Neil Gorsuch is very much on track for confirmation to the Supreme Court later this week. Unable to paint him as outside the conservative mainstream and rally public opposition, Democrats have been reduced to what is mostly a symbolic filibuster effort. Republicans are expected to simply further roll back the filibuster rules that Democrats already began rolling back in 2013 and install Gorsuch with a majority vote.
So now Democrats are in “Hail Mary” mode.
Late Tuesday night, a pair of reports showed that passages in a book Gorsuch wrote a decade ago bear plenty of resemblances to other works. To see how similar they are, see here:
As Politico's John Bresnahan and Burgess Everett wrote, a number of academics contacted said that Gorsuch was at fault, with their verdicts “ranging from calling it a clear impropriety to mere sloppiness.” BuzzFeed's Chris Geidner, who first reported on the passages, also reported that other parts of the book “contain additional apparent attribution errors.”
The book, “The Future of Assisted Suicide and Euthanasia,” closely mimics the word choice used in a 1984 article in the Indiana Law Journal dealing with Baby Doe, who was born with Down syndrome. Often only a few words are altered between the two.
For example (differences bolded):
GORSUCH'S BOOK: “Down syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation.”
INDIANA LAW JOURNAL: “Down syndrome or ‘Mongolism’ is an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.”
And the next sentence:
GORSUCH'S BOOK: “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.”
INDIANA LAW JOURNAL: “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus. …”
The structures of the passages are in exactly the same order, and the wording is very similar throughout, with some obvious but slight differences. It's pretty apparent that Gorsuch condensed and slightly altered the Indiana Law Journal article. He also did not cite the Indiana Law Journal article itself, but rather the same primary sources that the Indiana Law Journal cited: a court case, books on pediatrics and a newspaper article.
Other examples cited for possible copying don't track as closely. For example, here's a comparison to a 2003 book titled “A Merciful End: The Euthanasia Movement in Modern America,” by Ian Dowbiggin:
GORSUCH'S BOOK: “In 1989 Humphry left his second wife, Ann Wickett, soon after she had undergone surgery for breast cancer. During the divorce, Wickett alleged that when Humphry purported to help her mother commit suicide, the resulting death was not fully consensual.”
DOWBIGGIN: “In 1989 he left his second wife, Ann Wickett, shortly after she had undergone surgery for breast cancer. Their subsequent divorce was made messier by Wickett’s allegations that her mother had not died willingly when Humphry had participated in the suicides [sic] of her own parent.”
Gorsuch's book cited Dowbiggin, but not for this particular passage. Again, Gorsuch cited the same primary sources that the similar passage cited.
It's definitely not nothing. At the very least, it's not something you'd want to do in your own written works for fear of opening yourself up to charges of plagiarism and poor attribution. The comparison to the Indiana Law Journal article is unmistakable.
But you also have to wonder where this has been for the two-plus months since Gorsuch was nominated. Everything Gorsuch has ever written must have been combed through extensively by opposition researchers. And if this is the most damning evidence that Democrats could find to stop Gorsuch's nomination, that's a pretty good microcosm of their efforts to keep him off the high court.
Absent further examples of academic wrongdoing in the nominee's extensive works, it seems a pretty minor offense. At best, Democrats could argue this warrants further research of Gorsuch's writings and a delay.
But it's very unlikely Republicans are going to halt a process that has already begun while waiting for that evidence to arrive. And given that Gorsuch's opponents have had two months to uncover this, that's probably a safe call.