned by the media as the “deciding vote”, and thus were eager to cast him (employing evident satisfaction) with bloodlust.
“Supreme Court Justice Neil M. Gorsuch cast his first consequential vote Thursday night, siding with the court’s other four conservatives in denying a stay request from Arkansas death-row inmates facing execution. Hours later, the state executed one of the men, the first lethal injection carried out there since 2005.”
The Huffington Post was just as eager to point out the crimson-colored palms of the new Judge. “Gorsuch’s vote on one of several 11th-hour petitions, in effect, allowed the state of Arkansas to carry out its first execution in nearly 12 years.”
The barely-contained excitement at the chance to demonize the man who is regarded as an improper appointment, placed through a controversial process, is blatant. That zeal however overlooks a detail that never surfaced in any of the lengthy analysis the outlets were providing, while giving extensive background on the court cases of the condemned.
What they all failed to surmise was had Gorsuch not been present the eight-person court would have resulted in a four-to-four split decision. This would have then meant the cases would be sent back to the state where the previous decision would stand. So these executions would have taken place without Gorsuch on the bench.
Lending even further condemnation was the New York Times editorial board, in an editorial gently titled “Neil Gorsuch and the State’s Power to Kill”. The Times served up the subtle pronouncement, “In short, the first significant decision by Justice Gorsuch, who was sworn in to office less than two weeks ago, was the most consequential any justice can make — to approve a man’s killing by the state.”
In his dissent, Justice Stephen Breyer stated he was bothered by the suddenness of of the scheduling of men on death row for years. Arkansas was stepping up the schedule due to the impending expiration of the drugs used for their lethal injection. He asked, “Why these eight? Why now?” However he cites no precedent case law to support his decision. He merely did not like it.
And this is was truly rankles the NY Times.
The three more liberal justices agreed that the stay should have been granted, as they regularly do in such cases, just as the conservative justices regularly vote the other way.That 4-to-4 split effectively gave the deciding vote over Mr. Lee’s life to Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland.
And there it is. The editors could not resist invoking the name of a justice so many on the left declare was ordained to be the next SCOTUS judge, merely because President Obama nominated him, yet had his seat “stolen” by the GOP. This ignores that tactics like a filibuster were not used, but a GOP majority in the Senate had the power to not bring Garland up for a confirmation vote. Also ignored: The SCOTUS has not always had a nine justice bench. It is not a Constitutional mandate, and that ninth seat was a creation of Congress. They have the power to eliminate it as well and it could have remained vacant.
The NY Times becomes as outraged as the petulant protesters we have seen since the Trump election. “Neil Gorsuch held the power of life and death in his hands Thursday night. His choice led to Ledell Lee’s execution, and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.”
What Neil Gorsuch did was voting to sustain the laws in Arkansas. He determined there was nothing unconstitutional to justify overriding the Arkansas statutes. Look at how the press reacts to a man voting with the laws, and the Constitution, in mind. Rather revealing they are losing their own minds as a result.