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Month: February 2017

Advice & Consent 25: The Questionnaire

Judge Gorsuch’s questionnaire answers for the Judiciary Committee brought Washington to a halt this week… oh wait, is there anything else going on that can supersede a Supreme Court nomination process for political coverage these days? Take a break from firings and international intrigue with a deep dive into the judge’s record on siding with corporate interests with us too…

Direct download: Advice & Consent 25: The Questionnaire (mp3)


The Questionnaire

Senate Judiciary Committee releases the public portions of Judge Gorsuch’s questionnaire (PDF).

Any highlights pop out to you?

Lena: I’m a process person more than anything and so I jumped to the end and looked at Q26. They say “Describe your experience in the entire judicial selection process…” I outlined last week what had been written about his meetings which is essentially regurgitated. He highlights conversations with:

  • Leonard Leo, Federalist Society
  • Donald McGahn, White House Counsel
  • VP Pence
  • Steve Bannon (Sr. Advisor to the President)
  • Mark Paoletta (Counsel to VP)
  • Reince Priebus (Chief of Staff to President)
  • Makan Delrahim (Deputy Counsel to President)
  • James Burnham (Sr. Associate Counsel to the President)
  • “and may have had other communications with the individuals listed above, or groups of them”

Adam: Judge Gorsuch has a very Republican record. This is not always the case. It was the case with Kagan (a Democratic record) and Alito (a Republican record) but it is not inevitable. Sotomayor was appointed to the bench by George H.W. Bush. Roberts had environmental cases in his pro bono record, while Gorsuch apparently did no pro bono in 16 years before becoming a judge. That’s a problem. It’s also a problem that Gorsuch will follow the precedent of every nominee since Bork and not talk about controversial issues that might appear before him unless he’s previously written on the topic.

Tim: I think the questionnaire needs to ask questions a little more specifically regarding the “litmus test” question (26c). It defies credulity that Judge Gorsuch wasn’t vetted directly on a variety of issues, most notably Roe. If he hasn’t been vetted, then Trump broke a major campaign promise. So let’s assume he was… the question has a hole you can drive a truck through: [insert question here]

It would be painfully easy to ask a question by a third party that was along the lines of  “Tell me what you think of Roe.” not “Would you vote to overturn Roe?” and still be able to answer the last question of the questionnaire truthfully. I mean, this is basic lawyering stuff.

Neil Gorsuch and the issues, volume 1 – Corporate Interests/Big Business BFF

Lena: Judge Gorsuch wrote a controversial dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016).

HIts the Judge Gorsuch highlights:

  1. Siding with big employers, not workers
  2. Disdain for Chevron
  3. Contorted “textualism”
  4. Dehumanizing tone

Judge Gorsuch’s Opinion in Whistleblower Case Reveals the Dishonesty of his Alleged Strict Textualism (Article/blog post by Jason Zuckerman)

Tim: Judge Gorsuch is another member of the “class actions are the bane of democracy!” crowd. The argument tends to be, “they’re really big and they’re too easy to win which is bad!” It’s sort of the powered up version of the arguments you hear on tort reform… these are frivolous cases and it hurts the economy… yadda yadda yadda… hug a small business owner and call it a day.

In Gorsuch’s case, he pulls this argument in the context of class actions over securities fraud. He goes so far to suggest innocent securities companies all over the country are being sued in class actions, and frivolously at that. Because they’re all frivolous. Ok. Sure.

It’s all couched in an attempt (that failed by the way) to require class action plaintiffs to prove causation between the securities fraud and their loss just to get the class certified. Mind you… these plaintiffs still need to prove it down the line to win… but this is a cynical method to stop class actions from happening before they start. The bottom line, he was wrong on this, and it shows his stripes.

Best read: No Loss, No Gain, Legal Times, Jan. 31, 2005. (“free ride[s] to fast riches.” and that the cases are “frivolous claims”  that are “affecting virtually every public corporation in America at one time or another and costing business billions of dollars in settlements every year.”)

Adam: 10,000 foot view. How much difference will Gorsuch really make on the Court in terms of its corporate record? How many nominees have a demonstrated commitment to justice for anyone besides corporations/the big guy. We have a bunch of Harvard/Yale Law School justices who were summer associates at large law firms and then either went directly into government or worked for large law firms first. They often rule in favor of corporate interests by 9-0 even when lower courts came out differently from then.  The exception is Ginsburg, but on non-civil rights issues, she has shown remarkably little solicitude for litigants taking on the powerful. If you learned about personal jurisdiction more than 5 years ago, everything you know about general jurisdiction is now wrong because Ginsburg was horrified at the idea that a corporation could be haled into court somewhere where they’re not doing business. She’s repeatedly ruled to send cases to pro-corporate arbitration.

