The ragtag gang of the usual suspects returns “one last time” (for this season anyway) to discuss the new Justice, the politics of the nomination process and more. For the first time all five member of the ragtag gang of the usual suspects alumni association are on the same pod… enjoy, and thank you for listening. We’re like cicadas on this subject, so if there’s a new SCOTUS nomination, go over to scotuscast.com and you may well find a new season of the pod…
Nuclear option and the asterisked Associate Justice
Yadda yadda yadda, he got confirmed. And the seat is stolen. And he always should be referred to as Justice Gorsuch*
*Seat stolen by GOP, 2016-2017.
Before reactions… a toast to Sen. Merkley for his voice filibuster this week. All night long, y’all.
Reaction to the filibuster, the nuclear explosion and Justice Asterisk?
Adam: I think filibusters are dumb. The Senate’s filibuster history is a total accident. The VP one day just up and ruled the previous question motion out of order because there was no reason to have a rule cutting off debate when there was such a tiny body. Then at some point, when the Senate got larger, people realized that unlimited debate could stop action on things they didn’t like. At one point, we did have people like Daniel Webster and Henry Clay in the Senate, but that isn’t the way it’s been for most of our history. It’s been more like people like Mitch McConnell and Ted Cruz, orators so grating, you have turn them off.
That said, what’s worse is changing norms and rules right and left to steal a seat and then fill that seat.
And what’s even worse is people who don’t understand the rules. Hey, Senate Dems, an appeal of the ruling of the chair is debatable and therefore filibusterable.
Lena: I love deliberative representative democracy. Legislation should take time because it should be done well. Nominations should be thoughtful, and that whole Article II Section 2 Advice and Consent piece seems to indicate is important.
I appreciate that this is all politics and results of elections. And I don’t think elections should be viewed as a winner takes all. I’m weary of the tyranny of the majority. And so, I appreciate tools available to the minority party so that they, too, can have a voice. What I feel about the filibuster is probably some idealized version that politicians would take to the floor and espouse their views. They could signal issues with a debate, and people, particularly other politicians would listen. The filibuster is therefore one of the tools I thought was important. However, the way that it has been used is not what what I believe it was intended to do. It’s become ineffective.
For what happened, I felt that this change shouldn’t be called nuclear because let’s not desensitize ourselves. It’s a change in rules. But I do think this move is horrible. This is what happened b/c this White House and Senate majority are in the winner-takes-all mode.
To get to this point, it’s been political and everyone is blaming the other party. And all under false equivalencies (as we’ve discussed previously) and a sense of inevitability (McConnell made this clear long ago).
In the Executive Business meeting on Monday and in most press statement, Rs have been lamenting “having to make this change” it didn’t seem like anyone could persuade McConnell. And maybe they didn’t want to. McConnell high 5ed Cornyn after the change and then McConnell all thumbs up.
Disappointed: Schumer et al should have used the 30 hours post cloture to debate this nomination. At a minimum, make speeches and use the tools and time.
Justice Asterisk? He’ll be forever known as the litmus tested justice. I hope that instills in him an even further appreciation for the need to be independent. To check himself as he hears cases and writes opinions. But I’m not hopeful based on his record. Sure, there will be times people will tell me “see, not so bad.” But I’m starting to believe Trump and people’s past record that got them to the point where folks say “you need this guy b/c he’ll overturn Roe and the NRA’s version of the Second Amendment”
[Tim: Rick Hasen Q to his Twitter followers: When will Justice Gorsuch* first rule in a way contrary to conservatives? My answer: Never.]
Tim: I’ve always felt ambivalent about the filibuster. I mentioned it on episode 018, aka the “let’s talk everyone off the ledge” episode of the pod. Also known as “Tim slaps an explicit tag on the pod.”
I understand why the Dems filibustered and I understand why the GOP went nuclear, even if I still bristle mightily at the larceny of the seat.
Other non-SCOTUS-focused media seemed surprised there was so little energy behind the two sides, even if there was high antipathy. I think the reason was very clear… by about 10pm ET on November 8th… before the final votes were cast, but right about when it was clear Trump was going to win… today’s outcome was preordained. The identity of Justice Asterisk was unknown, but the dance card was set. Perhaps that’s the saddest part of all of this… the Court may one day revert to being above politics, but I can’t forsee a day in my lifetime when it won’t be. Too many burned bridges.
I question what the new paradigm is… It may be seats on the Court are only filled when the same party holds the Senate and the White House. That means long-term vacancies during divided government. It means POTUS and Senate campaigns with SCOTUS shortlists. It seems to be the inevitable outcome here, but I hope I’m wrong.
Cases coming before SCOTUS – WaPo
Voting restrictions in NC
Whether a bakery can refuse a cake to a gay couple
Whether self-protection outside the home means 2nd Amendment scrutiny covers some carry laws
More norm breaking – rumors of dropping blue slips for lower court judges
- Lower courts: over 130 lower court vacancies already # of judgeships likely to increase
- Blue slips: selection vs. confirmation
- Changing blue slip rules could be pretty bad for a number of reasons:
- Who carries the water?
- Who will further be annoyed?
- Advice and consent changed even more
Adam: Before I started working on judicial nominees, I had no idea the extent to which home-state senators were involved in judge-picking. When the president and both home-state senators are from the same party, the senators basically pick the trial court judges and sometimes the court of appeals judges. When at least one senator is from a different party, they basically have a veto on the court picks as long as either their party controls the Senate or they don’t abuse it.
There are not a large number of examples of Judiciary Committee chairmen holding hearings and votes without receiving blue slips from both Senate even though they have officially left themselves room to ignore the blue slips. Orrin Hatch did it for 4 nominees in 2004 under heavy pressure from the rest of his caucus, but he wasn’t happy about it. I get the sense that Grassley really doesn’t give a darn about the norms of the Senate (hi, ex-Sen. Norm Coleman) and McConnell certainly doesn’t. And Trump assuredly doesn’t. I think it’s over.
Tim: Bottom line: this is court packing, pure and simple. And court packing by eliminating a norm that assured moderation in states with split party representation. Norms aren’t laws and the GOP knows it can change these norms without getting nailed on it. They did it for Garland, and they’re doing it for lower court judges should this blue slip rumor be true.
The modern nomination process has produced a judiciary as political as the other branches
Agree or disagree?
Tim: The Court has been ideologically divided along different lines for a long time… back to Marbury days. But since the Bork nomination, the politics of nominations has politicized the judiciary in a discomfiting way. The only ameliorating thing is the lifetime tenure and that may matter less over time. It’s time we acknowledged this in the nomination process and end the nomination “rules” fictions so we can properly assess these nominees through the very real ideological/political lens rather than pretend otherwise.
