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Advice & Consent: Spring 2018 Special

Advice & Consent Spring 2018 Special

We’re baaaaaack! Six months since our holiday special, we return for the newsiness surrounding retirement rumors, how the GOP is handling lower court vacancies, and what the 2018 election, the controversies swirling around the President (referred to as “Don” as frequently as anything else in this pod), and how it all impacts our beloved Supreme Court.

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. With Tim Mooney and the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn!

A Retirement in the Cards?


Rumors abounded all spring that this was the final term for Justice Kennedy, sparking the mother of all confirmation battles. But is Justice Kennedy set to retire? Does he view his replacement through a partisan lens?


The retirement camp



Accomplishments complete(ish)

Desire to have a life after the Court

Desire to be replaced by a GOP POTUS/Senate


The no-retirement camp


He’s a “young 81”

Most powerful man in America?

Biggest accomplishments hang by a thread

Replacement by Don



Probably for self-preservation, I’ve been in the no retirement camp. Or if so, it’s Justice Thomas and that’s only if Ginny thinks Trump’s and/or the Senate Majority are in trouble. Though my thoughts have evolved, and if there’s a vacancy it’s going to be unexpected.


That said, I have to contemplate a Justice Kennedy retirement. I’m unable to applaud or agree with many of his decisions (e.g., Citizens United and it’s progeny) but I do think that his retirement would mean that CJ Robert’s role as a consensus builder and negotiator moves more to the right. Meaning whatever moderation and consensus he has to build to get a majority now shifts even more to the right, especially in areas such as LGBTQ rights and womens health care. And that’s terrifying.


I also think it means there will be more Supreme Court justices who believe in the view that the Administrative agencies lack authority to do things like implement the policies that Congress enacts to protect clean air, water, food safety, etc. Having more justices who believe in this non-mainstream and troubling view spells even further entrenchment of corporate power.


Adam: The effect of one Trump justice cannot be overstated. Working people now have essentially no way to stop employers from stealing their wages due to a complete warping of arbitration law. See http://www.scotusblog.com/2018/05/symposium-for-decades-court-has-built-an-edifice-of-its-own-creation-in-arbitration-cases-its-time-to-tear-it-down-and-rebuild/

More is coming in Janus with the Supreme Court about to reverse another major part of the New Deal, the rule that if a majority of the workplace votes for a union, the union represents that workplace and can get fees from the workers as a result of the representation. This case was about the fees, but it’s hard to see how this doesn’t bleed over to the representation too in the near future.


That is how far right the Court is with Kennedy at its center. If Trump picks another Gorsuch, Roberts is the new center. We are losing equality rights, but we are also losing major parts of the New Deal.


Meanwhile in the Lower Courts…


The pace of filling District and Circuit Court of Appeals seats is breathtaking. Consider the pre-norm-busted system like a train with a few speed dampeners. Ordinary Senate speed (glacial) paired with blue slips and threats or use of the filibuster created a political environment where the consent role of the Senate made for a more deliberative process. Now all of these have been unlocked and we are getting some… interesting nominees, many of whom would never have gotten a sniff at a robe, and certainly wouldn’t have made it past blue slips.


What’s going on?




Lena: 20% of the federal judiciary remains vacant, but despite that Trump has had a record breaking number  – 21 – of his Circuit Court picks confirmed by the Senate Majority. How has this happened? Well, laser-like focus. McConnell has made the courts his singular focus because 1) nothing else seems likely to be able to be done given the nearly equally divided Senate and this is something that he only needs a majority of votes to accomplish, 2) legacy – this is his way to achieve everything he wants to accomplish policy wise (abortion, enhancing corporate power, resistance to gun safety measures) through a seemingly independent branch of gov’t. Yet these are nominees he and others are certain will carry out their mission.


Breaking norms and the process:

  1. Speeding along vetting – which has caused a significant number of omissions in documentation and then Majority who doesn’t seem to care
  2. Scheduling hearings before the ABA Standing Committee on the Federal Judiciary’s review is in – even leading to confirmation of one unanimously Not Qualified rated nominee (Steve Grasz, 8th Cir., Neb.) which didn’t cause the Majority pause, only outrage at the ABA
  3. Doubling Cir Court nominees on the same panel on the same hearing – recently 2 7th Circuit, Illinois nominees were on the same panel
  4. Blue slips
    1. Started with David Stras, 8th Cir., Minn. nominee at the time who lacked support from Sen. Franken – confirmed anyways
      1. Ex. withholding blue slip in a 2 D state
    2. Then with Michael Brennan, 7th Cir., Wis. nominee at the time who lacked support from Sen. Baldwin. She withheld her blue slip because he didn’t properly come through their longstanding Commission with approval and made troubling statements the Commission didn’t know about. This was for a seat held open during nearly the entire Obama Administration because Sen. Johnson refused to submit a blue slip and slowwalked nominees who did successfully go through their Commission. Ironically, Brennan wrote an op-ed years ago supporting Sen. Johnson’s use of the blue slip and noting how vital they are to protect home-state Senators prerogatives
      1. Ex. withholding blue slip in a 1D/1R state
    3. Now with the hearing of Ryan Bounds, 9th Cir., Or. nominee who lacks support from BOTH Senators Merkley and Wyden due to lack of consultation and horrifyingly offensive statements he published as a college student
      1. Ex. withholding BOTH blue slips in a 2 D state
    4. As a reminder, I’m of the strong belief this White House doesn’t care about home state Senators wishes no matter if the state is red, purple or blue. But it’s only D Senators who have tried to stand up against this Administration


