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

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

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

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

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

The RGOTUS this week

Tim bumps into Sen. Wyden at the airport and chats about SCOTUS at the departures  level at PDX (pro-tip: that’s the spot to get picked up when in the Land of Sunshine and BunniesTM). Spoiler alert: he’s opposing Gorsuch.

Lena goes on another law-talky podcast.

Adam pillories one of the worst op-eds in NYT history.

Hearing wrapup

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

Political Assessment


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


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

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

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

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

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


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

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

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


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

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

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

Advice & Consent 25: The Questionnaire

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

Advice & Consent 25: The Questionnaire

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

The Questionnaire

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

Any highlights pop out to you?

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

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

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

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

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

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

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

HIts the Judge Gorsuch highlights:

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

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

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

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

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

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

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

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


Advice & Consent 21: The SCOTUS shortlist

Advice & Consent 21: The SCOTUS shortlist

Regarding Episode 20? Yeah, as we predicted, “never mind.”

Since then… Dan met Dahlia Lithwick! Lena met Khizr Khan! And Adam and Tim watched hockey, bemoaning the future of our judiciary.

Advice & Consent 21: The SCOTUS shortlist

Direct download: Advice & Consent 21: The SCOTUS shortlist (mp3)

The SCOTUS Shortlist

PEOTUS Trump inherits a SCOTUS vacancy (stolen, mind you… listen to our prior 20 episodes for more on that). There’s a relatively public shortlist. On this episode, we chat a little more in depth about the people on that list, what their ascendancy to the high court would mean and our best guess at whom the new President will nominate.

(Commentary by CNN)
William Pryor: Roe v. Wade = a bomination
Diane Sykes: Contraceptive Mandate
Raymond Kethledge: Kennedy clerk
Joan Larsen: Scalia clerk
Steve Colloton: DC insider
Neil Gorsuch: another Ivy Leaguer
Amul Thapar: District Court Judge
Sen. Mike Lee: Tea party favorite
Don Willett: The tweeting judge
David Stras: Thomas clerk
Thomas Hardiman: Cited Scalia on gun control
Raymond Gruender: Contraception ruling
Margaret Ryan: military record
Sen. Ted Cruz: Wild card

America’s Newest Favorite Gameshow: From Anonymity to Famous for DC!

Who’s it going to be? Someone from the list or a wild card?

Lena: All have been vetted by very conservative legal folks even though the most conservative of them still make some small groups of conservatives mad that they may not have twisted the law to always favor the outcome they seek. So, my criteria for guessing:
1) some sense of loyalty/flattery; 2) looks; 3) age. I’m still guessing Judge William Pryor. Judge Diane Sykes, my normal second guess, is demoted because she’s 58 years old. My new second guess is probably Judge Steven Colloton.

Pryor: not Ivy educated (Tulane), no SCOTUS clerk, allegiance to Sen. Sessions
Colloton: Ivy educated (Princeton BA, Yale JD), clerked for Chief Justice Rehnquist, allegience to more established conservatives (George HW Bush, then W Bush

Adam: if he can get away with it he’ll go off the board (to use a Jokers Wild term) and pick a Trump flunkie who will rule in his favor on his personal lawsuits. So, based on my sense of Trump’s loyalty to the base of his party (taking into account his desire for reelection) and his loyalty to self, I say 55% chance of Pryor, based on his picking Sessions as AG, 5% one of these other people, 40% chance of an unknown Trump flunkie

Lena has sold me on Steven Colloton. Solid conservative, no massive red culture war red flags like Pryor, looks the part. Trump won’t want to waste political capital on the Supreme Court with a battle over Pryor.

Tim: Reports of William Pryor meeting with The Donald aside, a former colleague said it best before the holidays… if Don Willett gets a meeting with Trump, it’s all over. He’s the nominee. Check out his Twitter feed and you’ll immediately see why. He’s young, charismatic, fiercely conservative, and strikes me as packaged perfectly for this President-to-be. His marginally anti-Trump tweets will be easily brushed aside.

Wrapping up… Any last thoughts before we enter the Trump era?