Adam: I think it’s an inevitable result of the parties evolving from ideologically heterogeneous to ideologically homogeneous. The reason why there were so many “mistakes” liberal justices appointed by Republicans and one conservative appointed by a Democrat, Byron White, was at least in part because presidents had to appease different ideological wings of their own party. (It might even explain Souter since George H.W. Bush, his chief of staff who pushed for Souter, John Sununu, and Souter himself came from the moderate New England wing of the GOP, of which Susan Collins is the hardy surviving member.) Now that the most liberal Republican in each house of Congress is more conservative than the most conservative Democratic member, there is a huge downside and no upside to a Republican choosing an ideological liberal or a Democrat choosing an ideological conservative.
So we therefore have a Supreme Court where, like Congress, the most liberal Republican appointee, Kennedy, is more conservative than the most conservative Democratic appointee (either Breyer or Kagan, depending on your perspective). I do think that life tenure, the robes, and the common law needs to base judicial decisions in reason and precedent does still remove the judiciary from politics in a way that Congress is never removed. Example: conservative Kentucky senator (and awesome pitcher) Jim Bunning installed his own son, David Bunning, as a district court judge. Seems like he would just be a politician in judicial robes Yet Bunning was the one to enforce the Obergefell decision and hold Kentucky Rowan County official Kim Davis in contempt.
Lena: Almost: In our lifetime, we haven’t had a majority of Supreme Court justices who probably are in line with where we tend to be. But the perception hasn’t been there and that’s pretty deliberate. There’s been a movement afoot for decades to try to make sure there would be more reliable justices who aren’t disappointments (Chief Justice Roberts is still invoked in angry rants by Rs). This seems to be the trend.
Perception is perhaps even more important. The process for how judges get to the bench = political. But our system of government and legitimizing our justice system depends on people believing the system is independent and fair. The courthouse doors have to be open to everyone. These confirmation processes can be helpful in terms of raising awareness and educating people about the courts. But the R said/did vs D said/did doesn’t help.
Litmus tests and campaigning with a list of potential nominees also serves only to politicize this process.
Some ways to depoliticize: timelines, terms
Programming note: Season finale in a few weeks
We have surprises and special guests. No peeking.
The Senate Judiciary Committee voted on a party line vote to refer Judge Gorsuch to the full Senate. Most whip counts show 41 Senators who intend to vote no on cloture. We’re probably going nuclear. So perhaps its time for listener mail? Also, three principled reasons to oppose Judge Gorsuch as Associate Justice.
The Judiciary Committee votes
Yadda yadda yadda, Gorsuch got reported out of committee on party lines
The votes for cloture aren’t there
But are there non-nuclear options?
Can the Senate’s “2 speech rule” can be used to limit debate without going nuclear?
Adam pulls out a mic to drop on The Federalist
There are reasons why the 2 speech rule hasn’t been used to cut off debate before (and note to The Federalist, the Civil RIghts Act of 1964 passed because the Senate invoked cloture, not because of the Two-Speech Rule–I think the author knows that and uses the weasel words that the 2-speech rule was a “key component” to passing the act rather than saying it was what ended the filibuster. Here’s a description of the filibuster vote: https://www.senate.gov/artandhistory/history/minute/Civil_Rights_Filibuster_Ended.htm.
First, let’s say that 10 Dems burn their first speech before realizing this is the Dem strategy. Well, given that there have to be at least 41 senators to sustain a filibuster, that still leaves 31 senators with 2 speeches and 10 more with one speech, meaning there are 72 speeches left to go before the Senate can confirm anyone, and those 72 speeches will then take a long time. And the Senate cannot move onto other business while the filibuster is pending (absent unanimous consent). Also, Democrats have the ability to force Republicans to come to the Senate floor in the middle of the night to vote on motions to adjourn (which can be decided by less than a quorum and, if they happened to be successful, restart the 2-speech rule because a new legislative day starts).
Second, all the Senate needs to do to get around the 2-speech rule is start a round of debate on a new issue. Therefore, Republicans would have to be extremely vigilant and immediately table motions to postpone indefinitely,To postpone to a day certain, or to commit, each of which can be propounded while another question is pending and each of which would create a new subject if debate started on the motion and therefore would allow senators who had already spoken twice on Gorsuch to speak again. They would also have to make sure they didn’t accidentally start a new debate topic by, for instance, beginning a debate on whether a senator’s remarks violated the rules of decorum, as they did with Sen. Warren, because once again, this would be a new topic of debate.
All that is to say that I once read through the Senate rules, hit on Rule XIX and said, “hey, maybe there is another way to stop a filibuster.” But then I realized that I wasn’t the first young D.C. activist to read the Senate rules, so maybe it was a bit more complicated. Since then, I’ve both studied the two-speech rule and asked people who worked in the Senate about it. Which leads me to my answer: That’s not the way anyone will cut off the Gorsuch debate.
We got mail
A thoughtful email from a conservative (!) listener prompts our response.
Hello, to begin with I want to thank you for this very informative podcast. Everyone of the “gang” seems to have good knowledge of the issues relevant to the Supreme Court and history of the Court. I enjoy the chats and I always learn something from each episode.
Being a conservative, for the most part I’m not bothered by the clear and strong liberal leaning of the panel. I often agree with your criticism against the Republican party and even when I disagree I understand where you’re coming from.
I do want to mention a couple of things that I think the panel missed because of their liberal leaning. These are my opinions.
1) It is not reasonable to filibuster Gorsuch on merit grounds. Given the support he has received from his fellow judges and lawyers, it’s not reasonable to doubt his merit or mainstream status. If he is not mainstream, the word has lost its meaning. (I understand the desire to filibuster to make a political statement.)
Tim: Not sure we agree on the meaning of mainstream in this context. I would propose Gorsuch is part of judicial movement conservatism that is not mainstream, which can be reasonably disagreed with and therefore he may be reasonably opposed. We throw around terms like “mainstream” and “qualified” and often don’t define these words the same way. I think the three of us agree it’s perfectly reasonable to support or oppose a nominee based on their judicial philosophy, even if they have impeccable education and professional credentials. You can be a likeable person, raise a good family, have loads of lawyers say nice things about you and may still be reasonably opposed on the merits of your judicial philosophy. And that goes for everyone, not just Judge Gorsuch.
