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Month: April 2017

Advice & Consent 31: Justice Gorsuch*

Nuclear option and the asterisked Associate Justice

Yadda yadda yadda, he got confirmed. And the seat is stolen. And he always should be referred to as Justice Gorsuch*

 

*Seat stolen by GOP, 2016-2017.

 

Before reactions… a toast to Sen. Merkley for his voice filibuster this week. All night long, y’all.

 

Reaction to the filibuster, the nuclear explosion and Justice Asterisk?

 

Adam: I think filibusters are dumb. The Senate’s filibuster history is a total accident. The VP one day just up and ruled the previous question motion out of order because there was no reason to have a rule cutting off debate when there was such a tiny body. Then at some point, when the Senate got larger, people realized that unlimited debate could stop action on things they didn’t like. At one point, we did have people like Daniel Webster and Henry Clay in the Senate, but that isn’t the way it’s been for most of our history. It’s been more like people like Mitch McConnell and Ted Cruz, orators so grating, you have turn them off.

 

That said, what’s worse is changing norms and rules right and left to steal a seat and then fill that seat.

 

And what’s even worse is people who don’t understand the rules. Hey, Senate Dems, an appeal of the ruling of the chair is debatable and therefore filibusterable.

 

[Tim: Jon Lovett’s 7-point timeline of how we got here.]

 

Lena: I love deliberative representative democracy. Legislation should take time because it should be done well. Nominations should be thoughtful, and that whole Article II Section 2 Advice and Consent piece seems to indicate is important.

 

I appreciate that this is all politics and results of elections. And I don’t think elections should be viewed as a winner takes all. I’m weary of the tyranny of the majority. And so, I appreciate tools available to the minority party so that they, too, can have a voice. What I feel about the filibuster is probably some idealized version that politicians would take to the floor and espouse their views. They could signal issues with a debate, and people, particularly other politicians would listen. The filibuster is therefore one of the tools I thought was important. However, the way that it has been used is not what what I believe it was intended to do. It’s become ineffective.

 

For what happened, I felt that this change shouldn’t be called nuclear because let’s not desensitize ourselves. It’s a change in rules. But I do think this move is horrible. This is what happened b/c this White House and Senate majority are in the winner-takes-all mode.

To get to this point, it’s been political and everyone is blaming the other party. And all under false equivalencies (as we’ve discussed previously) and a sense of inevitability (McConnell made this clear long ago).

 

In the Executive Business meeting on Monday and in most press statement, Rs have been lamenting “having to make this change” it didn’t seem like anyone could persuade McConnell. And maybe they didn’t want to. McConnell high 5ed Cornyn after the change and then McConnell all thumbs up.

 

Disappointed: Schumer et al should have used the 30 hours post cloture to debate this nomination. At a minimum, make speeches and use the tools and time.

 

Justice Asterisk? He’ll be forever known as the litmus tested justice. I hope that instills in him an even further appreciation for the need to be independent. To check himself as he hears cases and writes opinions. But I’m not hopeful based on his record. Sure, there will be times people will tell me “see, not so bad.” But I’m starting to believe Trump and people’s past record that got them to the point where folks say “you need this guy b/c he’ll overturn Roe and the NRA’s version of the Second Amendment”

 

[Tim: Rick Hasen Q to his Twitter followers: When will Justice Gorsuch* first rule in a way contrary to conservatives? My answer: Never.]

 

Tim: I’ve always felt ambivalent about the filibuster. I mentioned it on episode 018, aka the “let’s talk everyone off the ledge” episode of the pod. Also known as “Tim slaps an explicit tag on the pod.”  

 

I understand why the Dems filibustered and I understand why the GOP went nuclear, even if I still bristle mightily at the larceny of the seat.

 

Other non-SCOTUS-focused media seemed surprised there was so little energy behind the two sides, even if there was high antipathy. I think the reason was very clear… by about 10pm ET on November 8th… before the final votes were cast, but right about when it was clear Trump was going to win… today’s outcome was preordained. The identity of Justice Asterisk was unknown, but the dance card was set. Perhaps that’s the saddest part of all of this… the Court may one day revert to being above politics, but I can’t forsee a day in my lifetime when it won’t be. Too many burned bridges.

