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Advice & Consent 32: One Last Time (the season finale)

Advice & Consent 32: One Last Time (the season finale)

The ragtag gang of the usual suspects returns “one last time” (for this season anyway) to discuss the new Justice, the politics of the nomination process and more. For the first time all five member of the ragtag gang of the usual suspects alumni association are on the same pod… enjoy, and thank you for listening. We’re cicadas on this, so if there’s a new nomination, take a look at scotuscast.com and you may well find a new season of the pod…

Direct download:  Advice & Consent 32: One Last Time (the season finale) (mp3)

Advice & Consent 32: One Last Time (the season finale)

Justice Gorsuch*

Advice & Consent 31: Justice Gorsuch*

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

Justice Gorsuch*


Direct download:  Advice & Consent 31: Justice Gorsuch* (mp3)

The Senate votes, Justice Gorsuch* confirmed

*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


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



  • 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.


oppose Judge Gorsuch

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.

 oppose Judge Gorsuch

Direct download:  Advice & Consent 30: Almost to nuclear, listener mail and 3 principled reasons to oppose Gorsuch (mp3)

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: 

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.)


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.


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.


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.


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

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

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

This episode we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process. Plus, should the process for lifetime appointments be suspended pending investigation into foreign influence on the election?


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

Direct download: Advice & Consent 26: Gorsuch on Social Issues (and more) (mp3)

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

Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

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.


Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

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


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 f*cked 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 bullsh*t. 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 19: Transition turmoil + SCOTUS

Advice & Consent 19: Transition turmoil + SCOTUS

It’s transition season now that the election is over and a few questions remain for the Garland nomination… notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hill and through the woods for a holiday break!

Advice & Consent 19: Transition turmoil + SCOTUS

Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?

Could President Obama really appoint his Supreme Court nominee? (WaPo video)

No direct precedent

Probable Constitutional crisis™ after Jan 20th

President Obama unlikely to be into this option

Even if he wasn’t, probably too late (should have happened this summer)

Adam:  The question Democrats/liberal activists have to confront is:  As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.

For example, the Senate rules allow Democrats to basically force the Senate to do nothing.  The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session–normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.

To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees–where cloture already takes a simple majority–it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).

These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.

It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail?  I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).


If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯\_(ツ)_/¯

Lena: While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen – I do think it’s an affirmative duty.

Dan: Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?


Lena: First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.

Interesting because she’s up for reelection in 2018.

Strong membership under the Ranking Member, as well.

Dan: Important on govt surveillance issues.

New names for The List and conservatives victory lap

Conservatives let themselves dream big about Scalia’s replacement (CNN)

Alito’s guideline on issues of Americans’ liberties: ‘What would Scalia do?’ (WaPo)

Dan: I just need to publicly cry over this for a moment: Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”

Ted Cruz?

Lena: WSJ article pushing President-Elect Trump to vet and nominate a new Suprem Court justice given pending cases on Obama Administration regulations: http://www.wsj.com/articles/trumps-supreme-court-priority-1479682227

Tim: Holiday episode proposal: SCOTUS List Mock Draft!

New segment: Outrage Fatigue – things to keep an eye on

Jefferson Beauregard Sessions, III

Lithwick on Sessions (Slate)

Reminding listeners why he was rejected as a federal judge

Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)

Already normalized?

Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statement that she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation. (Vox)

Internment of Japanese-Americans as a precedent for a Muslim registry

Japanese American internment is ‘precedent’ for national Muslim registry, prominent Trump backer says

One can foresee a case on appeal where the Trump admin’s SG cites Korematsu favorably while arguing the Constitutionality of a Muslim registry.

Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?

Adam: They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:


Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia ranked Korematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Greene wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .

No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.

Advice & Consent 018: What’s Next?

Advice & Consent 018: What's Next?

So. What’s next?

Trump’s victory has enormous consequences for the Supreme Court (WaPo)

This just became a very different podcast. What’s next?

Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?


  1. Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?

I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days.  It’s incredible how often Bush spoke about judges).

How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.

  1. To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date).  There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf

Lena: McConnell won. We let him.

I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.

In the future, I have no idea what this means for future nominations. We have a new normal.

Tim: I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.

Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”

So, there’s that.

Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?

Lena: Day one. Probably sooner we’ll have an idea of the top few contenders.

Adam As soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.

Tim: I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.

Who do you think will be picked?

Dan from Oakland writes in: “FFS he’s going to put Ted Cruz on the Supreme Court.”

Lena: We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.

Adam I think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.

Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.

Filibuster? Nuclear option?