Lena: Agree on not agreeing with the meaning of mainstream. And that’s probably the rub. Maybe he’d be mainstream a long time ago but a man who can’t say Griswold is rightly decided and somehow says he can’t imagine a state limiting access to contraception (even though he did wish to limit access to contraception or at least allow corporate employers to do so) doesn’t fit my definition of mainstream.
Admittingly, I don’t expect someone I would embrace fully on the bench. But someone I can respect because of how they get there is a really terrific start. I can’t get there with Gorsuch.
Adam: You can’t judge by a nominee’s supporters. There is a whole game out there of people trying to get better positions in DC some day (or just being part of the old boy’s network). E.g., Estrada’s support of Kagan.
2) Similarly, it is utterly un-reasonable if Republicans voted down Garland in an up-or-down vote. I think Lena mentioned that she would be okay with it. I think she was not being totally honest. Garland absolutely should have been confirmed in an up-or-down vote.
Tim: Lena is very honest, but thanks. Had Senate Republicans taken the political “risk” of opposing Garland because of a disagreement over judicial philosophy, that would have been preferable to what happened. However, Republicans calculated they could avoid this political by declaring SCOTUS nominating season over with no basis in law or fact. I believe the technical term for this is “bullshit.” (Sounds like we agree on that). Had the GOP Senate followed norms and voted Garland down, I’m sure we wouldn’t have agreed with the outcome, but we would have been much more “ok” with things compared to what went down. Which was, again, bullshit.
Lena: Yup. Pretty much really telling the truth there. Sure, I would’ve hollered about how horrible he was treated if voted down, but would rather he be voted down and we get ourselves a new nominee (something totally possible when the Rs have the majority, BTW) so we can at some point get to this.
I’m particular bent out of shape because I keep hearing that Ds have and/or would’ve done this and have advocated for it too. But I just don’t see that 1) that’s the case (Kennedy in 1988, an election year; Bork getting a hearing and a vote) or 2) it’s true. I think the minimization of “this is just politics” is really harmful.
3) It is often said that Garland is the most qualified supreme court nominee ever. What I find interesting is that if that’s the case, why didn’t Obama appoint him for the (not one, but) two vacancies he filled earlier? Do you really think Kagan is more qualified than Garland? I suspect it’s your liberal leaning that prevents you from discussing this.
Tim: I think I respectfully reject the premise of the comment. An observation in response: Conservatives seem to have fealty to identifying “the” (meaning singular) “best” person who should always get the nod for anything. Life – and by extension SCOTUS noms – is so much more a shades of gray thing. There are a limited number of people who are qualified to serve, but it’s a pool, not an ordinated list. A timely analogy is it’s more like the NCAA tournament. Does the #1 seed of the tournament always end up #1? Ask Villanova… they’d say, no! But Gonzaga and Carolina certainly qualified to get in and one will be crowned national champion tonight despite not being “the” #1 team. Likewise, one person’s “best” candidate may not get the nod, but someone who is qualified does. Politics, timing, etc. all weigh in. So if someone says Garland was somehow more qualified than Kagan or Sotomayor, (a) that is far from a universal opinion, and (b) who cares so long as the three of them were qualified? It’s the President’s role to suss out the pool and choose a name. The Senate takes it from there.
Adam: My real answer: The context is that we’re living in a time where, absent a desire to compromise, it makes no sense for either liberals or conservatives to appoint older people who stand a greater chance of being replaced by a POTUS with the other philosophy, so age has to be a factor in qualification. Garland is 8 years older, and therefore not as qualified on that measure.
Gotcha answer: Kagan was nominated to the DC Circuit by Clinton. If Rs hadn’t refused to give her even a hearing (sound familiar), she’d have been pretty qualified. Being blocked by Rs, she did pretty well for qualifications: Harvard Law dean and SG. If Obama was to pass her over for not being a judge, it would mean eliminating a very qualified person because of GOP malfeasance, which seems wrong.
Complicated answer: Picking people on qualifications alone isn’t the best idea. Look at Taft: prosecutor, private practice, territorial governor, SG, AG, state trial court judge, federal appellate judge, president of the United States, for heaven’s sake. Beats Garland by quite a bit. But few list him as a great justice. Beyond a certain point, qualifications alone don’t really make for a better justice
Lena: I think there are other aspects and qualities beyond sterling credentials. Questions a PResident must ask himself or herself or whichever organizations they outsource it to. What would the Court benefit from? This is when things like age, ideology, professional and demographic diversity is important. And I can absolutely see how and why President Obama may not have prioritized a moderate white man at that point in his presidency.
There are many reasons someone gets the nod as Tim says. Kagan very well qualified. May not have served on the bench (for reasons Adam noted), but that can be an asset. As can having someone who was in the legislature. Also, a-okay if we go with a nominee who didn’t go to an Ivy League school.
I think Garland got the nod last year because Rs supported him and he wanted to show he was coming to the table with a nominee they could accept; someone who could get 60 votes. But they wouldn’t entertain this.
Tim: This was a really thoughtful email and we appreciate it… I think my favorite aspect was when the writer said we’ve been able to convey where we’re coming from even when he disagrees with the point. That’s kind of the north star for this show, so thanks for listening.
Three principled reasons to oppose Judge Gorsuch as Associate Justice NO ORDINARY CONSERVATIVE
Gorsuch is a judicial “movement” conservative that has been an active force in political and legal shifts away from settled areas of law. The aim of Gorsuch and fellow members of The Federalist Society is no less than a complete dismantling of norms and laws that produced important holdings for the last 50+ years (sometimes more). Make no mistake: his nomination isn’t intended as a replacement of Scalia, it’s an enhancement.
Paradoxically, we don’t know enough about his aims and intentions either. The modern stance of nominees before the committee and the American public is to clam up on any topic likely to elucidate even a glimmer of an idea of their stance on important topics of the day. This opacity isn’t limited to Republican nominees… it was a feature of nominees by Presidents Clinton and Obama as well.
It’s almost a cliche by now that this seat was “stolen” by Republican members of the US Senate. While we’ve noted before on the pod that the intentional withholding of the Senate advice and consent process of Merrick Garland by Republican leaders was not per se unconstitutional, it certainly violated the norms of the US Senate, and — perhaps more importantly — the will of each and every Obama voter in the 2012 election. Observers may laud the demonstrations following the election of President Trump, but they should also cast a disdainful look at the failure to do so during a shameful quiet period in the spring of 2016.