I question what the new paradigm is… It may be seats on the Court are only filled when the same party holds the Senate and the White House. That means long-term vacancies during divided government. It means POTUS and Senate campaigns with SCOTUS shortlists. It seems to be the inevitable outcome here, but I hope I’m wrong.

Cases coming before SCOTUS – WaPo

Voting restrictions in NC

Whether a bakery can refuse a cake to a gay couple

Whether self-protection outside the home means 2nd Amendment scrutiny covers some carry laws

etc.

 

More norm breaking – rumors of dropping blue slips for lower court judges

 

Reaction?

Lena:

  • Lower courts: over 130 lower court vacancies already # of judgeships likely to increase
  • Blue slips: selection vs. confirmation
  • Changing blue slip rules could be pretty bad for a number of reasons:
    • Who carries the water?
    • Who will further be annoyed?
    • Advice and consent changed even more

Adam: Before I started working on judicial nominees, I had no idea the extent to which home-state senators were involved in judge-picking. When the president and both home-state senators are from the same party, the senators basically pick the trial court judges and sometimes the court of appeals judges. When at least one senator is from a different party, they basically have a veto on the court picks as long as either their party controls the Senate or they don’t abuse it.

 

There are not a large number of examples of Judiciary Committee chairmen holding hearings and votes without receiving blue slips from both Senate even though they have officially left themselves room to ignore the blue slips. Orrin Hatch did it for 4 nominees in 2004 under heavy pressure from the rest of his caucus, but he wasn’t happy about it. I get the sense that Grassley really doesn’t give a darn about the norms of the Senate (hi, ex-Sen. Norm Coleman) and McConnell certainly doesn’t. And Trump assuredly doesn’t. I think it’s over.

 

Tim: Bottom line: this is court packing, pure and simple. And court packing by eliminating a norm that assured moderation in states with split party representation. Norms aren’t laws and the GOP knows it can change these norms without getting nailed on it. They did it for Garland, and they’re doing it for lower court judges should this blue slip rumor be true.

The modern nomination process has produced a judiciary as political as the other branches

Agree or disagree?

 

Tim: The Court has been ideologically divided along different lines for a long time… back to Marbury days. But since the Bork nomination, the politics of nominations has politicized the judiciary in a discomfiting way. The only ameliorating thing is the lifetime tenure and that may matter less over time. It’s time we acknowledged this in the nomination process and end the nomination “rules” fictions so we can properly assess these nominees through the very real ideological/political lens rather than pretend otherwise.

 

Adam: I think it’s an inevitable result of the parties evolving from ideologically heterogeneous to ideologically homogeneous. The reason why there were so many “mistakes” liberal justices appointed by Republicans and one conservative appointed by a Democrat, Byron White, was at least in part because presidents had to appease different ideological wings of their own party. (It might even explain Souter since George H.W. Bush, his chief of staff who pushed for Souter, John Sununu, and Souter himself came from the moderate New England wing of the GOP, of which Susan Collins is the hardy surviving member.) Now that the most liberal Republican in each house of Congress is more conservative than the most conservative Democratic member, there is a huge downside and no upside to a Republican choosing an ideological liberal or a Democrat choosing an ideological conservative.

 

So we therefore have a Supreme Court where, like Congress, the most liberal Republican appointee, Kennedy, is more conservative than the most conservative Democratic appointee (either Breyer or Kagan, depending on your perspective). I do think that life tenure, the robes, and the common law needs to base judicial decisions in reason and precedent does still remove the judiciary from politics in a way that Congress is never removed. Example: conservative Kentucky senator (and awesome pitcher) Jim Bunning installed his own son, David Bunning, as a district court judge. Seems like he would just be a politician in judicial robes Yet Bunning was the one to enforce the Obergefell decision and hold Kentucky Rowan County official Kim Davis in contempt.

 

Lena: Almost: In our lifetime, we haven’t had a majority of Supreme Court justices who probably are in line with where we tend to be. But the perception hasn’t been there and that’s pretty deliberate. There’s been a movement afoot for decades to try to make sure there would be more reliable justices who aren’t disappointments (Chief Justice Roberts is still invoked in angry rants by Rs). This seems to be the trend.