Adam: Dems will decide whether to conciliate or to block. Don’t know right answer.

Tim: I don’t know how I feel about a filibuster – I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.

Lena: Our constitutional democracy is threatened: on process and substance.

Programming note: We’ll continue the show through the nomination and confirmation process.






https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-7.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030.html [weekly radio address]





https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-15.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-14.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-13.html [Cheney]








Advice & Consent 17: The two-month-long podcast that may last five years?

The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election…

Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination on March 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees – a flip flop from their position of let the next President decide…

Sen. Richard Burr (R-NC) says no SCOTUS confirmations for a President Clinton. Sight unseen.

Sen. Ted Cruz and Sen. John McCain say similar/parallel things.

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing!  What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam: Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.”  The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800.  In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges.  Jefferson refused to seat these judges, creating a constitutional crisis leading to Marbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841.  John Tyler succeeded him (Tippecanoe and Tyler too).  This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay.  These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office.  There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president.  Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees.  But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868.  No one would deny that this was a constitutional crisis.  President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president.  Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all).  Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson.  No one would deny that this was a time of constitutional crisis.  The Civil War had just ended.  A large chunk of the nation was under military occupation.  There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united–and radical–Congress opposing him.  Finally, we had a Supreme Court whose most momentous decision to date, Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices.  The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when the Lochner-era Supreme Court stymied the New Deal.  Everyone listening probably knows about this from their history class, so there’s no need for detail.  There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based on the Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip to Paul Waldman in the WaPo for that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena: Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

Also, because Hamilton: See Geof Stone’s piece on how partisan complete obstruction is. http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&utm_source=ccb-morning10&utm_campaign=ccb-morning10-20161103

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena: I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

  • Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.
  • Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS – and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam:  Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice.  What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where they don’t go for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena: The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?


  • Evidence of maybe yes:
    • Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)
    • White House says Garland will remain nominee in lame duck (Talkmedianews)
    • Senators like Jeff Flake and Orrin Hatch suggest an HRC win might mean the most conservative option remaining is Merrick Garland
  • Evidence of no, this gets ugly: basically everything else
    • Pressure from the left to go more liberal and claim mandate from election
    • Pressure from the right to dig in and maintain “Scalia seat”
    • Aforementioned comments from Sen. Burr
    • If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.


  • I hope so. Serves most people’s best interests.
    • Rs aren’t united on this.
    • Levers – 1st Grassly, 2nd McConnell
      • Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.


Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that’s enough. I’m out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” – elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim: If this is a real thing, then I have one name: Thurgood Marshall. [If it’s not, let’s drop it from the rundown on the show]

Lena: Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

  • A maybe? Less elitist speculative list: http://ijr.com/2016/07/662707-clinton-insiders-list-potential-supreme-court-nominees-the-top-pick-will-make-obama-very-happy/

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim: I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena: Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out – actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam: I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

With the likelihood that the GOP will take control of the Senate in 2018, do we foresee any Justices taking an early retirement?

Adam: I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seemingly no longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena: Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

A happier note to end the show…

Congratulations to retired Justice John Paul Stevens on seeing his beloved Cubs win the World Series for the first time since he was… well the 96 year old SCOTUS alum never saw his Cubs win since it took 108 years for them to do it.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

In this episode we chat about the SCOTUS question in the third presidential debate and explore the new forms of obstructionism on the horizon.

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

Direct download: Advice & Consent 16: “One Last Time” for the debates and increased obstructionism in 2017? (mp3)

Merrick Garland at 219 days

  • Today as we record the show (10/20) marks day 219 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. Stay tuned til the end of the show for a programming note…
  • Senator John McCain (R-Ariz.) said this week that Senate Republicans will move to block any Supreme Court nominee made by a Democratic President.
  • On the other hand, Senators Orrin Hatch (R-Utah) and Mike Lee (R-Utah) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) try to appear reasonable. TRY…
  • Also, some cracking… Senator Jeff Flake (R-Ariz.) said “If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That’s what I’m encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?


  1. I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.
  2. My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.
  3. I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the  two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.  
  4. Pleased Clinton mentioned the current vacancy – and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.
  5. A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.


Secretary Clinton, Mr. Trump, welcome. Let’s get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it’s great to be with you, and thank you, everybody. The Supreme Court: It’s what it’s all about. Our country is so, so — it’s just so imperative that we have the right justices.

Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent. And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don’t think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it’s absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important.

I don’t think we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that is guns.