PRESIDENT UNDER FIRE
The questions surrounding the link between confirmed Russian meddling in the 2016 Presidential election and the campaign itself undermines the legitimacy of the sitting President. Although there is no evidence that the election results themselves are questionable, the possibility that a member of the President’s campaign — or even the President himself — aided in the interference of our election process undermines the moral authority for this President to make any appointments that could outlive his term of office until those questions are investigated and answered by an independent authority.
A little nuance to #1: the lack of answers which I think made Judge Gorsuch hard to take seriously and trust. (e.g., QFRs) And the “Ginsburg rule” is not a thing.
This is a lifetime appointment. This is really serious.
This is precisely what McConnell wanted. And I think he wanted it because he cares about his party (and corporate influence that the Court unleashed in Citizens United) and does so at all costs. To date, he seems to evade any backlash and isn’t held accountable.
Tim: Congratulations Mitch McConnell. Your legacy is just about cemented. You’ll get drinks bought for you in the back room of cigar smoke-filled clubs, with slaps on the back and knowing smiles from old dudes for for the rest of your life. You win. Oh… but maybe not. Because a lot of people really know what went down beyond the likely confirmation of someone who shouldn’t be there this round. Yes, this was a game of political brinksmanship that you won, but the long game and the judgement of history counts for something. I hope you don’t think your legacy is a reflection of those drinks and backslaps. It’s far different, and far more embarrassing for its political crassness in the face of institutions far, far greater
The Senate Judiciary Committee hearings have concluded, and we’re now counting votes. What’s the ragtag gang of the usual suspects (ha, that’s “RGOTUS”) political assessment? We’re less than a week away from the committee vote and less than two from the promised floor vote.
Direct download: Advice & Consent 29: A Hearing Wrap-up + a Political Assessment (mp3)
The RGOTUS this week
Tim bumps into Sen. Wyden at the airport and chats about SCOTUS at the departures level at PDX (pro-tip: that’s the spot to get picked up when in the Land of Sunshine and BunniesTM). Spoiler alert: he’s opposing Gorsuch. Lena goes on another law-talky podcast. Adam pillories one of the worst op-eds in NYT history.
A few minutes of a Lena solo (eat your heart out Neil Peart!)
- Republicans need to decide if they’re willing to go nuclear to put Neil Gorsuch on the Court.
- Are any Rs not up for this fight, but also willing to publicly side with Ds and against the vast majority of the R electorate?
- Do any of their names rhyme with Skritch Buconnell?
- Democrats need to decide if opposition is “worth it” enough to burn the filibuster now, even if it is easily circumvented by the nuclear option.
- Do red state Ds up for reelection perceive a threat to their chances if they oppose?
- Do D’s generally feel pressure to oppose from the increasingly active base?
Given that one of the main ways that this seemingly foregone conclusion of cloture vote fails, nuclear option invoked, Gorsuch confirmed by majority vote will be derailed is by a last-minute deal between Dems and Rs to preserve the filibuster for a future nominee but not use it on Gorsuch, I want to talk about the last time such a deal happened.
In 2001-02, Democrats had control of the Senate and dealt with a slew of some of the most out-of-the-mainstream circuit court nominees, allowing several through but blocking 2 in the Judiciary Committee. Dems lost their majority in the ‘02 election, and decided to filibuster the nominees they had blocked as well as several other nominees. Fortuitously, at the same time, Robert Caro published Master of the Senate, third of the fourth in his Years of Lyndon Johnson series, which detailed the passage of the Civil Rights Act of 1957 with LBJ as Senate Majority Leader. No civil rights bill had been passed since 1875 and the Eisenhower administration was trying to woo African Americans back to their traditional home in the Republican Party, which they had been leaving as they moved north and after Truman integrated the army and Ds put a civil rights plank in their platform in ‘48 and the administration set its sights on passing a civil rights bill. Caro described a trick to get around the filibuster by having the VP, the president of the Senate, Nixon at the time, declare that the filibuster was unconstitutional and then have a majority of the Senate agree with that ruling. LBJ eventually defused this action and passed the bill with a large majority of both Ds voting for it, but Trent Lott, who was almost the majority leader in 2003, but had to step aside after praising Strom Thurmond’s 1948 segregationist run for the president, said that using this method to get around the filibuster would work, but it would be the “nuclear option” because it would blow up the Senate. Dems did not heed Lott, and filibustered more than 10 nominees.
In the 2004, Rs expanded their majority from 51 to 55 and immediately suggested that they would go nuclear if Democrats filibustered again. This was particularly important because Rehnquist had been diagnosed with cancer and a SCOTUS vacancy was likely. The Senate spent the first few months confirming less controversial nominees but ran out of nominees to confirm by May at which point then-Senate Majority Leader Bill Frist scheduled a confirmation vote on one of the previously filibustered nominees. Both sides were lobbying very hard, and it became clear that there were 49 Republican senators in favor of the nuclear option, and Arlen Specter (a Republican at them time) was the only one undeclared. Democrats were pretty sure that Specter–who was Judiciary Committee chairman at the time and would lose the seat if he went against the rest of his caucus–would vote for the nuclear option if the vote were called. So 14 senators, 7 Rs and 7 Ds came together to say that they would not vote for the nuclear option (meaning there were less than 50 votes for the nuclear option) and would not vote to filibuster a nominee (meaning any filibuster vote would fail) unless the group (which dubbed itself the Gang of 14) came to an agreement that there were extraordinary circumstances meriting a filibuster.
A few of Bush’s nominees did fall by the wayside, although some were definitely not due to the deal and some were only questionably due to the deal. The ones that failed were Miguel Estrada for the D.C. Circuit, Terry Boyle for the 4th Circuit, Charles Pickering for the 5th Circuit, Henry Saad for the 6th Circuit and William Myers and Carolyn Kuhl for the Ninth Circuit. The ones that went through directly due to the deal were William Pryor for the 11th Circuit, Janice Rogers Brown for the DC Circuit, and Priscilla Owen for the 5th Circuit.
Now, everyone knew that the Rs on the Gang of 14 would never agree that there were extraordinary circumstances, so that the filibuster was gone. But the thought was that Ds had no leverage, and the best they could do was keep the filibuster alive (although on life support) for another day. Now that this other day has come, with Republicans stealing a Supreme Court seat, I don’t see Democrats thinking that if they give up on the filibuster here, they will ever be able to use the filibuster at a future time when there are extreme circumstances.
Rs inclined to oppose (e.g. Flake, Murkowski, Collins, Graham, Heller) but I think McConnell will decide and everyone will fall in line. But they’ll be blaming the Democrats for causing this. The other option, however, is that they reject the nomination and come back with someone who is more moderate.
