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Advice & Consent 22: Nominee Neil Gorsuch

Donald Trump has named Judge Neil Gorsuch for the SCOTUS vacancy. On this special edition, our initial impressions…

Neil Gorsuch nominateed to SCOTUS

Neil Gorsuch is a judge on the Court of Appeals for the 10th Circuit, which sits in Denver. He was approved on a voice vote in 2006.

He is a graduate of Columbia, Harvard and Oxford, and clerked for Judge Sentelle on the DC Circuit and Supreme Court Justices White and Kennedy.

He’s best known for:

  • Being a conservative intellectual (wrote a book on conservative legal reasoning)
  • An expansive view on freedom of religion (Hobby Lobby)
  • A position of less deference to federal agencies (suggesting Chevron should be reconsidered)
  • Approving strip-searching of detainees arrested for any crime.
  • Originalism –  judges should strive “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” (Speech at Case Western)
  • He’s into the dormant commerce clause – more in that on Thursday
  • Opposition to right-to-die; almost certainly anti-choice on abortion

SIDEBAR… however, Andrew Schlafly—son of the late Phyllis Schlafly and president of the Legal Center for the Defense of Life—indicated that Gorsuch “won’t be pro-life on the bench … because he doesn’t invoke the term ‘unborn child’ in his decisions or public comments.”

  • Favors state rights over federal control
  • A reliable conservative not above a little liberal bashing:

Gorsuch has attacked “American liberals” for what he said was an over-reliance on constitutional litigation. He asserted that liberals’ “overweening addiction to the courtroom” negatively affects public policy by aggrandizing the courts and consequently dampening “social experimentation” by the legislative branches.

  • Judge Gorsuch is an avid outdoorsman and doesn’t tweet. That’s Willett’s bag.
  • Trivia: son of the late Anne Gorsuch, administrator of EPA under Reagan. Not exactly beloved by the environmental community, and the first agency director to be found in contempt of Congress. 

Initial thoughts?

Adam: What happens depends on whether Democrats see this as the Scalia seat or the Garland seat.  There’s no reason to have a big fight over the Scalia seat.  There’s a big reason to have a big fight over the Garland seat.  We’re going to hear Garland’s name mentioned as much as Gorsuch’s over the next few months.  Don’t think Democrats are going to be able to duck the fight even if they want to.

Tim: a lot to talk about. You’ll hear a lot about Chevron and Hobby Lobby. The whole thing may boil down to whether President Trump and – perhaps more importantly – Mitch McConnell are ready to burn the Senate to the ground over this seat. The vast majority of the Dems feel principled that the treatment Garland and Obama got was out of bounds, and won’t lift a proverbial finger to confirm someone in that slot.

Process for the next few weeks

Coming Thursday…

More on Judge Neil Gorsuch

More on scheduled hearings and early reactions to the nomination

The prospect of filibuster and the nuclear option

Advice & Consent 21: The SCOTUS shortlist

Regarding Episode 20? As we predicted, never mind.

Since then… Dan met Dahlia Lithwick! Lena met Khizr Khan! And Adam and Tim watched hockey, bemoaning the future of our judiciary.

Advice & Consent 21: The SCOTUS shortlist (mp3)

The SCOTUS Shortlist

PEOTUS Trump inherits a SCOTUS vacancy (stolen, mind you… listen to our prior 20 episodes for more on that). There’s a relatively public shortlist. On this episode, we chat a little more in depth about the people on that list, what their ascendancy to the high court would mean and our best guess at whom the new President will nominate.

(Commentary by CNN) William Pryor: Roe v. Wade = a bomination Diane Sykes: Contraceptive Mandate Raymond Kethledge: Kennedy clerk Joan Larsen: Scalia clerk Steve Colloton: DC insider Neil Gorsuch: another Ivy Leaguer Amul Thapar: District Court Judge Sen. Mike Lee: Tea party favorite Don Willett: The tweeting judge David Stras: Thomas clerk Thomas Hardiman: Cited Scalia on gun control Raymond Gruender: Contraception ruling Margaret Ryan: military record Sen. Ted Cruz: Wild card

America’s Newest Favorite Gameshow: From Anonymity to Famous for DC!

Who’s it going to be? Someone from the list or a wild card?

Lena: All have been vetted by very conservative legal folks even though the most conservative of them still make some small groups of conservatives mad that they may not have twisted the law to always favor the outcome they seek. So, my criteria for guessing: 1) some sense of loyalty/flattery; 2) looks; 3) age. I’m still guessing Judge William Pryor. Judge Diane Sykes, my normal second guess, is demoted because she’s 58 years old. My new second guess is probably Judge Steven Colloton.

