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Month: March 2017

Advice & Consent 29: A Hearing Wrap-up & a Political Assessment

The Senate Judiciary Committee hearings have concluded, and we’re now counting votes. What’s the ragtag gang of the usual suspects (ha, that’s “RGOTUS”) political assessment? We’re less than a week away from the committee vote and less than two from the promised floor vote.

Direct download: Advice & Consent 29: A Hearing Wrap-up + a Political Assessment (mp3)

The RGOTUS this week

Tim bumps into Sen. Wyden at the airport and chats about SCOTUS at the departures  level at PDX (pro-tip: that’s the spot to get picked up when in the Land of Sunshine and BunniesTM). Spoiler alert: he’s opposing Gorsuch. Lena goes on another law-talky podcast. Adam pillories one of the worst op-eds in NYT history.

Hearing wrapup

A few minutes of a Lena solo (eat your heart out Neil Peart!)

Political Assessment


  • Republicans need to decide if they’re willing to go nuclear to put Neil Gorsuch on the Court.
    • Are any Rs not up for this fight, but also willing to publicly side with Ds and against the vast majority of the R electorate?
    • Do any of their names rhyme with Skritch Buconnell?
  • Democrats need to decide if opposition is “worth it” enough to burn the filibuster now, even if it is easily circumvented by the nuclear option.
    • Do red state Ds up for reelection perceive a threat to their chances if they oppose?
    • Do D’s generally feel pressure to oppose from the increasingly active base?


Given that one of the main ways that this seemingly foregone conclusion of cloture vote fails, nuclear option invoked, Gorsuch confirmed by majority vote will be derailed is by a last-minute deal between Dems and Rs to preserve the filibuster for a future nominee but not use it on Gorsuch, I want to talk about the last time such a deal happened.


In 2001-02, Democrats had control of the Senate and dealt with a slew of some of the most out-of-the-mainstream circuit court nominees, allowing several through but blocking 2 in the Judiciary Committee. Dems lost their majority in the ‘02 election, and decided to filibuster the nominees they had blocked as well as several other nominees. Fortuitously, at the same time, Robert Caro published Master of the Senate, third of the fourth in his Years of Lyndon Johnson series, which detailed the passage of the Civil Rights Act of 1957 with LBJ as Senate Majority Leader. No civil rights bill had been passed since 1875 and the Eisenhower administration was trying to woo African Americans back to their traditional home in the Republican Party, which they had been leaving as they moved north and after Truman integrated the army and Ds put a civil rights plank in their platform in ‘48 and the administration set its sights on passing a civil rights bill. Caro described a trick to get around the filibuster by having the VP, the president of the Senate, Nixon at the time, declare that the filibuster was unconstitutional and then have a majority of the Senate agree with that ruling. LBJ eventually defused this action and passed the bill with a large majority of both Ds voting for it, but Trent Lott, who was almost the majority leader in 2003, but had to step aside after praising Strom Thurmond’s 1948 segregationist run for the president, said that using this method to get around the filibuster would work, but it would be the “nuclear option” because it would blow up the Senate. Dems did not heed Lott, and filibustered more than 10 nominees.


In the 2004, Rs expanded their majority from 51 to 55 and immediately suggested that they would go nuclear if Democrats filibustered again. This was particularly important because Rehnquist had been diagnosed with cancer and a SCOTUS vacancy was likely. The Senate spent the first few months confirming less controversial nominees but ran out of nominees to confirm by May at which point then-Senate Majority Leader Bill Frist scheduled a confirmation vote on one of the previously filibustered nominees. Both sides were lobbying very hard, and it became clear that there were 49 Republican senators in favor of the nuclear option, and Arlen Specter (a Republican at them time) was the only one undeclared. Democrats were pretty sure that Specter–who was Judiciary Committee chairman at the time and would lose the seat if he went against the rest of his caucus–would vote for the nuclear option if the vote were called. So 14 senators, 7 Rs and 7 Ds came together to say that they would not vote for the nuclear option (meaning there were less than 50 votes for the nuclear option) and would not vote to filibuster a nominee (meaning any filibuster vote would fail) unless the group (which dubbed itself the Gang of 14) came to an agreement that there were extraordinary circumstances meriting a filibuster.