Some Ds are worried but have a few factors: 1) inevitability, 2) energizing the base. Some Ds think Trump will only nominate someone worse during the next vacancy. And there’s fear there could be 2 or so more vacancies. So I think they’re doing some calculus, which is something that’s been top of mind for folks since: 1) Gorsuch was nominated and not Pryor, 2) they are gambling with what might happen in the future and the positioning of the President, Senate, etc.
Moderate Ds who’ve already come out opposed – and are really upset with Gorsuch’s record: Senators Casey, Carper, Nelson. I think there is some momentum that’ll build as this continues. The base is upset, and while I’m not sure the # of calls rival, say DeVos’ opposition, it seems like if they don’t fight they’ll see this as a big victory – and a lifetime appointment – for Trump.
Agree with Lena… Nobody will change their vote, much less will elections swing, in 2018 over “losing” the filibuster. No. One.
A deal is being bandied about as a non-nuclear end game scenario and that’s just fantasy, unless Ds are gullible enough to believe that Rs would stand by it. The only possible one would be to have a withdrawal and a nomination and approval of Merrick Garland and a promise by Ds to stand aside for Gorsuch should another opening present itself. It sounds like a good deal, but it’s a bad one for both sides. AND LOOKS TOO MUCH LIKE A WEST WING PLOT LINE PEOPLE!
It’s hard to see this ending in any scenario other than filibuster, failure to achieve cloture, and then the nuclear option. The consequences of that… are probably for another show.
The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!
Direct download: Advice & Consent #28: Gorsuch before the Judiciary Committee (mp3)
Gorsuch before the Judiciary Committee LENA GIVES A RUNDOWN
Day 1: As anticipated, all introductions.
- Grassley opens
- Gorsuch welcomes himself and his family (awkward hug w/wife), introduces clerks, assistant, others
- Grassley Opening:
- lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.
- Vote 4/3
- Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)
- Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers
- Ends w/a Scalia Quote
- Feinstein Opening:
- First to invoke mistreatment of Chief Judge Garland
- Mentioned process: litmus test issues
- Laid groundwork for threads talking about corporate power (TransAm), Chevron, campaign finance, Roe, originalism
- Bounced back and forth b/t R and D Committee members
- R themes: Gorsuch won’t answer Qs; Gorsuch is qualified
- Biggest theme: Ds shouldn’t make this political
- D themes: Garland shadow; judicial independence; litmus tests; dark money; Roe; Chevron
- R themes: Gorsuch won’t answer Qs; Gorsuch is qualified
Day 2: Round I questions, 30 minutes/Senator
- Grassley: more Scalia, trying to inoculate Gorsuch vs judicial independence line of inquiry; myth of unanimous decisions;
- Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about
- Hatch: hate Chevron so loves Gorsuch; mentioned bipart support
- Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ
- Graham: pats himself on back mostly
- Durbin: mentioned complicity, Gorsuch’s mentor Finnis
- Cornyn: talked a lot about law school duration; civic engagement; originalism
- Whitehouse: money in politics, dark money; anschultz
- Lee: one of the lawyers “in teh well” in front of Gorsuch
- Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;
- Cruz: romance and basketball
- Franken: Mr. Maddin case; Garland’s feelings
- Sasse: mutton busting
- Coons: Complicity and rel liberty
- Flake: jokes and trout
- Blumenthal: Trump and judicial independence
- Crapo: dormant commerce clause; Chevron
- Hirono: Korematsu
- Tillis: ?
- newSenatorKennedy: ?
Lena’s Take Aways:
- Rs are chastising Ds for making process “political”
- Bar is low: Graham expected Judge Judy
- Questions and technique of questions matter
- So many themes to pick up, was the D message diluted?
- Different Versions of Gorsuch – See examples of folksy Gorsuch here
TIM GIVES HIS 10 THOUGHTS
1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.
2 – Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.
3 – The media will be coronating him if they haven’t already started, largely because of #2.
4 – A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?
5 – Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.
6 – I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.
7 – Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.
8 – Best D: tie (Klobuchar and Franken). Next: Blumenthal and Whitehouse.
9 – Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.
10 – “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.
ADAM GIVES HIS THOUGHTS
Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdf Strict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals like Akhil Amar have taken up the originalist mantle).
1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They’ve either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.
- The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it’s senators from the party that controls the White House.
- Right now, senators act outraged when a nominee they don’t like won’t answer questions, but turn a blind eye when nominees they do like do the same thing.
- On the bright side, just because the job of judging should be apolitical, that doesn’t mean the job of selecting judges should be. Unlike Lena, I don’t think there is anything wrong with litmus tests and surely they are used. It’s ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It’s the nature of having elected officials in charge of judicial selection that they will use litmus treats. What’s wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren’t used and would be wrong if they were used.
Tim’s Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.
We will only do another pod this week if something unexpected happens – which, by definition, we don’t expect
We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.
The Senate Judiciary Committee is scheduled to question Judge Gorsuch next week. What’s the process look like and is there a likelihood of high drama on the Hill? The ragtag gang of the usual suspects previews the hearings!
Direct download: Advice & Consent 27: Judiciary Committee Hearing Preview (mp3)
(Still) not much news, but it’s warming up
Gorsuch continues to meet with Senators and is undoubtedly in full “murder board” prep.
New York Times reports connections between Gorsuch and “secretive billionaire” (oooh) Philip Anschutz, including the Colorado media mogul, Federalist Society backer and random sports team owner lobbying for Gorsuch’s 10th Circuit seat, among other things.
CRS report on Judge Gorsuch’s Record.
People impacted by Judge Gorsuch’s decisions came to D.C. today (3/15) for a press conference. Attending were 1) Alphonse Maddin, who was the trucker in the previously discussed who had been fired from his job at TransAm Trucking in 2009 when he nearly froze, 2) Patricia Caplinger, who sued Medtronic, when a medical device called Infuse was implanted in her in a way that was not approved by the FDA in 2015, and 3) Katherine Hwang whose mother, Grace, was fired from her teaching position at Kansas State after requesting accommodations after returning to work from leave for cancer treatment. The Hwang family also wrote an op-ed that was published in the San Francisco Chronicle.
Senator Warren joined groups opposed to Judge Gorusch at a rally outside the Supreme Court.