Pryor: not Ivy educated (Tulane), no SCOTUS clerk, allegiance to Sen. Sessions Colloton: Ivy educated (Princeton BA, Yale JD), clerked for Chief Justice Rehnquist, allegience to more established conservatives (George HW Bush, then W Bush

Adam: if he can get away with it he’ll go off the board (to use a Jokers Wild term) and pick a Trump flunkie who will rule in his favor on his personal lawsuits. So, based on my sense of Trump’s loyalty to the base of his party (taking into account his desire for reelection) and his loyalty to self, I say 55% chance of Pryor, based on his picking Sessions as AG, 5% one of these other people, 40% chance of an unknown Trump flunkie

Dan: Lena has sold me on Steven Colloton. Solid conservative, no massive red culture war red flags like Pryor, looks the part. Trump won’t want to waste political capital on the Supreme Court with a battle over Pryor.

Tim: Reports of William Pryor meeting with The Donald aside, a former colleague said it best before the holidays… if Don Willett gets a meeting with Trump, it’s all over. He’s the nominee. Check out his Twitter feed and you’ll immediately see why. He’s young, charismatic, fiercely conservative, and strikes me as packaged perfectly for this President-to-be. His marginally anti-Trump tweets will be easily brushed aside.

Wrapping up… Any last thoughts before we enter the Trump era?

Lena: Lower courts

Dan:Rev. Dr. William Barber – critical voice for the Trump era

Adam: SCOTUSBlog: Timeline to confirm Scalia’s successor. Very interesting. If confirmation happens on the Sotomayor/Kagan timeline, the nominee will get on the Court just in time for the last argument session of the 2016-17 term, meaning that the Court could rehear arguments in cases in which they are tied 4-4 and have a decision before they leave in June. That said, Democrats have some leverage since Republicans have to trigger the nuclear option to push a nominee through over a Democratic filibuster. Only 3 Ds remain on the Judiciary Committee from the last time the Senate considered a Republican nominee, Feinstein (ranking member), Leahy (ranking member last time), and Durbin (Minority Whip then and now). So, it will be a new experience for the Committee. Four Republicans remain from the Roberts/Alito hearings

Tim: We know the PEOTUS will likely make a nomination within the next two weeks, so our next show will come out shortly afterwards and focus on the nominee and the circus to be named later. Sen. Schumer has intimated that there may be some shenanigans.

Advice & Consent 20: January 3, 2017

The end of the year special… a viable, Constitutional path to confirming Merrick Garland on January 3, 2017. But is it practical? Or even a good idea?

Preamble: January 3, 2017

There are a lot (A LOT) of pie in the sky, save the country from itself, never going to work, clickbaity theories on things these days. Most of these are sheer hackery.

HOWEVER. One thing caught our attention as it had to do with the process of confirming (or not confirming) Merrick Garland, which is kind of what this show’s been about. We think it’s been dismissed by a lot of people and embraced by others. Either way. It’s worthy of discussion.

At the outset, we are definitely aware that Chief Judge Garland is going back to work at his old job.

The Working Theory

With Biden in the chair on Jan. 3, the Senate can confirm a renominated Merrick Garland. Here’s how. (Daily Kos) by David Waldman

  1. On January 3, 2017 the US Senate will gavel into session with 34 Democrats, 2 Democrat-leaning Independents and 30 Republicans. There will be 34 Senators-elect awaiting to be sworn in.
  2. Vice President Joe Biden is the person who gavels in the new Senate session
  3. Ordinary norms of Senate procedure would have VPOTUS recognize the soon-to-be Majority Leader Mitch McConnell (R-KY) and the Senate procedures would kick in with swearing in the new Senators and the new Republican majority.
  4. HOWEVER… at that precise moment, the VPOTUS has the conch (as it were) and nothing legally prevents him from recognizing another Senator. In fact, the Senate rules provide that the presiding officer must recognize whoever addresses him first, and no one traditionally has a right of first recognition, a norm that changed in the early 20th Century. Let’s say Biden chooses the highest ranking active Democrat there, Sen. Dick Durbin (D-IL). This is not illegal, just a change in the norms of Senate behavior. Very much like not holding hearings on a SCOTUS nomination. Or a POTUS candidate not releasing tax returns. Or a PEOTUS having business conflicts of interest.
  5. Let’s say Sen. Durbin – over the out of order protests of Sen. McConnell and others – does the following:
    1. Allows the president to submit a renomination of Garland through his messengers
    2. Allows Durbin to make parliamentary motions to make Garland’s nomination the pending business.
    3. Allows Durbin to use the nuclear option mechanism to get a parliamentary ruling from VP Biden (or from the majority of sitting senators should Biden rule against Durbin that the Senate rules are not in effect at the beginning of a new Senate, and default rules (similar to House rules) are in effect instead.
    4. Following an affirmative ruling, the Senate confirms Garland
  6. The Senate as constituted votes OR Sen. Durbin suspends without yielding to any Republican and they cut an alternative deal.