A few of Bush’s nominees did fall by the wayside, although some were definitely not due to the deal and some were only questionably due to the deal. The ones that failed were Miguel Estrada for the D.C. Circuit, Terry Boyle for the 4th Circuit, Charles Pickering for the 5th Circuit, Henry Saad for the 6th Circuit and William Myers and Carolyn Kuhl for the Ninth Circuit. The ones that went through directly due to the deal were William Pryor for the 11th Circuit, Janice Rogers Brown for the DC Circuit, and Priscilla Owen for the 5th Circuit.


Now, everyone knew that the Rs on the Gang of 14 would never agree that there were extraordinary circumstances, so that the filibuster was gone. But the thought was that Ds had no leverage, and the best they could do was keep the filibuster alive (although on life support) for another day. Now that this other day has come, with Republicans stealing a Supreme Court seat, I don’t see Democrats thinking that if they give up on the filibuster here, they will ever be able to use the filibuster at a future time when there are extreme circumstances.



Rs inclined to oppose (e.g. Flake, Murkowski, Collins, Graham, Heller) but I think McConnell will decide and everyone will fall in line. But they’ll be blaming the Democrats for causing this. The other option, however, is that they reject the nomination and come back with someone who is more moderate.


Some Ds are worried but have a few factors: 1) inevitability, 2) energizing the base. Some Ds think Trump will only nominate someone worse during the next vacancy. And there’s fear there could be 2 or so more vacancies. So I think they’re doing some calculus, which is something that’s been top of mind for folks since: 1) Gorsuch was nominated and not Pryor, 2) they are gambling with what might happen in the future and the positioning of the President, Senate, etc.


Moderate Ds who’ve already come out opposed – and are really upset with Gorsuch’s record: Senators Casey, Carper, Nelson. I think there is some momentum that’ll build as this continues. The base is upset, and while I’m not sure the # of calls rival, say DeVos’ opposition, it seems like if they don’t fight they’ll see this as a big victory – and a lifetime appointment – for Trump.



Agree with Lena… Nobody will change their vote, much less will elections swing, in 2018 over “losing” the filibuster. No. One.


A deal is being bandied about as a non-nuclear end game scenario and that’s just fantasy, unless Ds are gullible enough to believe that Rs would stand by it. The only possible one would be to have a withdrawal and a nomination and approval of Merrick Garland and a promise by Ds to stand aside for Gorsuch should another opening present itself. It sounds like a good deal, but it’s a bad one for both sides. AND LOOKS TOO MUCH LIKE A WEST WING PLOT LINE PEOPLE!

It’s hard to see this ending in any scenario other than filibuster, failure to achieve cloture, and then the nuclear option. The consequences of that… are probably for another show.

Advice & Consent 28: Gorsuch before the Judiciary Committee

The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!

Direct download: Advice & Consent #28: Gorsuch before the Judiciary Committee (mp3)

Gorsuch before the Judiciary Committee LENA GIVES A RUNDOWN

Day 1: As anticipated, all introductions.