Followup from last pod
You may recall us highlighting the UPS gender discrimination case where Judge Gorsuch dissented, suggesting the lack of universal gender discrimination in the office was a reason the plaintiff shouldn’t get to a jury. The Tenth Circuit rejected that, following the settled concept that just because not everyone in a group is discriminated against doesn’t provide proof there isn’t discrimination going on against some of them. Tonight as we record, a federal district court in Hawaii used very similar logic to reject an argument of the Trump administration that the Muslim ban can’t be a Muslim ban because it doesn’t apply to all Muslim majority countries. Just a reminder… Judge Gorsuch was on the wrong end of this argument, as was the Trump administration.
Judiciary Committee Hearing Preview
Overview of the Process
What “always” happens/what we should definitely expect
- (i.e. softballs from GOP and hardballs from Dems)
What are things that would make this hearing go differently?
- (a few ideas)
- The Trump factor – attempts to secure a promise of independence (probability: high)
- Judge Gorsuch Borks himself (probability: exceedingly low)
- The Garland factor – attempts to say “you’re potentially SCOTUS worthy, but we won’t consider you until Garland gets a hearing” (probability: possible mention, but unlikely to go this far)
- The snooze factor – OMG How Do You Dissect Chevron, Class Actions, Arbitrations and Not Make People Sleepy factor – attempts to really get at the heart of Gorsuch’s troubling record on topics that make it hard for people to bring cases to court and that potentially dismantle administrative agency authority (probability: moderate)
- The Russia factor – calls to scuttle all lifetime appointments until Russia allegations are resolved (probability: unclear but low)
- The Other News factor – there are so many things happening, so will this receive the coverage such an event deserves? (probability: high)
Happy 1 year podaversary Advice & Consent (3/17… go have a green beer to celebrate.)
Look for a show Tuesday night after the first round of questions… then another show as appropriate, but certainly a hearing wrap up the week after.
Not much news.
Gorsuch quietly meeting with Senators.
“Hey I’ve got an idea that DEFINITELY wasn’t a part of a season 5 episode of The West Wing!” (WaPo)
Hearings scheduled for week of 3/20 (The Hill) – “hearings will begin March 20, with questioning of Gorsuch scheduled to start the next day.”
The Gorsuch record on social issues (and more)
– This ep we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process.
- Can we believe Trump this time? Trump’s litmus test – overturn Roe
- Might not have ruled on abortion, but certainly has feelings he writes about in his spare time. (Adam will discuss more) Still has feelings he writes about while he’s on the bench, even though question of abortion he needed to answer.
Planned Parenthood Ass’n of Utah v. Herbert (839 F.3d 1301 (10th Cir. 2016)
Herbert, Republican Governor of Utah, ordered the state to stop federal funding ($272k) to PP Assoc. Of Utah.
10th Cir. granted a preliminary injunction to PP, saying PP Assoc. Of Utah was operating lawfully (in response to those fraudulent tapes) and the Governor’s personal objection to abortion was the motivation for blocking federal funds, and the Governor was violating the constitutional rights of PP Assoc. Of Utah by refusing federal funding
Neither PP nor Utah sought en banc review of the panel decision, BUT Judge Gorsuch dissented and would have granted en banc review and would have let the Governor defund PP
Judge Briscoe wrote separately (from the majority opinion) noting how extreme Judge Gorsuch’s position was – saying it was “unusual” “extraordinary” for him to do this sua sponte. She also went on to say that Gorsuch “mischaracterized this litigation and the panel decision at several turns.”
Okay, fine. But what about contraception? Ah, that religious liberty gets some respect….
- Bonus if you’re a big ol corporation. Not so good if you’re their minimum wage workers.
Hobby Lobby Stores, Inc. v. Sebelius (723 F.3d 1114 (10th Cir. 2013)) (en banc)
Hobby Lobby, a closely-held corporation, thought that as part of their employer-sponsored health insurance plans they shouldn’t have to offer contraception because it conflicted with its religious beliefs.
Judge Gorsuch was part of a majority that said the Dept. of Health & Human Services couldn’t require such coverage. Saying corporations are people exercising religion for purpose of the Religious Freedom Restoration Act. This was upheld 5-4 in the Supreme Court.
But Gorsuch wrote a cute concurrence note to declare how much further he would go then the already conservative ruling in the 10th Circuit – something the Supreme Court didn’t even do in its decision. He said that not just corporations, but individual owners, could challenge the contraceptive mandate. Saying that he felt peoples religions trump individual rights and health care for women.
“All of us face the problem of complicity. All of us must answer for ourselves whether and
to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
- Cool. You can have your religious liberty, but let’s not make anyone have to do any paperwork so someone can get their medical care.
Little Sisters of the Poor Home for the Aged, Denver Colo. v. Burwell, 699 F.3d 1315 (10th Cir. 2015)
The Little Sisters said that it would be too burdensome for them to opt out of providing birth control coverage by signing a form that would then trigger other provision for contraceptive coverage through their insurance provider.
The 10th Circuit said the opt out accomodate was enough.
Judge Gorsuch joined a dissent from denial of en banc review where he said they should grant review to rehear the challenge because he believed that signing a form was a substantial burden to the Little Sisters’ free exercise religion.
Where does this go? Well, I raise these because in a weird concurrence and a dissent, Gorsuch chose to talk about this even though he didn’t have to. When one gets on the Supreme Court, they become more themselves. I believe Justices can differ from their decisions as judges, but these examples make me quite certain we can believe Trump.
First, Gorsuch is clearly a philosopher. The basic rule is that people ideologically opposed to the president are suspicious of philosopher-nominees. Democrats who embraced natural law ideas during the 1960s when the Court in Tim’s favorite case, Griswold, cited the Ninth Amendment as one of the possible sources of a constitutional right to privacy. But after 10 straight GOP nominees, Democrats were very scared of Clarence Thomas’ writing about natural law and natural rights as important reference points when interpreting the Constitution. As Lena can tell you, then-Chairman Biden spent much of his first round of questioning trying to pin down Thomas on how he would use natural law to interpret the Constitution. And this makes sense. Natural law and natural rights are powerful theories. They can lead to ideas such as a constitutional amendment is unconstitutional if it violates pre-existing natural law/rights, and if your ideological opponent is using natural law, they can do a lot of damage to the Constitution that you believe in.
So, here we have Gorsuch, a Rhodes Scholar, who wrote a whole book on the Constitution and assisted suicide and euthanasia. And his view, based on both law and philosophical ideas about the meaning of life, is that there is no constitutional right to assisted suicide. That, by itself, is not the most controversial statement in the world. The Supreme Court has held the same thing, and there wasn’t a big fight about it.