Secretary Clinton, you said last year, let me quote, “The Supreme Court is wrong on the Second Amendment.” And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What’s wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn’t mean that I want people who shouldn’t have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton’s answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP: Well, the D.C. vs. Heller decision was very strongly — and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

WALLACE: Well, let me bring in Secretary Clinton. Were you extremely upset?

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there’s no doubt that I respect the Second Amendment, that I also believe there’s an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald’s been strongly supported by the NRA. The gun lobby’s on his side. They’re running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we’re going to protect and defend the Second Amendment. But we’re going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am — I don’t know if Hillary was saying it in a sarcastic manner, but I’m very proud to have the endorsement of the NRA. And it’s the earliest endorsement they’ve ever given to anybody who ran for president. So I’m very honored by all of that.

We are going to appoint justices — this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let’s pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that’s the issue of abortion.

TRUMP: Right.

WALLACE: Mr. Trump, you’re pro-life. But I want to ask you specifically: Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes — in fact, states — a woman’s right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I’m asking you specifically. Would you like to…

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it’s not only about Roe v. Wade. It is about what’s happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he’s in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women’s rights to make their own health care decisions.

WALLACE: Secretary Clinton… CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I’m going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

WALLACE: Mr. Trump, your reaction? And particularly on this issue of late-term, partial-birth abortions.

TRUMP: Well, I think it’s terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that’s OK and Hillary can say that that’s OK. But it’s not OK with me, because based on what she’s saying, and based on where she’s going, and where she’s been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that’s not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I’ve had the great honor of traveling across the world on behalf of our country. I’ve been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment…

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.


1) I wrongly predicted that Wallace would play it straight.  Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best.  Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the term https://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did.  Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results.  And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups.  Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed.  So I want to highlight a more interesting chance to follow-up.  If Wallace had said, “You frame your opposition to Heller in terms of toddlers shooting people.  But Secretary Clinton, the District of Columbia gun law that was overthrown in Heller was in reality a complete ban on owning a handgun.  Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself.  If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?”  Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly.  Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination.  Sad trombone for less than a full sentence for Citizens United.  Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change.  Sad trombone for three debates and no mention of the corporate court.

4) Forbes contributor Michael Bobelian made the interesting point that, in the post-WWII era, Nixon was the first to campaign explicitly on a promise to reshape the Supreme Court. http://www.forbes.com/sites/michaelbobelian/2016/10/20/clinton-trump-feud-over-supreme-court-fueling-a-campaign-battle-ignited-by-nixon-in-68/2/#9b486841a153.  It was part of Nixon’s (failed for 1968) Southern Strategy.  Before that, we had had 30 years of peace on the issue of the Supreme Court at the presidential level.  So, we’re all living in Nixonland. Take a bow, Rick Perlstein. https://www.amazon.com/Nixonland-Rise-President-Fracturing-America/dp/074324303X


The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump — as Lena noted — the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn’t exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald’s answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn’t understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structure even and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)


The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland’s nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley: I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it’s Trump or Ms. Clinton will make the next appointment as far as I’m concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there’s been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can’t have one rule for Democratic Presidents and another rule for Republican Presidents so we’re being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley: If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don’t expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland’s nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view. I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn’t elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there’s a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there’s nothing in the Constitution that says the Senate has to move ahead. That’s the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what’s your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what’s wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There’s nothing wrong with the checks and balances in our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it’s being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim: This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam: The lie about 1968 shows just how unmoored the argument against holding a hearing is.  First of all, what Grassley is talking about is a filibuster of the Fortas nomination.  The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas.  Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House.  That would be just about the dumbest political strategy in history.  And of course that’s not what happened.  A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it.  And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrd https://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Sen. John McCain!

HRC wins, Senate goes to the GOP.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. (CNN)


Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam: The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more.  That said, 10 if GOP retains the Senate. 1 if they do not.  They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, Nomi Stolzenberg, describes the Senate filibuster as political Lochnerism–a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people.  This brings up interesting issues that probably go beyond the scope of this podcast.  But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract.  But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others.  It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority.  But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion).  So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice.  If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.


McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis – where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.


Tim: 9/10 – I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all… if there’s a GOP Senate.

Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition

In this episode we chat about our the SCOTUS questions in the second and upcoming third presidential debates and then America’s favorite gameshow returns—Election Speculation: Celebrity Edition!

Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition

Direct download: Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition (mp3)

Merrick Garland at 212 days

  • Today as we record the show (10/13) marks day 212 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. In the interim we’ll be doing shows every few weeks.
  • Senator Tammy Baldwin (D-WI) speaking on the SCOTUS vacancy & the ones in her own state of Wisconsin: http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/11034

The Second Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates?

