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Month: January 2017

Advice & Consent 22: Nominee Deux

Advice & Consent 22: Nominee Neil Gorsuch

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

Advice & Consent 22: Nominee Neil Gorsuch


Direct download: Advice & Consent 22: Nominee Deux (mp3)

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

Advice & Consent 21: The SCOTUS shortlist

Regarding Episode 20? Yeah, 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

Direct download: 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

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.