Confirmation chances?

(see whip count doc)

Tim: my count is 34-32 for confirmation… Sens. Heitkamp and Manchin vote no and the rest of the votes fall along party lines with the independents and Dems voting for confirmation and GOP against.

Lena: Maybe. Probably along Tim’s lines. But it requires one big influencer to make it happen – Uncle Joe.

Hesitation re: Senators Manchin (WV), Heitkamp (ND), others more in the center who are up for reelection unlikely to join.A lot of others (Stabenow (MI), Klobuchar (MN), Tester (MT), Donnelly (IN)) up for re-election – also may be unlikely if think could be a detriment

Is this legal/Constitutional?

The rule changes and precedent-breaking here are vast enough that they’re changes we usually associate with a banana republic, but if the Dems are willing to do this… do you think this works, meaning is it legal, Constitutional, and within Senate rules and procedures.

(Discussion on the mechanics only here)

Adam: The Supreme Court says one Congress cannot bind a subsequent Congress, and the Constitution says the Senate makes and interprets its own rule. Those to doctrines together make this legal since interpreting the rules of a previous Congress not to apply to a new Congress is therefore a perfectly licit interpretation

Lena: Probably, but I think it could be tied up in the courts for a while.

Tim: This appears to be wildly against Senate norms, but I don’t see a hole in this that would prevent it from working. It would amend Senate rules from a prior Congress and, as Adam notes, not violate any Constitutional framework. The vote would be legal and in quorum.

For the record, there are those that say this is “fantasy.” (Sean Davis, cofounder of The Federalist lays out his counter argument in an article in – you guessed it – The Federalist). Long story short, there’s an argument that Senate rules for the presentation of credentials (i.e. all the new Senators) takes precedence over everything and Durbin’s motion(s) would be out of order or otherwise contrary to Senate rules.

However, Adam’s contention that the nuclear option kills this rule strikes me as a compelling rebuttal to Davis.

Is this a good idea?

This burns up a working Senate and possible sets up a Constitutional crisis. But it’s legal and sets things “right” by getting Merrick Garland on the Court. Is it a good idea? Is it worth it?

Lena: No. Afraid that people are holding on hope and will only be further disappointed. Someone needs to govern, I’m concerned about norms.

Adam: if you believe our government is completely broken, then yes. Otherwise, no. Because the new government would likely pack the court with new seats in response, do you want the Court to be a central issue, this is a great way to do it, but it won’t create a working liberal Supreme Court majority.

Tim: I won’t lie… I have been attracted to this theory. I think the Dems would be fully justified to tear up norms in history’s biggest and boldest example of tit for tat. However, I recognize this damages the Senate as a working body for a long time, perhaps permanently and that’s why I lean away from it. It’s a bad idea.

That said… With a President Trump coming 17 days later, perhaps that’s a feature and not a bug? But by hobbling the legislative branch, does this empower the incoming POTUS all the more? Also, will CJ Roberts have any authority to choose not to acknowledge a Justice Garland? And would Trump do anything to prevent Justice Garland from serving (bar him from the building?) after Jan 20th? Trump’s White House counsel is Donald McGahn, a former FEC member, and has a similar personality as The Donald. Expect boundary pushing legal opinions from him on this and other things.

On the other hand: if there’s a possibility this doesn’t work, you just handed President Trump a slot on the DC Circuit too. So there’s that. I’m also not sure if there’s a political backlash that would happen where Dems would reap a worse whirlwind in 2018 (and perhaps 2020) than expected.


Is this going to happen? Will it be a vote with the mini-Senate or a deal? How does PEOTUS Trump and CJOTUS Roberts react?

Adam: This requires someone to have a burning rage at how the Garland nomination was treated. It’s possible they 32 Senate Ds and Biden have this rage. However, the president must share this rage tool. He doesn’t. How often have you heard Obama passionately discuss this issue? Zero times? So we’re just wasting your time here with a fun scenario.