  • Grassley opens
  • Gorsuch welcomes himself and his family (awkward hug w/wife), introduces clerks, assistant, others
  • Grassley Opening:
    • lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.
    • Vote 4/3
    • Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)
    • Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers
    • Ends w/a Scalia Quote
  • Feinstein Opening:
    • First to invoke mistreatment of Chief Judge Garland
    • Mentioned process: litmus test issues
    • Laid groundwork for threads talking about corporate power (TransAm), Chevron, campaign finance, Roe, originalism
  • Bounced back and forth b/t R and D Committee members
    • R themes: Gorsuch won’t answer Qs; Gorsuch is qualified
      • Biggest theme: Ds shouldn’t make this political
    • D themes: Garland shadow; judicial independence; litmus tests; dark money; Roe; Chevron

Day 2: Round I questions, 30 minutes/Senator

  • Grassley: more Scalia, trying to inoculate Gorsuch vs judicial independence line of inquiry; myth of unanimous decisions;
  • Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about
  • Hatch: hate Chevron so loves Gorsuch; mentioned bipart support
  • Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ
  • Graham: pats himself on back mostly
  • Durbin: mentioned complicity, Gorsuch’s mentor Finnis
  • Cornyn: talked a lot about law school duration; civic engagement; originalism
  • Whitehouse: money in politics, dark money; anschultz
  • Lee: one of the lawyers “in teh well” in front of Gorsuch
  • Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;
  • Cruz: romance and basketball
  • Franken: Mr. Maddin case; Garland’s feelings
  • Sasse: mutton busting
  • Coons: Complicity and rel liberty
  • Flake: jokes and trout
  • Blumenthal: Trump and judicial independence
  • Crapo: dormant commerce clause; Chevron
  • Hirono: Korematsu
  • Tillis: ?
  • newSenatorKennedy: ?

Lena’s Take Aways:

  1. Rs are chastising Ds for making process “political”
  2. Bar is low: Graham expected Judge Judy
  3. Questions and technique of questions matter
  4. So many themes to pick up, was the D message diluted?
  5. Different Versions of Gorsuch – See examples of folksy Gorsuch here


1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.

2 – Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.

3 – The media will be coronating him if they haven’t already started, largely because of #2.

4 – A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?

5 – Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.

6 – I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.

7 – Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.

8 – Best D: tie (Klobuchar and Franken). Next: Blumenthal and Whitehouse.

9 – Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.

10 – “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.


Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdf Strict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals like Akhil Amar have taken up the originalist mantle).

1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They’ve either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.

  1. The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it’s senators from the party that controls the White House.
  1. Right now, senators act outraged when a nominee they don’t like won’t answer questions, but turn a blind eye when nominees they do like do the same thing.
  1. On the bright side, just because the job of judging should be apolitical, that doesn’t mean the job of selecting judges should be. Unlike Lena, I don’t think there is anything wrong with litmus tests and surely they are used. It’s ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It’s the nature of having elected officials in charge of judicial selection that they will use litmus treats. What’s wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren’t used and would be wrong if they were used.



Tim’s Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.

We will only do another pod this week if something unexpected happens – which, by definition, we don’t expect

We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.

Advice & Consent 27: Judiciary Committee Hearing Preview

The Senate Judiciary Committee is scheduled to question Judge Gorsuch next week. What’s the process look like and is there a likelihood of high drama on the Hill? The ragtag gang of the usual suspects previews the hearings!


Direct download: Advice & Consent 27: Judiciary Committee Hearing Preview (mp3)

(Still) not much news, but it’s warming up

Gorsuch continues to meet with Senators and is undoubtedly in full “murder board” prep.

Hey some other people think there’s an argument to postpone the Gorsuch process because of lingering Russia allegations against the administration. (Slate | Daily Kos)

New York Times reports connections between Gorsuch and “secretive billionaire” (oooh) Philip Anschutz, including the Colorado media mogul, Federalist Society backer and random sports team owner lobbying for Gorsuch’s 10th Circuit seat, among other things.

CRS report on Judge Gorsuch’s Record.

People impacted by Judge Gorsuch’s decisions came to D.C. today (3/15) for a press conference. Attending were 1) Alphonse Maddin, who was the trucker in the previously discussed who had been fired from his job at TransAm Trucking in 2009 when he nearly froze, 2) Patricia Caplinger, who sued Medtronic, when a medical device called Infuse was implanted in her in a way that was not approved by the FDA in 2015, and 3) Katherine Hwang whose mother, Grace, was fired from her teaching position at Kansas State after requesting accommodations after returning to work from leave for cancer treatment. The Hwang family also wrote an op-ed that was published in the San Francisco Chronicle.

