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Advice & Consent 27: Judiciary Committee Hearing Preview

Advice & Consent 27: Judiciary Committee Hearing Preview

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

Advice & Consent 27: Judiciary Committee Hearing Preview

 

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

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

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

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

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

CRS report on Judge Gorsuch’s Record.

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

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

Followup from last pod

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

Judiciary Committee Hearing Preview

Overview of the Process

What “always” happens/what we should definitely expect

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

What are things that would make this hearing go differently?

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

Housekeeping

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

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

Advice & Consent 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 08: Will Trump’s rise kickstart Garland + Robert Bork 1987

On this episode… does the likely Trump nomination help Merrick Garland’s chances? And continuing our series on the ghosts of nominations past: Robert Bork 1987.

Advice & Consent 08: Will Trump's rise kickstart Garland + Robert Bork 1987

Direct download: Advice & Consent 08: Will Trump’s rise kickstart Garland + Robert Bork 1987(mp3)

Donald Trump helps Merrick Garland?

Donald Trump is the likely nominee of the Republican party for POTUS. Let that sink in. Now… does that mean anything for the Merrick Garland nomination? Some on the right think so:

Red State: Republicans Should Confirm Merrick Garland ASAP

MSNBC: Conservatives call for confirmation of Obama’s Supreme Court nominee Garland

Does this move the needle?

Ghosts of nominations past: Robert Bork (1987)

A little context: these hearings were within a couple of days away from the bicentennial of the Constitution, and this was frequently referenced throughout. I remember there were a lot of attempts to make 1987 as big as 1976 but it never really got up to that level. Also, there was a Presidential election going on and Judiciary committee chair Joe Biden happened to be running.

Judge Bork was nominated by President Reagan in 1987 to replace Justice Powell and as any listener of this pod surely knows, he was summarily rejected by the Senate 58-42.

He was a highly qualified nominee in the sense he had impeccable credentials: federal appeals court judge, solicitor general, etc.

The thing is you can be very, very talented but have outlier legal points of view that trump your academic and professional qualifications.

Make no mistake, Judge Bork was very political and an idealogue of the first order.

Saturday Night Massacre — Nixon reportedly offered Bork a SCOTUS seat for being try #3 as Solicitor General to fire Special Prosecutor Archibold Cox when the heat got turned up on the then POTUS. This was a contentious point for Bork’s nomination as it appeared blatantly political and possibly unethical.

His legal stances were based in Original Intent – judges shouldn’t go further in interpreting the Const. than the words themselves. Not a “living breathing Constution” kind of guy. For example:

One man one vote? No.

1964 Civil Rights Act? Nope.

Griswold? Eisenstadt? Roe? Privacy generally? No across the board.

Gender equality laws? Ha! No!

You’re gay? We’ve got special rules for your bedroom behavior too.

He was beloved by his fans and bemoaned by those who thought his views were anachronisms. He was the Justin Bieber of SCOTUS noms. A judicial Justin Bieber.

OPPOSITION

Swift and severe. Every left of center group spun up as they learned more about Judge Bork’s record. Every right of center group spun up to defend his record.

NAACP ED Benjamin Hooks  may have said it best – “we will fight it all the way – until hell freezes over, and then we’ll skate across the ice.”

They’re bug eyed zealots if you ask Sen. Alan Simpson. But this process is too politicized (eye roll). But I’m getting ahead of myself…

THE HEARINGS

Judge Bork’s hearing was a debacle for him. Setting aside the weirdness of his video rental habits being leaked to the City Paper (get your heads out of the gutter, he dug conventional dramas) it was Judge Bork who was his own worst enemy.

I’m also struck by THE COMPLETE LACK DIVERSITY during these hearings… All white men. So many issues were being discussed that were outside the scope of these peoples’ experiences… It was really striking to revisit it 29 years later.

I had forgotten it opened up with a trio of sherpas:

President Gerry Ford brought some instant star value (Go Blue)

Sen. Bob Dole came on as sherpa #2 – a much less genial one than the former POTUS.

And taking on sherpa #3 in the replacement role of the home state Senator but because Bork was a DC guy was MO Sen. John Danforth a former law student of his. Remember Senator Danforth… he makes an appearance next week!

Sen. Danforth described Bork’s philosophy as “judicial restraint” which caused me to snarf my beverage nearly 29 years later.

Then Rep. Ham Fish! He said Judge Bork had never been reversed by SCOTUS! So he’s GENIUS and TOTALLY mainstream because getting reversed is the only way you know that you’re out of the mainstream, right? RIGHT!?