Circuit Courts have already been transformed

  • Out of the 13 CIrcuits
    • 6 are evenly split between D-president and R-president appointed judges (1st, 3d, 10th, 11th, D.C., Fed.) vs 0 at the end of Pres. Obama’s term
    • 4 are R-president majority Circuits which is the same as at the end of Pres. Obama’s term BUT are now so by very wide margins
      • 5th – 10 judge margin
      • 6th – 6 judge margin
      • 7th – 8 judge
      • 8th – 10 judges
    • 3 are D-president majority Circuits
      • 2d – 1 judge
      • 4th – 1 judge
      • 9th – 3 judges


The 2018 Election and the Courts


Simply put, this is a big one. And since we all are so good at election speculation (note our perfect record on this pod) we thought we’d chat a bit about what the election means for the future of the federal courts, and possibly for the President himself.




I think future Court vacancies are linked to Don’s remaining tenure in the White House for anyone who is pining for impeachment and removal.


If the Blue Wave   comes and takes the House but not the Senate, the GOP will still have as many as four SCOTUS seat opportunities as a rallying cry for maintaining support of the President through his troubles.


With a GOP majority, I can’t imagine sufficient GOP support for removal (15-20 Republican Senators or so?)… so why would the Dems bother impeaching without a shot at removal? That tends to empower the sitting President.


What if the Senate also flips though?  Don can’t deliver a thing if the Dems go (as they probably should) all Garland Rule (©2016 Mitch McConnell) on him.


That means rank-and-file GOP members of the Senate are in a position where they may have much more to lose supporting a scandal-plagued President than to gain by sticking with him.


If the smoke we see from these investigations end up being evidence of an actual fire, Trump’s inability to get a SCOTUS nom through a Dem Senate might be the thing that chips away at his remaining support – if you see your seat in jeopardy continuing to support Don, and he can’t deliver anything for you, why stay on team tangerine?


Impeachment is — for all practical purposes — a political process, and if Don can’t deliver SCOTUS, the GOP might see advantages in cutting ties and rebuilding rather than go down with the ship.


They did in 1974 and 6 years later they were not only back in power, but stronger than ever. A model for 2019 should circumstances warrant?


By the way I think this is unlikely, but it’s the only scenario I can think of where impeachment has any viable chance of success, again assuming these investigations confirm everything we think has gone down. In the more realistic world… Adam has the scarier alternate theory.


Oh and by the way… if you don’t think the courts matter on the Senate side, just check out Sen. McConnell’s plan to keep trickling votes for judges all election season long to keep Dems in town for votes so they can’t campaign as effectively.




I think the Court is completely linked to the entire reason Don even is in the White House. He has learned that the courts can defeat his initiatives and has been educated on how important his nominations are to seeing that his agenda can be accomplished. He even tried to argue with Leonard Leo about the need to speed district court judges because they’re at the frontline of blocking his unconstitutional policies. But he was convinced that CIrcuit Courts are where they’re having the most impact. And so this is their agenda, and they’re not transparent. They’re telling us what they’re doing and why. And think that the longer they stay in DC the more they’ll appeal to their base that they’re chipping away at Roe, upholding their version of the 2nd Amendment, etc. which plays really well. Also, because there’s a massive number of D Senators running for reelection versus R Senators, it serves to disadvantage the D Senators who 1) haven’t at all captured or prioritized the courts in terms of communicating to their base what’s at stake and what they’re doing and 2) take them out of election mode so they don’t have a chance to host election events, etc.




So, what happens if Ds take back the Senate? There is unresolved fury at how Republicans treated Garland that was put on the back  burner because of the stunner of the 2016 election and the swift confirmation of Gorsuch. But if Dems take over, it will be on the front burner for a lot of activists. Every appellate (whether circuit or Supreme Court) nominee that a Senate controls by Democrats confirms will come with calls for Schumer to be dethroned.


This is complicated by the fact that there will almost certainly always be enough votes to confirm if allowed to come to an up-or-down vote.


Dems also know that, if Schumer does shut down the process, it will be a huge rallying cry for the right. Unlike the left, it is a huge base issue. While activists on the left cared a lot about Garland, it was not something that led to town-hall uprisings on the left or spontaneous protests as ACA repeal and Muslim bans did. On the right, it will be a major line in every speech. It will get tons of applause. It will be something that Trump brings up in debates.


Not to mention that conservatives will use (and misuse) all the traditional levers to put pressure on Democrats: (1) John Roberts year-end report at the end of 2019 will say that vacancies are and Senate inaction are unacceptable (although he didn’t say word one about Garland), (2) The right-wing media will go nuts on the issue, (3) The mainstream media will cover conservative anger and the unprecedentedness of having no circuit court confirmations (NOTE: There was only one circuit court confirmation in Obama’s last two years), (4) Progressives will write opinion pieces that this level of politics is bad for the courts and Dems should confirm nominees.


So, what will Schumer do? Will he be more scared of an uprising by activists or more scared of elite opinion and breaking senatorial precedent? There is slim chance that there will be a grass roots-led uprising, but if Bernie or Warren or someone looking to become president makes it an issue, then Schumer would be scared about this possibility. If those progressive leaders stay silent, expect a bunch of confirmations even if Dems take control.

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