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Month: April 2016

Advice & Consent 07: Nominations Past Vol. 1 – Rehnquist/Powell 1971

On this episode… With the airing
of Confirmation on HBO, the ghosts of nominations past have
been brought back to the public eye. The next several episodes
we’ll talk about some of them.


April 28, 2016…


Today’s the day CJ Garland should have started his confirmation
hearing. 42 days: that’s the number of days on average for the past
30 years that Supreme Court nominees have waited for a Senate
Judiciary Committee hearing. And since President Obama nominated
Chief Judge Merrick Garland on March 16, that means he should have
started the confirmation process April 28th (today)!

Nominations Past Vol. 1 – Rehnquist/Powell 1971


Extended shownotes from Adam’s amazing overview are at

NEXT WEEK… Volume 2: Robert Bork (1987).

Advice & Consent 06: What does a 4-4 Court mean?


What does a 4-4 Court mean?



  • Fisher v. University of Texas, the affirmative action case.
  • Whole Woman’s Health v. Hellerstedt (abortion in Texas)
  • United States v. Texas (immigration DAPA/DACA) (what is it with Texas?)
  • Criminal procedure cases–Supreme Court rejecting a hem wholesale so far
  • Class action cases–ditto


  • Maybe not often are 4-4s issued, but even in cases of a fully staffed SCOTUS recusals can cause issues. I
  • Issues are being taken up at the Court and questions being asked.
  • Justices coming out of the gate saying “no big deal; we got this” to shore up confidence in the Supreme Court
  • Justice Kagan saying that they’re trying to avoid deadlocks (Supreme Court is Working Hard to Avoid Deadlocks, Kagan Says) trying to only pull cases where they won’t be closely split; so decisions all the way through – from cert to final judgement are implicated
  • Zubik supplemental briefing
  • How long will this will go on?
  • Examples of how what the Court does or does not do actually impact a number of issues: business, 4th Amendment issues – local law enforcement


  • On a case-by-case basis, it can swing either way substantively depending on your point of view of the Court of Appeals holding.
  • Untenable in the medium and long term because it hampers the Court from its role in arbitrating Circuit splits.
  • This is not ideal and is fixable based on decades of precedent. If we have a vacancy, the President nominates and the Senate considers and votes. Period.

Advice & Consent 05: Trump's list, Grassley's chairmanship and tortured NFL draft analogies


An all Mic Drop edition

Lena: Donald Trump’s “WHAT?” moment.“I’m going to announce that these are the judges, in no particular order, that I’m going to put up,” he told The Washington Post last week. “And I’m going to guarantee it. … Because people are worried that, oh, maybe he’ll put the wrong judge in.”

The “wrong judge”? WHAT? Plus the Heritage Foundation’s “wish list

Adam: Elephant in the room when speaking of Sen. Grassley and his odd comments about Roberts, his qui tam line of questioning at hearings. (BTW, If you want to know about qui tam, the Supreme Court is actually hearing a qui tam lawsuit next week, Universal Health Services v. United States ex rel. Escobar. See )

As people who followed the Iowa Senate race last year know, Grassley is not a lawyer. No requirement that Judiciary Committee members be lawyers. Sen. Dianne Feinstein, another long-time member of the Committee, is not a lawyer. But it IS unusual for a Judiciary Committee chairman not to be a lawyer. I went back to the Wilson administration (using Wikipedia, admittedly), the first time the Committee held a hearing on a nominee, and ALL the other chairmen (all men) were lawyers.

Not to say they were all winners. From 1956-1987, the Committee had a segregationist as chair, excluding 3 years in the 70s when Ted Kennedy was chair.

It is possible to learn a lot about the law by being involved in legal issues for years, but Grassley has had other priorities, Ike oversight, chairing Finance Committee.

Tim: Semi-attenuated #sportsball analogy: there are parallels between SCOTUS nominations gone wrong and (poorly) drafting NFL quarterbacks… hi Browns, hi Bills, hi Jets… hello GOP Presidents. See the list of “mistakes” here.

Advice & Consent 04: Wait, we take it all back



Direct download: Advice & Consent 04: Wait, we take it all back (mp3)

The Chatter


Today’s Topic: Reacting to the GOP Senators’  “nevermind, we take it all back”

Judge Garland has met with 17 Senators as of today, the latest being Judiciary Committee member Sen. Whitehouse (D-RI). However, the cracks we saw last week in the GOP seem to have been puttied and plastered over as a few have backtracked on even meeting President Obama’s Supreme Court nominee.

From NYT:

Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

Carrie Severino, chief counsel for the Judicial Crisis Network: “These meetings are non-events, no matter how badly the White House wishes the opposite were true,” she said in a statement. “The only reason we hear anything about these courtesy meetings is that the White House is desperate to spin every act of political theater into a sign of life for the nomination.”


Despite the hyperbole, Senator Collins noted on MSNBC that 14 GOP senators are willing to meet with Judge Garland, stating “I view that as an evolution.” What does this mean for the nomination? Is this a deathblow, or just part of the political back and forth that is just heating up as the issue percolates back to the Senators’ home states?

A running list we’ll keep updating:

List of GOP Senators willing to take a meeting (or have already met):

  • Kelly Ayotte, N.H.
  • John Boozman, Ark.
  • Bill Cassidy, La.
  • Susan Collins, Me.
  • Jeff Flake, Ariz.
  • Charles E. Grassley, Iowa
  • James M. Inhofe, Okla.
  • Ron Johnson, Wis.
  • Mark S. Kirk, Ill.
  • James Lankford, Okla.
  • Jerry Moran, Kan.
  • Lisa Murkowski, Alaska
  • Rob Portman, Ohio
  • Jim Risch, Idaho
  • Mike Rounds, S.D.
  • Marco Rubio, Fla.
  • Patrick J. Toomey, Pa.

GOP Senators who support holding hearings and/or a vote

  • Susan Collins, Me.
  • Mark S. Kirk, Ill.

Number  of GOP stonewallers (no meetings, no hearings, no way): 45

Source: NYT

Lena: The lame duck argument

Adam: enthusiasm gap

Dan: Mr. Johnson from Wisconsin’s got your back Wisconsin

Tim: External versus internal pressure

Mic Drop

Lena:  “What?” and Chief Justice Roberts fails purity tests.

Adam:  What’s Judge Garland doing to keep busy? Probably not murder boards.

Dan: Garland would bring it all back to 2006.

Tim: Iowa high schooler Jake Smith drops a mic on Sen. Grassley.