Lena: No. I think there’s a better chance of a recess appointment, which I give a .001% chance. Moreso, I think the chances of it happening are 0% based on 1) President Obama 2) Chief Judge Merrick Garland (already saying will be back to work in January).  Garland is scheduled to hear oral arguments starting Jan. 18 which to me indicates they don’t have the nominee on board.So if something like a recess appointment or this Jan. 3 option happens, it’d 100% be with another person and not sure who that would be..

Tim: Democrats don’t do things like this. I think POTUS sees a post-Trump future where institutions still matter and this would be contrary to that.

Bonus: Recess Appointment?

Advice & Consent 19: Transition turmoil + SCOTUS

It’s transition season now that the election is over and a few questions remain for the Garland nomination… notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hills and through the woods for a holiday break!

Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?

Could President Obama really appoint his Supreme Court nominee? (WaPo video)

No direct precedent

Probable Constitutional crisisTM after Jan 20th

President Obama unlikely to be into this option

Even if he wasn’t, probably too late (should have happened this summer)

Adam:  The question Democrats/liberal activists have to confront is:  As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.

For example, the Senate rules allow Democrats to basically force the Senate to do nothing.  The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session–normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.

To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees–where cloture already takes a simple majority–it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).

These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.

It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail?  I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).


If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯_(ツ)_/¯

Lena: While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen – I do think it’s an affirmative duty.

Dan: Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?


Lena: First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.

Interesting because she’s up for reelection in 2018.

Strong membership under the Ranking Member, as well.

Dan: Important on govt surveillance issues.

New names for The List and conservatives victory lap

Conservatives let themselves dream big about Scalia’s replacement (CNN)

Alito’s guideline on issues of Americans’ liberties: ‘What would Scalia do?’ (WaPo)

Dan: I just need to publicly cry over this for a moment: “Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”

Ted Cruz?

Lena: WSJ article pushing President-Elect Trump to vet and nominate a new Suprem Court justice given pending cases on Obama Administration regulations: http://www.wsj.com/articles/trumps-supreme-court-priority-1479682227

Tim: Holiday episode proposal: SCOTUS List Mock Draft!

New segment: Outrage Fatigue – things to keep an eye on

Jefferson Beauregard Sessions, III

Lithwick on Sessions (Slate)

Reminding listeners why he was rejected as a federal judge

Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)

Already normalized?

Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statement that she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation. (Vox)

Internment of Japanese-Americans as a precedent for a Muslim registry

Japanese American internment is ‘precedent’ for national Muslim registry, prominent Trump backer says

One can foresee a case on appeal where the Trump admin’s SG cites Korematsu favorably while arguing the Constitutionality of a Muslim registry.

Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?

Adam: They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:


Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia ranked Korematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Greene wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .

No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.

Advice & Consent 018: What's Next?

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. Dan Roth is currently at a cruising altitude of 30,000 feet and will return in a future episode!




Trump’s victory has enormous consequences for the Supreme Court (WaPo)


This just became a very different podcast. What’s next?


Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?




  1. Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?


I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days.  It’s incredible how often Bush spoke about judges).


How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.


  1. To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date).  There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf


Lena: McConnell won. We let him.


I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.


In the future, I have no idea what this means for future nominations. We have a new normal.


Tim: I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.


Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”


So, there’s that.


Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?


Lena: Day one. Probably sooner we’ll have an idea of the top few contenders.


Adam As soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.


Tim: I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.


Who do you think will be picked?


Dan from Oakland writes in: “FFS he’s going to put Ted Cruz on the Supreme Court.”


Lena: We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.


Adam I think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.


Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.


Filibuster? Nuclear option?


Adam: Dems will decide whether to conciliate or to block. Don’t know right answer.


Tim: I don’t know how I feel about a filibuster – I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.


Lena: Our constitutional democracy is threatened: on process and substance.


Programming note: We’ll continue the show through the nomination and confirmation process.








https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-7.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030.html [weekly radio address]





https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-15.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-14.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-13.html [Cheney]









Advice & Consent 17: The two-month-long podcast that may last five years?

The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election…

Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination on March 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees – a flip flop from their position of let the next President decide…

Sen. Richard Burr (R-NC) says no SCOTUS confirmations for a President Clinton. Sight unseen.

Sen. Ted Cruz and Sen. John McCain say similar/parallel things.