Sen. Strom Thurmond (R-MS)

A (formerly) living breathing SNL sketch. BUT… interesting comments relative to today:

Because this process is well understood by the American people, any nominee selected by a President comes to the Senate with a presumption in his favor. Accordingly, opponents of the nominee must make the case against him.

I believe, as I have stated before, that the full Senate should make the final determination on all nominations. The confirmation process should not stop at the committee level. The Constitution requires the advice and consent of the Senate, not simply the opinion of any one committee. I am pleased that both Chairman Biden and the distinguished majority leader, among others, have indicated that they agree that this nomination should be dealt with by the full Senate

Sen. Edward Kennedy (D-MA)

Sen. Kennedy’s “Robert Bork’s America” speech is worth replaying here for the mic-droppy goodness.

In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.

Sen. Orrin Hatch (R-UT)

Tried to rebut the Kennedy opening but what stood out more was his view of the Senate’s Constitutional role:

The Senate, however, was given a checking function. In the words of Alexander Hamilton, the advice and consent function was to prevent “nepotism” and “unfit characters.” The advice and consent function is a checking function, not a license to exert political influence on another branch, not a license to control the outcome of future cases by overriding the President’s prerogatives.

Huh. Interesting. Look, I once saw Orrin Hatch at Dulles airport being really really nice to a kid in a wheelchair on a flight to Salt Lake City. Seems like a nice guy. But he’s politics through and through and flips on a dime when it comes to SCOTUS nominations.

Lots more from the other Senators and it’s all on YouTube.

QUESTIONS

Sen. Biden (D-DE)  took Bork on first with questions, particularly probing on whether the Judge found a general right to privacy in the Constitution per Griswold. This is where Bork tried to dodge… rather than say “hell no!” he tried to fudge it by saying Griswold was decided wrong but “who knows… maybe there’s another way?” and Biden didn’t seem convinced (or anyone else frankly).

Sen. Byrd (D-WV) was Senate Majority Leader running the Senate floor votes so he came in super late, but I thought his opening statement really got to the heart of the issue. It isn’t that people had a problem with Original Intent it’s the combination of that with a malleable view on stare decisis that was the problem for Bork. The record tended to show he’d have been way more willing to overturn cases of a certain stripe (i.e. civil rights, executive power etc.) in a very predictable (perhaps political?) way.

Sidebar: IMHO to this day, I think Judge Bork would have had a run on SCOTUS if it weren’t for the fact that he demonstrably favored substantive conservative outcomes. He tried to dodge that by cloaking Original Intent as neither liberal or conservative (true) but he used it in a way that was demonstrably policy driven. Sen. Byrd was one to note this,

Senator Edward Kennedy (D-MA) just dug into Bork… asked if Griswold is no good and there’s no Constitutional right to privacy and a state legislature can pass laws in this area willy nilly, what if a state passed a law compelling abortions? Or something else where the politics were flipped on their head? Then he pulled out his pocket Constitution and dropped a proverbial mic.

Bork was big on saying “there’s privacy all over the Constitution” as a way of deflecting, but his philosophy was the rights were specific and very, VERY narrow. And that’s where Kennedy’s compulsory abortion line tripped him up.

Paraphrasing: Yo, if you nutballs think  there’s a right to privacy in the Constitution that protects private conduct in bedrooms then that means Bowers v. Hardwick‘s upholding of anti-sodomy laws is wrong and that’s CLEARLY BANANAS y’all!

Senator Orrin Hatch (R-UT) – ‘MY HAIR IS ON FIRE!!!” The first real moment when the hearing felt anything but polite. Like Sen. Thurmond before him, the questions were super softbally leaders that were more designed to create perfect presentations of a reasonable man with reasonable opinions. Hatch was way off in tone because if you came into the hearing on his questioning you would have thought Kennedy and Biden had him in a rack and thumbscrews beforehand.

Sidebar observation: EVERYONE LOOKS FUNNY. EVERYONE. There was even a question about Judge Bork’s awkward beard by an utterly bemused Senator Heflin.

Unisex bathrooms came up in the context of the 14th Amendment with Sen. Deconcini – you might not be too surprised that Judge Bork wasn’t a fan of unisex bathrooms.

Answered a question on evolution of his points of view by dropping a lengthy Ben Franklin quote. Very pre-Twitter.