 

Perception is perhaps even more important. The process for how judges get to the bench = political. But our system of government and legitimizing our justice system depends on people believing the system is independent and fair. The courthouse doors have to be open to everyone. These confirmation processes can be helpful in terms of raising awareness and educating people about the courts. But the R said/did vs D said/did doesn’t help.

 

Litmus tests and campaigning with a list of potential nominees also serves only to politicize this process.

 

Some ways to depoliticize: timelines, terms

Programming note: Season finale in a few weeks

We have surprises and special guests. No peeking.

Advice & Consent 30: Almost to nuclear, listener mail and 3 principled reasons to oppose Gorsuch

The Senate Judiciary Committee voted on a party line vote to refer Judge Gorsuch to the full Senate. Most whip counts show 41 Senators who intend to vote no on cloture. We’re probably going nuclear. So perhaps its time for listener mail? Also, three principled reasons to oppose Judge Gorsuch as Associate Justice.

The Judiciary Committee votes

Yadda yadda yadda, Gorsuch got reported out of committee on party lines

The votes for cloture aren’t there

CNN, ABC, etc. WaPo graphic.

But are there non-nuclear options?

Can the Senate’s “2 speech rule” can be used to limit debate without going nuclear?

The Federalist says yes.

Adam pulls out a mic to drop on The Federalist

There are reasons why the 2 speech rule hasn’t been used to cut off debate before (and note to The Federalist, the Civil RIghts Act of 1964 passed because the Senate invoked cloture, not because of the Two-Speech Rule–I think the author knows that and uses the weasel words that the 2-speech rule was a “key component” to passing the act rather than saying it was what ended the filibuster. Here’s a description of the filibuster vote: https://www.senate.gov/artandhistory/history/minute/Civil_Rights_Filibuster_Ended.htm.

First, let’s say that 10 Dems burn their first speech before realizing this is the Dem strategy. Well, given that there have to be at least 41 senators to sustain a filibuster, that still leaves 31 senators with 2 speeches and 10 more with one speech, meaning there are 72 speeches left to go before the Senate can confirm anyone, and those 72 speeches will then take a long time. And the Senate cannot move onto other business while the filibuster is pending (absent unanimous consent). Also, Democrats have the ability to force Republicans to come to the Senate floor in the middle of the night to vote on motions to adjourn (which can be decided by less than a quorum and, if they happened to be successful, restart the 2-speech rule because a new legislative day starts).

Second, all the Senate needs to do to get around the 2-speech rule is start a round of debate on a new issue. Therefore, Republicans would have to be extremely vigilant and immediately table motions to postpone indefinitely,To postpone to a day certain, or to commit, each of which can be propounded while another question is pending and each of which would create a new subject if debate started on the motion and therefore would allow senators who had already spoken twice on Gorsuch to speak again. They would also have to make sure they didn’t accidentally start a new debate topic by, for instance, beginning a debate on whether a senator’s remarks violated the rules of decorum, as they did with Sen. Warren, because once again, this would be a new topic of debate.

All that is to say that I once read through the Senate rules, hit on Rule XIX and said, “hey, maybe there is another way to stop a filibuster.” But then I realized that I wasn’t the first young D.C. activist to read the Senate rules, so maybe it was a bit more complicated. Since then, I’ve both studied the two-speech rule and asked people who worked in the Senate about it. Which leads me to my answer: That’s not the way anyone will cut off the Gorsuch debate.

We got mail

A thoughtful email from a conservative (!) listener prompts our response.

Hello, to begin with I want to thank you for this very informative podcast. Everyone of the “gang” seems to have good knowledge of the issues relevant to the Supreme Court and history of the Court. I enjoy the chats and I always learn something from each episode.

Being a conservative, for the most part I’m not bothered by the clear and strong liberal leaning of the panel. I often agree with your criticism against the Republican party and even when I disagree I understand where you’re coming from.

I do want to mention a couple of things that I think the panel missed because of their liberal leaning. These are my opinions.

1) It is not reasonable to filibuster Gorsuch on merit grounds. Given the support he has received from his fellow judges and lawyers, it’s not reasonable to doubt his merit or mainstream status. If he is not mainstream, the word has lost its meaning. (I understand the desire to filibuster to make a political statement.)