Senator Warren joined groups opposed to Judge Gorusch at a rally outside the Supreme Court.

Followup from last pod

You may recall us highlighting the UPS gender discrimination case where Judge Gorsuch dissented, suggesting the lack of universal gender discrimination in the office was a reason the plaintiff shouldn’t get to a jury. The Tenth Circuit rejected that, following the settled concept that just because not everyone in a group is discriminated against doesn’t provide proof there isn’t discrimination going on against some of them. Tonight as we record, a federal district court in Hawaii used very similar logic to reject an argument of the Trump administration that the Muslim ban can’t be a Muslim ban because it doesn’t apply to all Muslim majority countries. Just a reminder… Judge Gorsuch was on the wrong end of this argument, as was the Trump administration.

Judiciary Committee Hearing Preview

Overview of the Process

What “always” happens/what we should definitely expect

  • (i.e. softballs from GOP and hardballs from Dems)

What are things that would make this hearing go differently?

  • (a few ideas)
  • The Trump factor – attempts to secure a promise of independence (probability: high)
  • Judge Gorsuch Borks himself (probability: exceedingly low)
  • The Garland factor – attempts to say “you’re potentially SCOTUS worthy, but we won’t consider you until Garland gets a hearing” (probability: possible mention, but unlikely to go this far)
  • The snooze factor – OMG How Do You Dissect Chevron, Class Actions, Arbitrations and Not Make People Sleepy factor – attempts to really get at the heart of Gorsuch’s troubling record on topics that make it hard for people to bring cases to court and that potentially dismantle administrative agency authority (probability: moderate)
  • The Russia factor – calls to scuttle all lifetime appointments until Russia allegations are resolved (probability: unclear but low)
  • The Other News factor – there are so many things happening, so will this receive the coverage such an event deserves? (probability: high)


Happy 1 year podaversary Advice & Consent (3/17… go have a green beer to celebrate.)

Look for a show Tuesday night after the first round of questions… then another show as appropriate, but certainly a hearing wrap up the week after.

Advice & Consent 26: Gorsuch on Social Issues (and more)

Not much news.


Gorsuch quietly meeting with Senators.


“Hey I’ve got an idea that DEFINITELY wasn’t a part of a season 5 episode of The West Wing!” (WaPo)


Hearings scheduled for week of 3/20 (The Hill) – “hearings will begin March 20, with questioning of Gorsuch scheduled to start the next day.”


The Gorsuch record on social issues (and more)


– This ep we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process.





  1. Can we believe Trump this time? Trump’s litmus test – overturn Roe


  1. Might not have ruled on abortion, but certainly has feelings he writes about in his spare time. (Adam will discuss more) Still has feelings he writes about while he’s on the bench, even though question of abortion he needed to answer.


Planned Parenthood Ass’n of Utah v. Herbert (839 F.3d 1301 (10th Cir. 2016)


Herbert, Republican Governor of Utah, ordered the state to stop federal funding ($272k) to PP Assoc. Of Utah.


10th Cir. granted a preliminary injunction to PP, saying PP Assoc. Of Utah was operating lawfully (in response to those fraudulent tapes) and the Governor’s personal objection to abortion was the motivation for blocking federal funds, and the Governor was violating the constitutional rights of PP Assoc. Of Utah by refusing federal funding


Neither PP nor Utah sought en banc review of the panel decision, BUT Judge Gorsuch dissented and would have granted en banc review and would have let the Governor defund PP


Judge Briscoe wrote separately (from the majority opinion) noting how extreme Judge Gorsuch’s position was – saying it was “unusual” “extraordinary” for him to do this sua sponte. She also went on to say that Gorsuch “mischaracterized this litigation and the panel decision at several turns.”