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing!  What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam: Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.”  The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800.  In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges.  Jefferson refused to seat these judges, creating a constitutional crisis leading to Marbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841.  John Tyler succeeded him (Tippecanoe and Tyler too).  This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay.  These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office.  There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president.  Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees.  But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868.  No one would deny that this was a constitutional crisis.  President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president.  Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all).  Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson.  No one would deny that this was a time of constitutional crisis.  The Civil War had just ended.  A large chunk of the nation was under military occupation.  There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united–and radical–Congress opposing him.  Finally, we had a Supreme Court whose most momentous decision to date, Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices.  The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when the Lochner-era Supreme Court stymied the New Deal.  Everyone listening probably knows about this from their history class, so there’s no need for detail.  There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based on the Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip to Paul Waldman in the WaPo for that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena: Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

Also, because Hamilton: See Geof Stone’s piece on how partisan complete obstruction is. http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&utm_source=ccb-morning10&utm_campaign=ccb-morning10-20161103

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena: I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

  • Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.
  • Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS – and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam:  Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice.  What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where they don’t go for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena: The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?


  • Evidence of maybe yes:
    • Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)
    • White House says Garland will remain nominee in lame duck (Talkmedianews)
    • Senators like Jeff Flake and Orrin Hatch suggest an HRC win might mean the most conservative option remaining is Merrick Garland
  • Evidence of no, this gets ugly: basically everything else
    • Pressure from the left to go more liberal and claim mandate from election
    • Pressure from the right to dig in and maintain “Scalia seat”
    • Aforementioned comments from Sen. Burr
    • If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.


  • I hope so. Serves most people’s best interests.
    • Rs aren’t united on this.
    • Levers – 1st Grassly, 2nd McConnell
      • Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.


Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that’s enough. I’m out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” – elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim: If this is a real thing, then I have one name: Thurgood Marshall. [If it’s not, let’s drop it from the rundown on the show]

Lena: Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

  • A maybe? Less elitist speculative list: http://ijr.com/2016/07/662707-clinton-insiders-list-potential-supreme-court-nominees-the-top-pick-will-make-obama-very-happy/

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim: I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena: Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out – actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam: I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

With the likelihood that the GOP will take control of the Senate in 2018, do we foresee any Justices taking an early retirement?

Adam: I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seemingly no longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena: Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

A happier note to end the show…

Congratulations to retired Justice John Paul Stevens on seeing his beloved Cubs win the World Series for the first time since he was… well the 96 year old SCOTUS alum never saw his Cubs win since it took 108 years for them to do it.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

In this episode we chat about our the SCOTUS action in the third presidential debates and explore the new forms of obstructionism on the horizon.

Direct download: Advice & Consent 16: “One Last Time” for the debates and increased obstructionism in 2017? (mp3)

Merrick Garland at 219 days

  • Today as we record the show (10/20) marks day 219 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. Stay tuned til the end of the show for a programming note…
  • Senator John McCain (R-Ariz.) said this week that Senate Republicans will move to block any Supreme Court nominee made by a Democratic President.
  • On the other hand, Senators Orrin Hatch (R-Utah) and Mike Lee (R-Utah) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) try to appear reasonable. TRY…
  • Also, some cracking… Senator Jeff Flake (R-Ariz.) said “If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That’s what I’m encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?


  1. I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.
  2. My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.
  3. I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the  two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.  
  4. Pleased Clinton mentioned the current vacancy – and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.
  5. A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.


Secretary Clinton, Mr. Trump, welcome. Let’s get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it’s great to be with you, and thank you, everybody. The Supreme Court: It’s what it’s all about. Our country is so, so — it’s just so imperative that we have the right justices.

Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent. And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don’t think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it’s absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important.

I don’t think we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that is guns.

Secretary Clinton, you said last year, let me quote, “The Supreme Court is wrong on the Second Amendment.” And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What’s wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn’t mean that I want people who shouldn’t have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton’s answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP: Well, the D.C. vs. Heller decision was very strongly — and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

WALLACE: Well, let me bring in Secretary Clinton. Were you extremely upset?

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there’s no doubt that I respect the Second Amendment, that I also believe there’s an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald’s been strongly supported by the NRA. The gun lobby’s on his side. They’re running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we’re going to protect and defend the Second Amendment. But we’re going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am — I don’t know if Hillary was saying it in a sarcastic manner, but I’m very proud to have the endorsement of the NRA. And it’s the earliest endorsement they’ve ever given to anybody who ran for president. So I’m very honored by all of that.

We are going to appoint justices — this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let’s pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that’s the issue of abortion.

TRUMP: Right.

WALLACE: Mr. Trump, you’re pro-life. But I want to ask you specifically: Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes — in fact, states — a woman’s right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I’m asking you specifically. Would you like to…

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it’s not only about Roe v. Wade. It is about what’s happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he’s in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women’s rights to make their own health care decisions.