Lena: Lower courts

Dan:Rev. Dr. William Barber – critical voice for the Trump era
Adam: SCOTUSBlog: Timeline to confirm Scalia’s successor.
Very interesting. If confirmation happens on the Sotomayor/Kagan timeline, the nominee will get on the Court just in time for the last argument session of the 2016-17 term, meaning that the Court could rehear arguments in cases in which they are tied 4-4 and have a decision before they leave in June. That said, Democrats have some leverage since Republicans have to trigger the nuclear option to push a nominee through over a Democratic filibuster.
Only 3 Ds remain on the Judiciary Committee from the last time the Senate considered a Republican nominee, Feinstein (ranking member), Leahy (ranking member last time), and Durbin (Minority Whip then and now). So, it will be a new experience for the Committee. Four Republicans remain from the Roberts/Alito hearings

Tim: We know the PEOTUS will likely make a nomination within the next two weeks, so our next show will come out shortly afterwards and focus on the nominee and the circus to be named later. Sen. Schumer has intimated that there may be some shenanigans.

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.

"What Did I Miss?" - SCOTUS closes its term with 8

Advice & Consent 11: “What Did I Miss?” – SCOTUS wraps up the term

On this episode…  SCOTUS wraps up the term with a bang – do any of the rulings impact the Scalia vacancy?

"What Did I Miss?" - SCOTUS closes its term with 8

Direct download: Advice & Consent 11: “What Did I Miss?” – SCOTUS closes its term with 8 (mp3)

Three big holdings end the SCOTUS term

Fisher v. University of Texas at Austin – UT affirmative action program upheld, resulting in a lot of #byefelicia’s for Ms. Fisher, one of the more maligned plaintiffs in the history of American jurisprudence. Fear not: #abbywiththebadgrades will likely be a fixture on the right-leaning speaker circuit for the next decade or two, despite no UT degree.

This one was a bit of a surprise since it was Justice Kennedy who came in and delivered the winning vote, an evolution that Adam will speak more about later. It appears the reports of affirmative action’s death were greatly exaggerated?

Washington Post


United States v. Texas – 4-4 Court affirms the lower court’s rejection of POTUS immigration executive orders. The right says “SEE!!!” and the left says “SEE!!!!” Executive authority questions get the punt by SCOTUS… had Justice Scalia been with us, perhaps executive actions like this would have been curtailed. On the other hand, would a seated Justice Garland have meant a victory for the President?

NBC News


Whole Woman’s Health v. Hellerstedt  – A Texas law imposing regulations that abortion clinics’ doctors have admitting privileges to local hospitals and that clinics meet the standards of “ambulatory surgical centers” struck down as an undue burden on women’s rights. Anti-choice leaders decry this as an anti-women’s health ruling (like, for real) and pro-choice leaders breathe a sigh of relief as this brazenly obvious tactic appears to be over.

Interesting note: The majority opinion, essentially Casey II: Electric Boogaloo, was written not by Casey author Justice Kennedy, but by Justice Breyer. Given seniority drafting rules when the Chief Justice is not in the majority, this presumably means Kennedy had the opportunity to write C2:EB but “gave” this one to Breyer.

And here is Linda Greenhouse’s take.


Bonus: Five Thirty-Eight reveals this type of (“liberal”) ruling is historically atypical of abortion cases before the Court.

Mic Drop


Just back from a long weekend riding and camping the 184.5 mile C&O National Historic Park towpath, the advocacy and protection of which was just one of the legacies of Justice William O. Douglas (along with the majority opinion in Griswold v. Connecticut and the “trees should have standing” dissent in Sierra Club v. Morton). I understand he was a dick to his clerks though, so minus 200 points there.


Adam: Justice Kennedy’s continued swing to the left has an interesting side-effect. Even as the 4-4 deadlock has shown that the Court is hamstrung, immigration is already doing to be as giant an issue as it could be with Trump on the ticket, and it’s going to be fought on substance, not executive power or judicial indecision.

However, if abortion, which has–for 40+ years–been a right protected by the Court despite legislative attack had lost protection based on a technicality like a 4-4 decision, they would have made the Court a giant issue for liberals and would have had major reverberations for Senate races, which, for now, seem more up in the air than the presidential race. So, Anthony Kennedy, by protecting women’s rights, you must also have protected Senator McConnell’s job as majority leader and buried Judge Garland’s nomination even further, at least until after the election.


Lena:  ABA well-qualified?