Okay, fine. But what about contraception? Ah, that religious liberty gets some respect….


  1. Bonus if you’re a big ol corporation. Not so good if you’re their minimum wage workers.

Hobby Lobby Stores, Inc. v. Sebelius (723 F.3d 1114 (10th Cir. 2013)) (en banc)  


Hobby Lobby, a closely-held corporation, thought that as part of their employer-sponsored health insurance plans they shouldn’t have to offer contraception because it conflicted with its religious beliefs.


Judge Gorsuch was part of a majority that said the Dept. of Health & Human Services couldn’t require such coverage. Saying corporations are people exercising religion for purpose of the Religious Freedom Restoration Act. This was upheld 5-4 in the Supreme Court.


But Gorsuch wrote a cute concurrence note to declare how much further he would go then the already conservative ruling in the 10th Circuit – something the Supreme Court didn’t even do in its decision. He said that not just corporations, but individual owners, could challenge the contraceptive mandate. Saying that he felt peoples religions trump individual rights and health care for women.


“All of us face the problem of complicity. All of us must answer for ourselves whether and

to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”


  1. Cool. You can have your religious liberty, but let’s not make anyone have to do any paperwork so someone can get their medical care.


Little Sisters of the Poor Home for the Aged, Denver Colo. v. Burwell, 699 F.3d 1315 (10th Cir. 2015)


The Little Sisters said that it would be too burdensome for them to opt out of providing birth control coverage by signing a form that would then trigger other provision for contraceptive coverage through their insurance provider.


The 10th Circuit said the opt out accomodate was enough.


Judge Gorsuch joined a dissent from denial of en banc review where he said they should grant review to rehear the challenge because he believed that signing a form was a substantial burden to the Little Sisters’ free exercise religion.


Where does this go? Well, I raise these because in a weird concurrence and a dissent, Gorsuch chose to talk about this even though he didn’t have to. When one gets on the Supreme Court, they become more themselves. I believe Justices can differ from their decisions as judges, but these examples make me quite certain we can believe Trump.



First, Gorsuch is clearly a philosopher. The basic rule is that people ideologically opposed to the president are suspicious of philosopher-nominees. Democrats who embraced natural law ideas during the 1960s when the Court in Tim’s favorite case, Griswold, cited the Ninth Amendment as one of the possible sources of a constitutional right to privacy. But after 10 straight GOP nominees, Democrats were very scared of Clarence Thomas’ writing about natural law and natural rights as important reference points when interpreting the Constitution. As Lena can tell you, then-Chairman Biden spent much of his first round of questioning trying to pin down Thomas on how he would use natural law to interpret the Constitution. And this makes sense. Natural law and natural rights are powerful theories. They can lead to ideas such as a constitutional amendment is unconstitutional if it violates pre-existing natural law/rights, and if your ideological opponent is using natural law, they can do a lot of damage to the Constitution that you believe in.


So, here we have Gorsuch, a Rhodes Scholar, who wrote a whole book on the Constitution and assisted suicide and euthanasia. And his view, based on both law and philosophical ideas about the meaning of life, is that there is no constitutional right to assisted suicide. That, by itself, is not the most controversial statement in the world. The Supreme Court has held the same thing, and there wasn’t a big fight about it.


But what does it mean that he’s written such a book? One, that he cares deeply about issues of what the Constitution says about life. Two, that his views aren’t based simply on precedent, on originalism, or other things judges base their decisions on. Their based on philosophical views on life. Not only that, but strangely, he said that the person who wants to die isn’t the only person’s rights at stake (such as a person who doesn’t really want to die but is pressured by family members). The two-persons are involved argument is usually made in the abortion context (when the other person people usually mention is the fetus).