RGOTUS RESPONSE:

Tim: Not sure we agree on the meaning of mainstream in this context. I would propose Gorsuch is part of judicial movement conservatism that is not mainstream, which can be reasonably disagreed with and therefore he may be reasonably opposed. We throw around terms like “mainstream” and “qualified” and often don’t define these words the same way. I think the three of us agree it’s perfectly reasonable to support or oppose a nominee based on their judicial philosophy, even if they have impeccable education and professional credentials. You can be a likeable person, raise a good family, have loads of lawyers say nice things about you and may still be reasonably opposed on the merits of your judicial philosophy. And that goes for everyone, not just Judge Gorsuch.

Lena: Agree on not agreeing with the meaning of mainstream. And that’s probably the rub. Maybe he’d be mainstream a long time ago but a man who can’t say Griswold is rightly decided and somehow says he can’t imagine a state limiting access to contraception (even though he did wish to limit access to contraception or at least allow corporate employers to do so) doesn’t fit my definition of mainstream.

Admittingly, I don’t expect someone I would embrace fully on the bench. But someone I can respect because of how they get there is a really terrific start. I can’t get there with Gorsuch.

Adam: You can’t judge by a nominee’s supporters. There is a whole game out there of people trying to get better positions in DC some day (or just being part of the old boy’s network). E.g., Estrada’s support of Kagan.

2) Similarly, it is utterly un-reasonable if Republicans voted down Garland in an up-or-down vote. I think Lena mentioned that she would be okay with it. I think she was not being totally honest. Garland absolutely should have been confirmed in an up-or-down vote.

RGOTUS RESPONSE:

Tim: Lena is very honest, but thanks. Had Senate Republicans taken the political “risk” of opposing Garland because of a disagreement over judicial philosophy, that would have been preferable to what happened. However, Republicans calculated they could avoid this political by declaring SCOTUS nominating season over with no basis in law or fact. I believe the technical term for this is “bullshit.” (Sounds like we agree on that).  Had the GOP Senate followed norms and voted Garland down, I’m sure we wouldn’t have agreed with the outcome, but we would have been much more “ok” with things compared to what went down. Which was, again, bullshit.

Lena: Yup. Pretty much really telling the truth there. Sure, I would’ve hollered about how horrible he was treated if voted down, but would rather he be voted down and we get ourselves a new nominee (something totally possible when the Rs have the majority, BTW) so we can at some point get to this.

I’m particular bent out of shape because I keep hearing that Ds have and/or would’ve done this and have advocated for it too. But I just don’t see that 1) that’s the case (Kennedy in 1988, an election year; Bork getting a hearing and a vote) or 2) it’s true. I think the minimization of “this is just politics” is really harmful.

3) It is often said that Garland is the most qualified supreme court nominee ever. What I find interesting is that if that’s the case, why didn’t Obama appoint him for the (not one, but) two vacancies he filled earlier? Do you really think Kagan is more qualified than Garland? I suspect it’s your liberal leaning that prevents you from discussing this.

RGOTUS REPONSE:

Tim: I think I respectfully reject the premise of the comment. An observation in response: Conservatives seem to have fealty to identifying “the” (meaning singular) “best” person who should always get the nod for anything. Life – and by extension SCOTUS noms – is so much more a shades of gray thing. There are a limited number of people who are qualified to serve, but it’s a pool, not an ordinated list. A timely analogy is it’s more like the NCAA tournament. Does the #1 seed of the tournament always end up #1? Ask Villanova… they’d say, no! But Gonzaga and Carolina certainly qualified to get in and one will be crowned national champion tonight despite not being “the” #1 team. Likewise, one person’s “best” candidate may not get the nod, but someone who is qualified does. Politics, timing, etc. all weigh in. So if someone says Garland was somehow more qualified than Kagan or Sotomayor, (a) that is far from a universal opinion, and (b) who cares so long as the three of them were qualified? It’s the President’s role to suss out the pool and choose a name. The Senate takes it from there.

Adam: My real answer: The context is that we’re living in a time where, absent a desire to compromise, it makes no sense for either liberals or conservatives to appoint older people who stand a greater chance of being replaced by a POTUS with the other philosophy, so age has to be a factor in qualification. Garland is 8 years older, and therefore not as qualified on that measure.  