I’ve been through the justices, and the last Supreme Court justice who actually had a demonstrated record of fighting for the little person was Justice Goldberg, who was general counsel for labor unions, and served for 3 years on the Supreme Court in the 1960s before LBJ  tricked him off the Court so he could appoint his pal Abe Fortas in his stead.


Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate

Stop us if you’ve heard this one before… a President walks in a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we’ll have to be more specific? President Trump is at it again with his “so-called judges” remark as his travel ban EO works its way through the lower federal courts … perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.

Direct download: Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate (mp3)


So-called judges and framing the Neil Gorsuch debate

POTUS and the Courts

Trump lashes out at ‘so-called judge’ who temporarily blocked travel ban (WaPo)

Are the President’s comments about the federal courts dangerous?

Lena: Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:

  1. Degrading systems of justice
  2. Creating mistrust
  3. Signaling to supporters on individuals, potentially causing personal harm
  4. Distracting us from other dangerous stuff he’s doing

Tim: It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.

Adam: To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence.  I wrote a blog post explaining why here.

Travel Ban appeal before the 9th Circuit

Many of us listened in on this…

Framing: Trump’s vision of the courts.

Hey, Democrats, forget Gorsuch. Target Trump over the Supreme Court.

Lena: This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.

How Trump Chose His Supreme Court Nominee (Adam Liptak, NYT, 2/6/2017)

  • Judge Gorsuch is really well known, with degrees from Columbia, Harvard, Oxford.
    • Worked against him b/c Trump was trying to make a more anti-establishment pick (which seemed to indicate an aversion to the Ivies.)
    • Concern about his record and releasing his name early to create a backlash given how conservative he is
  • Trump
    • Wanted the best; most Scalia like (as if it’s still the 1980s)
    • Wanted to be assured it wouldn’t be a mistake (a la Justice Souter and Chief Justice Roberts)
  • Vetting
    • 1/5 Gorsuch met w/McGahn for personal vetting; then met with Vice President-elect Mike Pence (“particularly involved”); Reince Priebus(White House chief of staff); Stephen K. Bannon (chief strategist); Mark Paoletta, (VP Pence’s counsel); and Don McGahn (WHite House Counsel)
  • Gorsuch emerged as the “clear winner”

This entire process raises concerns

  1. Independence
    • What does Trump think he’s getting out of this – litmus test, loyalty, EOs
    • Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?
  2. What about his writings did they love?
  3. How is Gorsuch going to show a strong check/independence when the President is undermining the entire judiciary


Adam:  we’re really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate’s decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.

This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life.  Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.

But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people’s will?

Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.


Direct download: Advice & Consent 23: Neil Gorsuch, Nuclear Nominee (mp3)

Neil Gorsuch, Nuclear Nominee: the record

AFJAC fact sheet (PDF) to tide you over. More in future episodes.

The Reaction DEMS

Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it… 60 votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly fucked with the norms,” and (with apologies to Good Will Hunting)…. “Do you like apples? HOW DO YOU LIKE THEM APPLES!”


Universal, fawning, near drooling adulation and… “Hey! This 60 vote thing is bullshit. Let’s vote! We need 9! #doyourjob”

Past votes for SCOTUS seats (US Senate)

Trump’s Supreme Court Reality Show Was Not a Distraction, It was a capstone to a yearlong campaign to degrade the law and the Constitution. Dahlia Lithwick

SCOTUSBlog review of Gorsuch’s cases on key areas

Process update

The path ahead for Neil Gorsuch, Trump’s Supreme Court nominee (WaPo)

Filibuster and the nuclear option


Adam: My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster.  There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote.  It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore.  I think even Ds up for reelection will have to worry about being primaried if they break.  

Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years.  What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland.  Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.

QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record?  Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one?  The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG).  Here’s a possibility:  http://www.acslaw.org/acsblog/draft-prado-effort-launched

Lena: This any nominee should be able to meet the 60 vote threshold – an indication the person receives bipartisan support which is incredibly important now.

Layers to consider:

  1. Support/Oppose Nominee
  • Ds Positions:
    • Give Garland vote 1st
    • No because this is a stolen seat
    • Review the record, give full hearing and up-or-down vote
  • Rs Positions:
    • Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months
  • Factors:
    • Institutionalists who don’t want to change rules
    • 2018 Senate relections (8 Rs, 25 Ds (23 Ds, 2 Is who caucus w/Ds)
    • 2020 aspirations
  1. Filibuster Reform (change threshold from super majority to simple majority)
  • Ds more likely than ever to do this
  • Some Ds will be harder to convince
  • Probably a matter of timing
  • Rs will likely change filibuster rules then

Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before.  And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions).  Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.

Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.

We’re in a new SCOTUS paradigm. With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.


What Usually Happens & When for Supreme Court Nominees?

Based on Supreme Court nominations since 1975.

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