#AllCourtsMatter: the 8 Justice bench is making what’s happening at lower courts even more noticed and, perhaps, appreciated, by court watchers and hopefully ordinary folks. Because especially when a Supreme Court is at less than full capacity there are real implications: 1) most cases don’t ever make it to the Supreme Court.* 2) The Supreme Court has been issuing 4-4 decisions which have no precedential value so the courts do not have a universal law of the land to follow which can certainly impact courts and peoples’ understanding of the law and create even more inconsistent and confusing decisions, 3) The Supreme Court has been unable to decide and letting some Circuit Court decisions stand – given them the final say, instead of the Supreme Court.

*The Supreme Court grants oral arguments for only 75-80 cases for more than 10,000 petitions submitted to the court annually.Circuit Courts receive more than 55,600 filings annually.District Courts receive more than 390,500 filings annually.

But what we’re being subjected to in the case of Chief Judge Roberts and the Republican’s just-say-no approach, has been foreshadowed and – I think trying to establish a new normal for doing nothing – on the lower court levels.

By the numbers: Today we saw one district court nominee confirmed, Robert Rossiter to the U.S. District Court for the District of Nebraska. He fills a seat that’s been vacant since 10/3/2014, and he was nominated 8 months later in 6/2015. Now more than a year later, he was confirmed. And this seat was designated a judicial emergency (definition of judicial emergency).

But this is only the 21st Article III judge confirmed since Republicans took over the majority in 2015. Compare that to other presidents in their last 2 years in office. We are less than half-way to the lowest number of judicial confirmations since Pre22 sident Eisenhower, who had 44 confirmations in his last 2 years.

Number of Judicial Confirmations in the Final Two Years of a President’s Term in Office with Oppositional Senate Leadership
122 President George H.W. Bush
85 President Ronald Reagan
73 President Bill Clinton
68 President George W. Bush
48 President Gerald Ford
44 President Dwight Eisenhower

(as of 6/27/2016)

President Barack Obama

A better – and probably more appalling – indicator of progress is the overall number of judicial vacancies. Since the start of 2015, the number of vacancies has increased from 43 to 83. Compare this to President George W. Bush when the number of vacancies decreased from 56 to 47.

So, by the numbers, when it comes to Article III judicial vacancies, as of 6/28, there are:

83 current vacancies

14 known future vacancies (more expected)

29 judicial emergencies

On June 6, Senator Warren’s office released a report on the systematic Republican obstruction on nominees. This helped really bring a spotlight to the issue which received significant press coverage, including this piece in the Washington Post and in Senator Warren’s speech at the ACS National Convention on June 9.

There has also been discussion about the diversity of the courts, which I think is also a way to help us think not just in numbers but in terms of quality and reflection of society. This piece from The Guardian details this, as does this CQ article. That said, professional diversity is an area that I think many observers of nominations have hoped to see more of – and certainly something that was a topic of conversation when Chief Judge Garland was nominated.


Dan: A musing on policing, from the Emerald Triangle.  

Advice & Consent 06: What does a 4-4 Court mean?

Advice & Consent 06: What does a 4-4 Court mean?

Direct download:  (mp3)

What does a 4-4 Court mean?



  • Fisher v. University of Texas, the affirmative action case.
  • Whole Woman’s Health v. Hellerstedt (abortion in Texas)
  • United States v. Texas (immigration DAPA/DACA) (what is it with Texas?)
  • Criminal procedure cases–Supreme Court rejecting a hem wholesale so far
  • Class action cases–ditto


  • Maybe not often are 4-4s issued, but even in cases of a fully staffed SCOTUS recusals can cause issues. I
  • Issues are being taken up at the Court and questions being asked.
  • Justices coming out of the gate saying “no big deal; we got this” to shore up confidence in the Supreme Court
  • Justice Kagan saying that they’re trying to avoid deadlocks (Supreme Court is Working Hard to Avoid Deadlocks, Kagan Says) trying to only pull cases where they won’t be closely split; so decisions all the way through – from cert to final judgement are implicated
  • Zubik supplemental briefing
  • How long will this will go on?
  • Examples of how what the Court does or does not do actually impact a number of issues: business, 4th Amendment issues – local law enforcement


  • On a case-by-case basis, it can swing either way substantively depending on your point of view of the Court of Appeals holding.
  • Untenable in the medium and long term because it hampers the Court from its role in arbitrating Circuit splits.
  • This is not ideal and is fixable based on decades of precedent. If we have a vacancy, the President nominates and the Senate considers and votes. Period.