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Advice & Consent 2017 Holiday Special

Six months into our hiatus, we return just in time for your Thanksgiving dinner conversation! How about an update on the Trump administration, the GOP Congress and how overturning the norms of the judicial selection process is impacting everything?


Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn!

Note from Tim: I realize after the fact that I conflated Bush v. Gore and Citizens United when I mentioned the unpublished Souter dissent. We were chatting about the former and I mentioned the latter. TL;DR: I screwed up. Mea culpa.

Lower court nominees that are unqualified and appointed based on youth and ideology

Lena:  First, a quick reminder of how we got here. Senate Majority not only held open and stole the Supreme Court seat that Chief Judge Merrick Garland (D.C. Cir.) was nominated for, but also more than 100 lower court vacancies. Indeed, 54 of President Obama’s nominations expired. Only a few were re-nominated by President Trump.

Right now, there are 155 current and known future vacancies (138 current, 17 future) and 63 judicial emergencies.

For a quick review/comparison of how the Trump Administration compares with this point in President Obama’s first year:


Article III Supreme, Circuit, and District Court Confirmations and Nominees Pending

as of November 17 in the First Year of Trump & Obama Administrations

Supreme Court


Circuit Court


District Court






Trump (2017) 1



Thapar (6th Cir., Ky.)

-South Asian

Bush (6th Cir., Ky.)

Newsom (11th Cir., Ala.)

Erikson (8th Cir., N.D.)

Barrett (7th Cir., Ind.)


Larsen (6th Cir., Mich.)


Eid (10th Cir., Colo.)


Bibas (3d Cir., Pa.)


Kelly (D.D.C.)

Nye (D. Idaho)

Palk (W.D. Okla.)

McFadden (D.D.C.)

Coggins (D.S.C.)

14 59
Obama (2009) 1




Lynch (2d Cir., N.Y.)

Davis (4th Cir., Md.)



Viken (D.S.D.)

Lange (D.S.D.)

Berger (S.D.W.V.)

-Black Woman

Honeywell (M.D. Fla.)

-Black Woman

7 27


Trends in Types of Nominees:




Constitutional Norms Destroyed to Pave Way for Speedy Nominations and Confirmations

  • Lack of actual consultation with Senators prior to the nomination of nominees
  • Subpar vetting, resulting in numerous omissions and information missing
  • Stacking of Committee Hearings: on 11/29, it will be the fourth hearing over objections where two Circuit Court nominees (who are controversial) will sit on the same panel in the same hearing (read: minimal time for public questioning of nominees). In the entire Obama Administration, that happened only 3 times with consent of the Minority Party.
  • Scheduling hearings prior to release of the ABA rating.


Ending blue slips to get more judges through quickly


ABA ratings


Bork got minority Not Qualified rating: http://www.nytimes.com/1987/09/10/us/aba-panel-gives-bork-a-top-rating-but-vote-is-split.html?pagewanted=all


Rapid fire:


New SCOTUS shortlist

A quick review of where are the SCOTUS shortlisters now?

Note: Trump’s 2016 Campaign & November 27, 2017 (green = Nov. 27 additions; red = not on Nov. 27 list)

Moving On Up: Confirmed

  1. Justice Neil Gorsuch, 10th Cir., Colo.: Confirmed to U.S. Supreme Court
  2. Judge Amul Thapar, E.D. Ky.: Confirmed to 6th Cir., Ky.
  3. Judge Allison Eid, Colorado Supreme Court: Confirmed to 10th Cir., Colo. seat vacated by Justice Gorsuch’s elevation
  4. Judge Joan Larsen, Michigan Supreme Court: Confirmed to 6th Cir., Mich.
  5. Judge Amy Coney Barrett, Notre Dame Law Professor: Confirmed to the 7th Cir., Ind.
  6. Judge Kevin Newsom, Former Alabama Attorney General: Confirmed to the 11th Cir., Ala.

Nominated & Pending

  1. Justice David Stras, Minnesota Supreme Court: Nominated to 8th Cir., Minn.
  2. Justice Don Willett, Texas Supreme Court: Nominated to 5th Cir., Tex.

Still Where They Were

  1. Justice Keith Blackwell, Georgia Supreme Court
  2. Justice Charles Canady, Florida Supreme Court
  3. Judge Steven Colloton, 8th Cir., Iowa
  4. Senator Ted Cruz, U.S. Senator (Tex.)
  5. Justice Britt Grant, Georgia Supreme Court
  6. Judge Raymond Gruender, 8th Cir., Mo.
  7. Judge Thomas Hardiman, 3d., Cir., Pa.
  8. Judge Brett Kavanaugh, D.C. Cir.
  9. Judge Raymond Kethledge, 6th Cir., Mich.
  10. Senator Mike Lee, U.S. Senator, Utah
  11. Justice Thomas Lee, Utah Supreme Court
  12. Justice Edward Mansfield, Iowa Supreme Court
  13. Judge Federico Moreno, S.D. Fla.
  14. Judge William Pryor, 11th Cir., Ala.
  15. Judge Margaret Ryan, U.S. Ct. Apps. Armed Services
  16. Judge Jeffrey Sutton, 6th Cir., Ohio
  17. Judge Diane Sykes, 7th Cir., Wis.
  18. Judge Tim Tymkovich, 10th Cir., Colo.
  19. Justice Robert Young, Michigan Supreme Court
  20. Justice Patrick Wyrick, Supreme Court of Oklahoma


Justice Asterisk is everything we thought he’d be


Given our new (and welcome) shift in attitude toward sexual harassment in the workplace, should Justice Thomas’ treatment of Anita Hill be revisited?


Lena: Yes. We should have all believed Anita Hill. The legal profession, like all professions, has some unique characteristics that entrench power dynamics in a way that often makes it incredibly difficult to speak out. Can look at this with nominations in that people worry that if someone becomes a judge, especially for life, that person will likely impact their profession and potential outcomes for clients. The incentive to be quiet is really strong, and to layer on top of that overarching disbelief can be crushing for women in the profession. We need more women, more people of color on the bench, so communities are represented but also so there can be better employment and mentorship opportunities especially for younger lawyers and students.


If Alabama decides to choose a Democrat for Senate over… other alternatives… do the Dems have a shot at the Senate in 18?