Under questioning from Sen. Specter (then GOPer) Judge Bork defended a 1971 memo in which he suggested there was legal support for separate but equal principles that the Court upheld in Plessy. At the committee, he unequivocally supported the outcome in Brown, but didn’t really rebuke that 71 memo. That hurt a lot and was part of a big trend… “Hey I’m a law professor and I need to play around with crazy controversial points of view… but that’s just playing! OF COURSE I’m super mainstream!” He also would protest that when he changed his mind (Civil Rights Act for instance) that it happened and he shouldn’t have had to send out a new release to prove it happened when it did. Problem was, his latter day conversions seemed pretty… Well, latter day. And convenient.

Sen. Howell Heflin tackled privacy in his signature jowly southern drawl. Amazeballs. Bork held firm: one can’t derive a general right of privacy from the Constitution. He kind of danced away from abortion which of course was closely tied to the issue.

Strom Thurmond jumped on a stare decsis grenade tossed by Sen. Heflin about Roe. Heflin backtracked to ask about it generally. Bork gave a pretty canned answer that had a hole the relative size of a Mack truck could drive through.

Interesting: Bork denied he was agnostic as was reported during the hearings. That came up in Sen. Heflin’s opening remarks… it was a weird issue because it broke in the opposite way one expects in the modern politics. Anyone that mentioned it suggested it was a non-issue either way.

I’m most struck with how easy it would have been for a casual observer to listen to Bork and feel like he was totally reasonable. The presentation and confidence he had was very strong… His paper trail however? Couldn’t run from that.

OTHER TESTIMONY

Several days of testimony followed, but all sides had dug in by then and it’s not clear much changed from the testimony.

OPPOSITION AND COLLAPSE

The hearings hurt Judge Bork generally and didn’t succeed in painting the picture of a mainstream conservative. Sen. Biden was running for President during the hearings and his candidacy collapsed right in the middle of them due in part to a plagiarism charge regarding his speeches.

The Judiciary Committee voted against Judge Bork’s nomination by a vote of 9-5, but as we mentioned on past shows that didn’t end the process, just give the full Senate a “no” recommendation.

Biden led the group of Senators in declaring opposition following the hearings, which led to many Repblicans charging him with running a rigged hearing. Despite this most give him credit for running a fair hearing and credit for framing his opposition away from substantive issues like abortion and more on the big ticket issue of Judge Bork’s originalism being incompatible with mainstream Constitutional thought, particularly his opposition to general unemnumerated privacy rights that the Court held in Griswold.

As it became clear that the nomination was going down, GOP support went silent. This rubbed Judge Bork the wrong way for the rest of his life.

The full Senate rejected the nomination mostly along party lines, but 2 conservative Democrats voted yes (Senators David Boren (D-OK) and Ernest Hollings (D-SC)) while 6 moderate Republican Senators voted no (John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT)).

CONCLUSION

To “Bork” is now a verb in many a dictionary with a use unlike what really happened in ‘87. He really Borked himself by being too extreme and worse… Too professorial (he said he wanted to be on SCOTUS because it would be “an intellectual feast” — he didn’t get into the serving the country thing). Sen. Kennedy in particular gets flack from the right for the Borking, but he was actually pretty respectful in tone and didn’t ask any question in a gotcha kind of way. It was the answers and how they were delivered that sank Bork. Also, I’m struck that all these tough out of bounds questions were TAME by today’s standards and how they were characterized later by Bork himself as “furious attacks.”

Simply put, you can be a genius and have tons of fans… But that doesn’t automatically make you suitable for the Court. And Judge Bork epitomized that.

The downside of the Bork hearings? Good luck getting real answers out if ANY nominee. Judge Bork pushed the chips all in and revealed his points of view, many well out of the mainstream. The revelation taught later nominees that they had best keep right down the middle as closely as possible… Which led to surprise stealth candidates who, well… Surprised (Justice Souter) and contentless answers from others (Chief Justice Roberts).

This nomination battle was a continuation of the Rehnquist/Scalia hearings and certainly set the table for future nominations. I’ve referred to it as the “original sin” in the past, but I think that’s wrong… I think it was the perfect storm of a brilliant but flawed nominee meeting the new era of SCOTUS nomination scrutiny and probably best marks the beginning of the end of the time when Democrats and Republicans could battle on the Hill then trade stories over a friendly drink at a local pub.

Judge Bork was a Judicial Justin Bieber and he has his beliebers still… And they warm up their baby baby baby’s every time a new nom comes up.