Gotcha answer: Kagan was nominated to the DC Circuit by Clinton. If Rs hadn’t refused to give her even a hearing (sound familiar), she’d have been pretty qualified. Being blocked by Rs, she did pretty well for qualifications: Harvard Law dean and SG. If Obama was to pass her over for not being a judge, it would mean eliminating a very qualified person because of GOP malfeasance, which seems wrong.

Complicated answer: Picking people on qualifications alone isn’t the best idea. Look at Taft: prosecutor, private practice, territorial governor, SG, AG, state trial court judge, federal appellate judge, president of the United States, for heaven’s sake. Beats Garland by quite a bit. But few list him as a great justice. Beyond a certain point, qualifications alone don’t really make for a better justice

Lena: I think there are other aspects and qualities beyond sterling credentials. Questions a PResident must ask himself or herself or whichever organizations they outsource it to. What would the Court benefit from? This is when things like age, ideology, professional and demographic diversity is important. And I can absolutely see how and why President Obama may not have prioritized a moderate white man at that point in his presidency.

There are many reasons someone gets the nod as Tim says. Kagan very well qualified. May not have served on the bench (for reasons Adam noted), but that can be an asset. As can having someone who was in the legislature. Also, a-okay if we go with a nominee who didn’t go to an Ivy League school.

I think Garland got the nod last year because Rs supported him and he wanted to show he was coming to the table with a nominee they could accept; someone who could get 60 votes. But they wouldn’t entertain this.

Tim: This was a really thoughtful email and we appreciate it… I think my favorite aspect was when the writer said we’ve been able to convey where we’re coming from even when he disagrees with the point. That’s kind of the north star for this show, so thanks for listening.

Three principled reasons to oppose Judge Gorsuch as Associate Justice NO ORDINARY CONSERVATIVE

Gorsuch is a judicial “movement” conservative that has been an active force in political and legal shifts away from settled areas of law. The aim of Gorsuch and fellow members of The Federalist Society is no less than a complete dismantling of norms and laws that produced important holdings for the last 50+ years (sometimes more). Make no mistake: his nomination isn’t intended as a replacement of Scalia, it’s an enhancement.

Paradoxically, we don’t know enough about his aims and intentions either. The modern stance of nominees before the committee and the American public is to clam up on any topic likely to elucidate even a glimmer of an idea of their stance on important topics of the day. This opacity isn’t limited to Republican nominees… it was a feature of nominees by Presidents Clinton and Obama as well.

STOLEN SEAT

It’s almost a cliche by now that this seat was “stolen” by Republican members of the US Senate. While we’ve noted before on the pod that the intentional withholding of the Senate advice and consent process of Merrick Garland by Republican leaders was not per se unconstitutional, it certainly violated the norms of the US Senate, and — perhaps more importantly — the will of each and every Obama voter in the 2012 election. Observers may laud the demonstrations following the election of President Trump, but they should also cast a disdainful look at the failure to do so during a shameful quiet period in the spring of 2016.

PRESIDENT UNDER FIRE

The questions surrounding the link between confirmed Russian meddling in the 2016 Presidential election and the campaign itself undermines the legitimacy of the sitting President. Although there is no evidence that the election results themselves are questionable, the possibility that a member of the President’s campaign — or even the President himself — aided in the interference of our election process undermines the moral authority for this President to make any appointments that could outlive his term of office until those questions are investigated and answered by an independent authority.

Lena

A little nuance to #1: the lack of answers which I think made Judge Gorsuch hard to take seriously and trust. (e.g., QFRs) And the “Ginsburg rule” is not a thing.

This is a lifetime appointment. This is really serious.

This is precisely what McConnell wanted. And I think he wanted it because he cares about his party (and corporate influence that the Court unleashed in Citizens United) and does so at all costs. To date, he seems to evade any backlash and isn’t held accountable.

Tim: Congratulations Mitch McConnell. Your legacy is just about cemented. You’ll get drinks bought for you in the back room of cigar smoke-filled clubs, with slaps on the back and knowing smiles from old dudes for for the rest of your life. You win. Oh… but maybe not. Because a lot of people really know what went down beyond the likely confirmation of someone who shouldn’t be there this round. Yes, this was a game of political brinksmanship that you won, but the long game and the judgement of history counts for something. I hope you don’t think your legacy is a reflection of those drinks and backslaps. It’s far different, and far more embarrassing for its political crassness in the face of institutions far, far greater