WALLACE: Secretary Clinton… CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I’m going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

WALLACE: Mr. Trump, your reaction? And particularly on this issue of late-term, partial-birth abortions.

TRUMP: Well, I think it’s terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that’s OK and Hillary can say that that’s OK. But it’s not OK with me, because based on what she’s saying, and based on where she’s going, and where she’s been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that’s not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I’ve had the great honor of traveling across the world on behalf of our country. I’ve been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment…

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.


1) I wrongly predicted that Wallace would play it straight.  Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best.  Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the term https://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did.  Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results.  And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups.  Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed.  So I want to highlight a more interesting chance to follow-up.  If Wallace had said, “You frame your opposition to Heller in terms of toddlers shooting people.  But Secretary Clinton, the District of Columbia gun law that was overthrown in Heller was in reality a complete ban on owning a handgun.  Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself.  If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?”  Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly.  Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination.  Sad trombone for less than a full sentence for Citizens United.  Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change.  Sad trombone for three debates and no mention of the corporate court.

4) Forbes contributor Michael Bobelian made the interesting point that, in the post-WWII era, Nixon was the first to campaign explicitly on a promise to reshape the Supreme Court. http://www.forbes.com/sites/michaelbobelian/2016/10/20/clinton-trump-feud-over-supreme-court-fueling-a-campaign-battle-ignited-by-nixon-in-68/2/#9b486841a153.  It was part of Nixon’s (failed for 1968) Southern Strategy.  Before that, we had had 30 years of peace on the issue of the Supreme Court at the presidential level.  So, we’re all living in Nixonland. Take a bow, Rick Perlstein. https://www.amazon.com/Nixonland-Rise-President-Fracturing-America/dp/074324303X


The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump — as Lena noted — the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn’t exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald’s answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn’t understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structure even and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)


The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland’s nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley: I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it’s Trump or Ms. Clinton will make the next appointment as far as I’m concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there’s been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can’t have one rule for Democratic Presidents and another rule for Republican Presidents so we’re being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley: If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don’t expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland’s nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view. I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn’t elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there’s a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there’s nothing in the Constitution that says the Senate has to move ahead. That’s the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what’s your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what’s wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There’s nothing wrong with the checks and balances in our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it’s being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim: This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam: The lie about 1968 shows just how unmoored the argument against holding a hearing is.  First of all, what Grassley is talking about is a filibuster of the Fortas nomination.  The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas.  Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House.  That would be just about the dumbest political strategy in history.  And of course that’s not what happened.  A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it.  And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrd https://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Sen. John McCain!

HRC wins, Senate goes to the GOP.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. (CNN)


Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam: The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more.  That said, 10 if GOP retains the Senate. 1 if they do not.  They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, Nomi Stolzenberg, describes the Senate filibuster as political Lochnerism–a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people.  This brings up interesting issues that probably go beyond the scope of this podcast.  But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract.  But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others.  It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority.  But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion).  So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice.  If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.


McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis – where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.



Tim: 9/10 – I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all… if there’s a GOP Senate.

Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition

In this episode we chat about our the SCOTUS questions in the second and upcoming third presidential debates and then America’s favorite gameshow returns—Election Speculation: Celebrity Edition!

Direct download: Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition (mp3)

Merrick Garland at 212 days

  • Today as we record the show (10/13) marks day 212 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. In the interim we’ll be doing shows every few weeks.
  • Senator Tammy Baldwin (D-WI) speaking on the SCOTUS vacancy & the ones in her own state of Wisconsin: http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/11034

The Second Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates?

Lena: Was excited by the question (thank you, Beth Miller!), but had to review transcript to read the actual answers:

We have another audience question. Beth Miller has a question for both candidates.

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

CLINTON: Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

I hope that they will see their way to doing it, but if I am so fortunate enough as to be president, I will immediately move to make sure that we fill that, we have nine justices that get to work on behalf of our people.


RADDATZ: Thank you, Secretary Clinton. Thank you. You’re out of time. Mr. Trump?

TRUMP: Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.

But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.

Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.

So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.

I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?

It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.



RADDATZ: Thank you very much. We’re going to get on to one more question.

CLINTON: The question was about the Supreme Court. And I just want to quickly say, I respect the Second Amendment. But I believe there should be comprehensive background checks, and we should close the gun show loophole, and close the online loophole. COOPER: Thank you.

RADDATZ: We have — we have one more question, Mrs. Clinton.

CLINTON: We have to save as many lives as we possibly can.