But what does it mean that he’s written such a book? One, that he cares deeply about issues of what the Constitution says about life. Two, that his views aren’t based simply on precedent, on originalism, or other things judges base their decisions on. Their based on philosophical views on life. Not only that, but strangely, he said that the person who wants to die isn’t the only person’s rights at stake (such as a person who doesn’t really want to die but is pressured by family members). The two-persons are involved argument is usually made in the abortion context (when the other person people usually mention is the fetus).
Now Gorsuch expressly tries to separate what he writes in his book from what he thinks about abortion, saying, for instance, that since Roe decided the fetus does not have constitutional rights. But that’s pretty hard to understand. If you’re going to say that a hypothetical person who really doesn’t want to die but evades all the safeguards in a Death with Dignity Act in order to die because of family pressure has rights that have to be considered along with people who actually do want to die must be considered, are you really going to say that a pregnant woman’s views outweigh those of the fetus, the father of the fetus? What about the exact same situation? Where a pregnant woman or girl is being pressured by family to have an abortion but doesn’t want to? Shouldn’t that invalidate all abortion laws based on Gorsuch’s natural law/rights argument?
To cut to the legal realism argument, however, I think it’s pretty clear that Gorsuch wrote this book to signal his views on abortion and other controversial social issues while having plausible deniability should he be nominated for the Court.
Lena: A little big about John Finnis, Judge Gorsuch’s advisor: https://www.theguardian.com/law/2017/feb/03/neil-gorsuch-mentor-john-finnis-compared-gay-sex-to-bestiality
I’d like to focus on a gender discrimination case… Strickland v. UPS
Carole Strickland, a salesperson for UPS sued for sex discrimination. She had a tough time of it. Shortly after a bad breakup, her bosses put her through the ringer… insisting (against her initial wishes) that she take medical leave. When she returned, they subjected her to micro-managy meetings no one else had to go through despite meeting or nearly meeting every sales quota thrown at her. At least one male member in the area ranked worse than her and never had to go through similar treatment. Co-workers said she was treated differently than the other men – for instance she couldn’t get important questions answered that would have helped her perform her job, while her male co-workers got their questions answered without a problem. The record showed pregnancy leave was frowned upon, and only reluctantly granted due to federal law. This was the environment that was the basis of the sex discrimination complaint. And the 10th Circuit majority said the record contained enough for the case to go to a jury.
But not Judge Gorsuch. In his dissent he wrote no reasonable jury would have found sex discrimination based on the record. This despite a whole host of things that suggested Ms. Strickland’s poor treatment could have been gender-based and that a jury should be the place to suss that out. Judge Gorsuch hung his hat on the testimony of the one other woman in the office who said she wasn’t treated differently than the plaintiff. But under settled 10th Circuit law that’s not enough… just because women aren’t universally discriminated against doesn’t mean one or more women aren’t.
It’s not that the record definitively demonstrated sex discrimination… but Judge Gorsuch’s colleagues held… and I would posit, most reasonable legal minds would concur… there was enough there for a jury to weigh the facts.
And that’s a problem. Judges are gatekeepers and have to do some degree of factual assessment before trial, but that bar is very low and favors plaintiffs in federal courts (yo, Professor Doernburg… I still got it!). A judge assumes everything on the record is true when making an assessment, and if there’s a question of fact… like there clearly was here… a judge passes it to the jury determine those facts.
It may be there was no sexual discrimination in this case… just awful management and bad behavior. But, Judge Gorsuch’s quick trigger in this instance dovetails with his attitude towards judicial relief generally… in other writings he wrings his hands over liberals misusing courts for relief, bemoaning the poor companies that have to defend lawsuits. This is an example of how he puts the thumb on the scale to deny a plaintiff a shot at discovery and a jury in a gender discrimination context.
Oh and for what it’s worth vis a vis last week… this also happens to side with a big shipping company over an individual… par for the course.
SCOTUS politics: a lifetime appointment in the context of the Russian allegations
Every day we seem to get closer to the most outlandish and absurd possibility that someone or some people in the Trump campaign colluded with Russian agents to impact the election. Given the lifetime appointment that is the SCOTUS seat, is it appropriate for Senate Democrats to filibuster this and future lifetime appointments (i.e. all judicial noms) until a complete independent investigation is done? Would framing a filibuster this way make it harder for Senate Republicans to go nuclear?
Lena: process politics not nominee – missing info: DOJ WH Pres Library) Sessions, Independence
Judge Gorsuch’s questionnaire answers for the Judiciary Committee brought Washington to a halt this week… oh wait, is there anything else going on that can supersede a Supreme Court nomination process for political coverage these days? Take a break from firings and international intrigue with a deep dive into the judge’s record on siding with corporate interests with us too…
Direct download: Advice & Consent 25: The Questionnaire (mp3)
Senate Judiciary Committee releases the public portions of Judge Gorsuch’s questionnaire (PDF).
Any highlights pop out to you?
Lena: I’m a process person more than anything and so I jumped to the end and looked at Q26. They say “Describe your experience in the entire judicial selection process…” I outlined last week what had been written about his meetings which is essentially regurgitated. He highlights conversations with:
- Leonard Leo, Federalist Society
- Donald McGahn, White House Counsel
- VP Pence
- Steve Bannon (Sr. Advisor to the President)
- Mark Paoletta (Counsel to VP)
- Reince Priebus (Chief of Staff to President)
- Makan Delrahim (Deputy Counsel to President)
- James Burnham (Sr. Associate Counsel to the President)
- “and may have had other communications with the individuals listed above, or groups of them”
Adam: Judge Gorsuch has a very Republican record. This is not always the case. It was the case with Kagan (a Democratic record) and Alito (a Republican record) but it is not inevitable. Sotomayor was appointed to the bench by George H.W. Bush. Roberts had environmental cases in his pro bono record, while Gorsuch apparently did no pro bono in 16 years before becoming a judge. That’s a problem. It’s also a problem that Gorsuch will follow the precedent of every nominee since Bork and not talk about controversial issues that might appear before him unless he’s previously written on the topic.
Tim: I think the questionnaire needs to ask questions a little more specifically regarding the “litmus test” question (26c). It defies credulity that Judge Gorsuch wasn’t vetted directly on a variety of issues, most notably Roe. If he hasn’t been vetted, then Trump broke a major campaign promise. So let’s assume he was… the question has a hole you can drive a truck through: [insert question here]
It would be painfully easy to ask a question by a third party that was along the lines of “Tell me what you think of Roe.” not “Would you vote to overturn Roe?” and still be able to answer the last question of the questionnaire truthfully. I mean, this is basic lawyering stuff.