Now Gorsuch expressly tries to separate what he writes in his book from what he thinks about abortion, saying, for instance, that since Roe decided the fetus does not have constitutional rights. But that’s pretty hard to understand. If you’re going to say that a hypothetical person who really doesn’t want to die but evades all the safeguards in a Death with Dignity Act in order to die because of family pressure has rights that have to be considered along with people who actually do want to die must be considered, are you really going to say that a pregnant woman’s views outweigh those of the fetus, the father of the fetus? What about the exact same situation? Where a pregnant woman or girl is being pressured by family to have an abortion but doesn’t want to? Shouldn’t that invalidate all abortion laws based on Gorsuch’s natural law/rights argument?


To cut to the legal realism argument, however, I think it’s pretty clear that Gorsuch wrote this book to signal his views on abortion and other controversial social issues while having plausible deniability should he be nominated for the Court.




Lena: A little big about John Finnis, Judge Gorsuch’s advisor: https://www.theguardian.com/law/2017/feb/03/neil-gorsuch-mentor-john-finnis-compared-gay-sex-to-bestiality



I’d like to focus on a gender discrimination case…  Strickland v. UPS


Carole Strickland, a salesperson for UPS sued for sex discrimination. She had a tough time of it. Shortly after a bad breakup, her bosses put her through the ringer… insisting (against her initial wishes) that she take medical leave. When she returned, they subjected her to micro-managy meetings no one else had to go through despite meeting or nearly meeting every sales quota thrown at her. At least one male member in the area ranked worse than her and never had to go through similar treatment. Co-workers said she was treated differently than the other men – for instance she couldn’t get important questions answered that would have helped her perform her job, while her male co-workers got their questions answered without a problem. The record showed pregnancy leave was frowned upon, and only reluctantly granted due to federal law. This was the environment that was the basis of the sex discrimination complaint. And the 10th Circuit majority said the record contained enough for the case to go to a jury.


But not Judge Gorsuch. In his dissent he wrote no reasonable jury would have found sex discrimination based on the record. This despite a whole host of things that suggested Ms. Strickland’s poor treatment could have been gender-based and that a jury should be the place to suss that out. Judge Gorsuch hung his hat on the testimony of the one other woman in the office who said she wasn’t treated differently than the plaintiff. But under settled 10th Circuit law that’s not enough… just because women aren’t universally discriminated against doesn’t mean one or more women aren’t.


It’s not that the record definitively demonstrated sex discrimination… but Judge Gorsuch’s colleagues held… and I would posit, most reasonable legal minds would concur… there was enough there for a jury to weigh the facts.


And that’s a problem. Judges are gatekeepers and have to do some degree of factual assessment before trial, but that bar is very low and favors plaintiffs in federal courts (yo, Professor Doernburg… I still got it!). A judge assumes everything on the record is true when making an assessment, and if there’s a question of fact… like there clearly was here… a judge passes it to the jury determine those facts.


It may be there was no sexual discrimination in this case… just awful management and bad behavior. But, Judge Gorsuch’s quick trigger in this instance dovetails with his attitude towards judicial relief generally… in other writings he wrings his hands over liberals misusing courts for relief, bemoaning the poor companies that have to defend lawsuits. This is an example of how he puts the thumb on the scale to deny a plaintiff a shot at discovery and a jury in a gender discrimination context.


Oh and for what it’s worth vis a vis last week… this also happens to side with a big shipping company over an individual… par for the course.


SCOTUS politics: a lifetime appointment in the context of the Russian allegations


Every day we seem to get closer to the most outlandish and absurd possibility that someone or some people in the Trump campaign colluded with Russian agents to impact the election. Given the lifetime appointment that is the SCOTUS seat, is it appropriate for Senate Democrats to filibuster this and future lifetime appointments (i.e. all judicial noms) until a complete independent investigation is done? Would framing a filibuster this way make it harder for Senate Republicans to go nuclear?

Lena: process politics not nominee – missing info: DOJ WH Pres Library) Sessions, Independence