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…

Advice & Consent 25: The Questionnaire

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.

 

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