Neil Gorsuch and the issues, volume 1 – Corporate Interests/Big Business BFF
Lena: Judge Gorsuch wrote a controversial dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016).
HIts the Judge Gorsuch highlights:
- Siding with big employers, not workers
- Disdain for Chevron
- Contorted “textualism”
- Dehumanizing tone
Judge Gorsuch’s Opinion in Whistleblower Case Reveals the Dishonesty of his Alleged Strict Textualism (Article/blog post by Jason Zuckerman)
Tim: Judge Gorsuch is another member of the “class actions are the bane of democracy!” crowd. The argument tends to be, “they’re really big and they’re too easy to win which is bad!” It’s sort of the powered up version of the arguments you hear on tort reform… these are frivolous cases and it hurts the economy… yadda yadda yadda… hug a small business owner and call it a day.
In Gorsuch’s case, he pulls this argument in the context of class actions over securities fraud. He goes so far to suggest innocent securities companies all over the country are being sued in class actions, and frivolously at that. Because they’re all frivolous. Ok. Sure.
It’s all couched in an attempt (that failed by the way) to require class action plaintiffs to prove causation between the securities fraud and their loss just to get the class certified. Mind you… these plaintiffs still need to prove it down the line to win… but this is a cynical method to stop class actions from happening before they start. The bottom line, he was wrong on this, and it shows his stripes.
Best read: No Loss, No Gain, Legal Times, Jan. 31, 2005. (“free ride[s] to fast riches.” and that the cases are “frivolous claims” that are “affecting virtually every public corporation in America at one time or another and costing business billions of dollars in settlements every year.”)
Adam: 10,000 foot view. How much difference will Gorsuch really make on the Court in terms of its corporate record? How many nominees have a demonstrated commitment to justice for anyone besides corporations/the big guy. We have a bunch of Harvard/Yale Law School justices who were summer associates at large law firms and then either went directly into government or worked for large law firms first. They often rule in favor of corporate interests by 9-0 even when lower courts came out differently from then. The exception is Ginsburg, but on non-civil rights issues, she has shown remarkably little solicitude for litigants taking on the powerful. If you learned about personal jurisdiction more than 5 years ago, everything you know about general jurisdiction is now wrong because Ginsburg was horrified at the idea that a corporation could be haled into court somewhere where they’re not doing business. She’s repeatedly ruled to send cases to pro-corporate arbitration.
I’ve been through the justices, and the last Supreme Court justice who actually had a demonstrated record of fighting for the little person was Justice Goldberg, who was general counsel for labor unions, and served for 3 years on the Supreme Court in the 1960s before LBJ tricked him off the Court so he could appoint his pal Abe Fortas in his stead.
Stop us if you’ve heard this one before… a President walks in a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we’ll have to be more specific? President Trump is at it again with his “so-called judges” remark as his travel ban EO works its way through the lower federal courts … perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.
Direct download: Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate (mp3)
So-called judges and framing the Neil Gorsuch debate
POTUS and the Courts
Are the President’s comments about the federal courts dangerous?
Lena: Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:
- Degrading systems of justice
- Creating mistrust
- Signaling to supporters on individuals, potentially causing personal harm
- Distracting us from other dangerous stuff he’s doing
Tim: It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.
Adam: To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence. I wrote a blog post explaining why here.
Travel Ban appeal before the 9th Circuit
Framing: Trump’s vision of the courts.
Lena: This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.
How Trump Chose His Supreme Court Nominee (Adam Liptak, NYT, 2/6/2017)
- Judge Gorsuch is really well known, with degrees from Columbia, Harvard, Oxford.
- Worked against him b/c Trump was trying to make a more anti-establishment pick (which seemed to indicate an aversion to the Ivies.)
- Concern about his record and releasing his name early to create a backlash given how conservative he is
- Wanted the best; most Scalia like (as if it’s still the 1980s)
- Wanted to be assured it wouldn’t be a mistake (a la Justice Souter and Chief Justice Roberts)
- 1/5 Gorsuch met w/McGahn for personal vetting; then met with Vice President-elect Mike Pence (“particularly involved”); Reince Priebus(White House chief of staff); Stephen K. Bannon (chief strategist); Mark Paoletta, (VP Pence’s counsel); and Don McGahn (WHite House Counsel)
- Gorsuch emerged as the “clear winner”
This entire process raises concerns
- What does Trump think he’s getting out of this – litmus test, loyalty, EOs
- Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?
- What about his writings did they love?
- How is Gorsuch going to show a strong check/independence when the President is undermining the entire judiciary
Adam: we’re really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate’s decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.
This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life. Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.
But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people’s will?
Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.
Direct download: Advice & Consent 23: Neil Gorsuch, Nuclear Nominee (mp3)
Neil Gorsuch, Nuclear Nominee: the record
AFJAC fact sheet (PDF) to tide you over. More in future episodes.
The Reaction DEMS
Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it… 60 votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly fucked with the norms,” and (with apologies to Good Will Hunting)…. “Do you like apples? HOW DO YOU LIKE THEM APPLES!”
Universal, fawning, near drooling adulation and… “Hey! This 60 vote thing is bullshit. Let’s vote! We need 9! #doyourjob”
Past votes for SCOTUS seats (US Senate)
Filibuster and the nuclear option
Adam: My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster. There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote. It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore. I think even Ds up for reelection will have to worry about being primaried if they break.
Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years. What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland. Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.
QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record? Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one? The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG). Here’s a possibility: http://www.acslaw.org/acsblog/draft-prado-effort-launched
Lena: This any nominee should be able to meet the 60 vote threshold – an indication the person receives bipartisan support which is incredibly important now.
Layers to consider:
- Support/Oppose Nominee
- Ds Positions:
- Give Garland vote 1st
- No because this is a stolen seat
- Review the record, give full hearing and up-or-down vote
- Rs Positions:
- Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months
- Institutionalists who don’t want to change rules
- 2018 Senate relections (8 Rs, 25 Ds (23 Ds, 2 Is who caucus w/Ds)
- 2020 aspirations
- Filibuster Reform (change threshold from super majority to simple majority)
- Ds more likely than ever to do this
- Some Ds will be harder to convince
- Probably a matter of timing
- Rs will likely change filibuster rules then
Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before. And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions). Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.
Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.
We’re in a new SCOTUS paradigm. With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.
What Usually Happens & When for Supreme Court Nominees?
Based on Supreme Court nominations since 1975.