Lena: Was excited by the question (thank you, Beth Miller!), but had to review transcript to read the actual answers:

We have another audience question. Beth Miller has a question for both candidates.

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

CLINTON: Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

I hope that they will see their way to doing it, but if I am so fortunate enough as to be president, I will immediately move to make sure that we fill that, we have nine justices that get to work on behalf of our people.

Transcript of the SCOTUS question and answers

RADDATZ: Thank you, Secretary Clinton. Thank you. You’re out of time. Mr. Trump?

TRUMP: Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.

But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.

Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.

So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.

I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?

It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.



RADDATZ: Thank you very much. We’re going to get on to one more question.

CLINTON: The question was about the Supreme Court. And I just want to quickly say, I respect the Second Amendment. But I believe there should be comprehensive background checks, and we should close the gun show loophole, and close the online loophole. COOPER: Thank you.

RADDATZ: We have — we have one more question, Mrs. Clinton.

CLINTON: We have to save as many lives as we possibly can.


The big surprise is that Clinton threw Merrick Garland under the bus (although she offered to call 9-1-1 for him a few seconds later).  It’s interesting that Citizens United has reached Roe v. Wade and Brown v. Board level of public understanding.  A case citation is enough for the public to know what a politician is talking about.  Despite Tim’s best efforts, Griswold isn’t there.


Adam loves reminding everyone of my favorite case! An uncommonly silly law!! I only hope The Donald considers it as “beautifully reviewed” as his SCOTUS short list. Tremendous.

What will happen at the Third Debate?


Looks like the third and final debate will have 15 minutes dedicated to the Supreme Court as well, at least as of right now

Ask more questions…. Diversity, breaking through obstruction, lower courts…

1 candidate will answer. 1 will not.



(1) Chris Wallace follows up with Trump who again tries to spend 10 seconds talking about the Court and then switches topics.  Wallace doesn’t like it when people completely ignore his question.  But Trump refuses to answer the question no matter how often Wallace presses.

(2) Clinton gives the same exact response she gave during this debate, perhaps leaving herself a bit more wriggle room to reappoint Merrick Garland.  The real question is whether Chris Wallace picks up on the fact that Clinton described Judge Garland’s resume as the wrong resume for a justice she would select.  That would make for a very interesting debate question, and Wallace is smart enough to do that.


If Wallace asks a generic SCOTUS question – which I expect to be more softbally… “The Supreme Court is important… discuss” then Trump gets a free pass like before. If he surprises me and asks a more substantive question (“name a case you want reversed and would you appoint justices to effectuate that?”) then I agree with Adam.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Robert Reich!

HRC wins, Senate goes to the Dems, House is GOP but only by 3 votes.

President Hillary Clinton nominates Barack Obama to the Supreme Court, who immediately pledges to reverse “Citizens United.” Senate Democrats make a rule change that allows Obama to be confirmed with 51 Senate votes. He is. (source: Facebook)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score Mr. Reich?


Agree on nuclear option because it will be needed for his confirmation (PS this will also double down on the SCOTUS nom enmity that started with Bork nom) but I think Mr. Reich is wrong on the former President “pledging” to reverse Citizens United. He may very well vote for that if before him on the Court, but there’s no way he’d say that in a hearing or anywhere else. He’d stick with tradition and play the “won’t comment on cases that may come before me” card. Reich gets a 5/10.



  1. Let’s not wait until January/February/March, PLEASE!
  2. Agree with Tim. The idea of litmus tests gives me a little pause and there’s no pledging to do X or Y, and we shouldn’t have nominees willing to say that given the facts and law drive decisions.
  3. May need to reform the filibuster for SCOTUS noms, as Tim suggests, so he could get confirmed by a simple majority instead of super majority as it stands for the Highest Court nominees right now.
  4. That said, I’m optimistic that as much light and distance will need to happen between the GOP and Trump that PERHAPS they’ll try to appear like they’ll get work done. So perhaps, even in that scenario, a few Rs would cross over to respect the President’s power to appoint justices to the Supreme Court so maybe don’t even need the super majority.
  5. I don’t think President Obama wants the job.


The entire reason that the GOP never went nuclear during the Bush years was to filibuster a Democratic president’s nominee to replace Scalia or Thomas.  The nuclear option will be triggered no matter what the other politics, which might involve “we’re going to roll the base on immigration, we need to fight on SCOTUS).

Clinton doesn’t really like Obama enough to nominate him, nor does Obama want the job.  William Howard Taft’s place in history is secure.