The big surprise is that Clinton threw Merrick Garland under the bus (although she offered to call 9-1-1 for him a few seconds later).  It’s interesting that Citizens United has reached Roe v. Wade and Brown v. Board level of public understanding.  A case citation is enough for the public to know what a politician is talking about.  Despite Tim’s best efforts, Griswold isn’t there.


Adam loves reminding everyone of my favorite case! An uncommonly silly law!! I only hope The Donald considers it as “beautifully reviewed” as his SCOTUS short list. Tremendous.

What will happen at the Third Debate?


Looks like the third and final debate will have 15 minutes dedicated to the Supreme Court as well, at least as of right now

Ask more questions…. Diversity, breaking through obstruction, lower courts…

1 candidate will answer. 1 will not.



(1) Chris Wallace follows up with Trump who again tries to spend 10 seconds talking about the Court and then switches topics.  Wallace doesn’t like it when people completely ignore his question.  But Trump refuses to answer the question no matter how often Wallace presses.

(2) Clinton gives the same exact response she gave during this debate, perhaps leaving herself a bit more wriggle room to reappoint Merrick Garland.  The real question is whether Chris Wallace picks up on the fact that Clinton described Judge Garland’s resume as the wrong resume for a justice she would select.  That would make for a very interesting debate question, and Wallace is smart enough to do that.


If Wallace asks a generic SCOTUS question – which I expect to be more softbally… “The Supreme Court is important… discuss” then Trump gets a free pass like before. If he surprises me and asks a more substantive question (“name a case you want reversed and would you appoint justices to effectuate that?”) then I agree with Adam.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Robert Reich!

HRC wins, Senate goes to the Dems, House is GOP but only by 3 votes.

President Hillary Clinton nominates Barack Obama to the Supreme Court, who immediately pledges to reverse “Citizens United.” Senate Democrats make a rule change that allows Obama to be confirmed with 51 Senate votes. He is. (source: Facebook)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score Mr. Reich?


Agree on nuclear option because it will be needed for his confirmation (PS this will also double down on the SCOTUS nom enmity that started with Bork nom) but I think Mr. Reich is wrong on the former President “pledging” to reverse Citizens United. He may very well vote for that if before him on the Court, but there’s no way he’d say that in a hearing or anywhere else. He’d stick with tradition and play the “won’t comment on cases that may come before me” card. Reich gets a 5/10.



  1. Let’s not wait until January/February/March, PLEASE!
  2. Agree with Tim. The idea of litmus tests gives me a little pause and there’s no pledging to do X or Y, and we shouldn’t have nominees willing to say that given the facts and law drive decisions.
  3. May need to reform the filibuster for SCOTUS noms, as Tim suggests, so he could get confirmed by a simple majority instead of super majority as it stands for the Highest Court nominees right now.
  4. That said, I’m optimistic that as much light and distance will need to happen between the GOP and Trump that PERHAPS they’ll try to appear like they’ll get work done. So perhaps, even in that scenario, a few Rs would cross over to respect the President’s power to appoint justices to the Supreme Court so maybe don’t even need the super majority.
  5. I don’t think President Obama wants the job.


The entire reason that the GOP never went nuclear during the Bush years was to filibuster a Democratic president’s nominee to replace Scalia or Thomas.  The nuclear option will be triggered no matter what the other politics, which might involve “we’re going to roll the base on immigration, we need to fight on SCOTUS).

Clinton doesn’t really like Obama enough to nominate him, nor does Obama want the job.  William Howard Taft’s place in history is secure.


Advice & Consent 14: Post-debate SCOTUS talk and more election speculation

In this episode we chat about our surprise at no SCOTUS talk in the first presidential debate and then revisit America’s favorite gameshow: Election Speculation!

Direct download: Advice & Consent 14: Post-debate SCOTUS talk and more election speculation (mp3)

Merrick Garland at 195 days

  • Today as we record the show (9/27) marks day 195 since Judge Garland’s nomination to fill Justice Scalia’s seat.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved.
  • Today, Senate Democrats took to the Floor to demand consideration of Chief Justice Garland (and other judicial nominees)
  • Led by Senator Reid, Senators, including Booker, Klobuchar, Coons, Blumenthal spoke on Senate Floor demanding action.
  • Sen. Blumenthal introduced Resolution requesting Senate say in session until Garland has a hearing and vote.

The Debate: SCOTUS-free

The Donald’s shortlist gets even less short

Donald Trump expands list of possible Supreme Court picks – CBS News

The added names:

  • Sen. Mike Lee, R-Utah
  • Neil Gorsuch, a judge of the Tenth Circuit Court of Appeals
  • Margaret Ryan, a judge of the U.S. Court of Appeals for the Armed Forces
  • Edward Mansfield, a justice of the Iowa Supreme Court
  • Keith Blackwell, a justice of the Georgia Supreme Court
  • Charles Canady, a justice of the Florida Supreme Court–former congressman.  coined the term “partial birth abortion.”  Clinton impeachment manager.
  • Timothy Tymkovich, chief judge of the Tenth Circuit Court of Appeals–Decided Hobby Lobby. Strongly attacked Romer v. Evans.  Received 41 no votes as circuit court judge.
  • Amul Thapar, a judge of the U.S. District Court for the Eastern District of Kentucky (first federal judge of South Asian descent – appointed by Pres. George W. Bush in 2007)
  • Frederico Moreno, a judge of the U.S. District Court for the Southern District of Florida
  • Robert Young, chief justice of the Michigan Supreme Court (African American)

Still, nobody tweets like fellow (old) list member TX Supreme Court Justice Don Willett.

Profile in Courage 2016 Award Nominee Sen. Ted Cruz endorses The Donald… because of Sen. Mike Lee?

America’s favorite game show RETURNS: Election Speculation!


  • Trump wins in November and will be the next POTUS.
  • Dems win enough seats to tie the Senate:
  • 50-50 Senate with Dems in control (VP Biden breaks tie) from 1/3/17-1/20/17 at noon
  • GOP takes over Senate as of 1/20/17 at noon (VP Pence breaks tie).


  • Tim: Dems trigger nuclear option to confirm Judge Garland’s nomination. Republicans scream this is a coup. Prior to the beginning of the spring term, President Trump orders Capitol Police to prevent Justice Garland from entering 1 First St NE. Constitutional crisis commences. Tim hears all about it on the CBC coverage while in line for poutine in Montreal following the Habs-Leafs game.
  • Lena: Trump wins: Everyone screams, and the Democrats dig in. Try to reason with the Republican Senators who are also scared of a Trump presidency (silver lining: more cooperation between Senators?). Meanwhile, I’m figuring out how to “work from home” meaning that I’ll be working from another country, perhaps one of the ones with paid sick leave, equal pay or better child care policies.
  • Adam: I’ll be at the Supreme Court’s Pacific courthouse in New Zealand with Justice Ginsburg.

Advice & Consent 13: Election speculation

In this episode we present America’s favorite gameshow: Election Speculation! The roundtable doles out different SCOTUS nomination scenarios based on three electoral outcomes. Spoiler alert: one of them was followed with the sounds of children crying.





Direct download: Advice & Consent 13: Election speculation (mp3)

Hey, you’re listening!

Merrick Garland at 153 days

Oh my God Ryan Lizza, really?

Suggests a plotline of The West Wing for real life. Ragtag Gang and most of Twitter shakes head.

The Donald doubles down on “the list” until he doesn’t

Told Hugh Hewitt that GOP Senate should filibuster his nominee if he or she is not on “the list.” Also says there might be 4-5 more names added to it, stating “It byis possible there’ll be somebody outside of that list that has very similar principles, and I think you don’t want to totally preclude that.” Sooo… yeah.

What some conservative & libertarian folks are saying about Trump and SCOTUS… (see also: http://www.huffingtonpost.com/entry/conservative-legal-scholars-prefer-a-liberal-supreme-court-to-a-president-trump_us_57ade55fe4b069e7e504d4d3)

The Donald Advocates for Violence or Open Revolution over SCOTUS noms

And they say we don’t care…

HuffPo/YouGov Poll says that SCOTUS is second most important issue in this presidential election. Economy is at 45%, which party nominates the next SCOTUS Justice is at 30%. (25% for Democrats, 33% for Republicans, 36% for Independents)

SCOTUS Nominations Election Speculation

America’s favorite game show! The roundtable speculates mic drop style on these scenarios:

SCENARIO 1: HRC wins with D Senate coming in… what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

What does the GOP minority do with future HRC appointees? Filibusters?

SCENARIO 2: HRC wins with GOP Senate majority remaining intact…

what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

How does the GOP majority handle future HRC appointees? Will there be similar phony new rules on SCOTUS nominations?

SCENARIO 3: The Donald wins…

We know the Senate would run the clock out on the Garland nomination. We’ll assume a GOP Senate too. Who’s the likeliest Scalia replacement from the Trump/Heritage list? What do the Dems do in response? And, perhaps most importantly… Adam when we go in on Vancouver Canucks season tickets, would you prefer we sit in the 300s behind the visiting net for 2 periods or the most economical lower bowl option available?