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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 20: January 3, 2017

Advice & Consent 20: January 3, 2017

The end of the year special… a viable, Constitutional path to confirming Merrick Garland on January 3, 2017. But is it practical? Or even a good idea?

Advice & Consent 20: January 3, 2017

Preamble: January 3, 2017

There are a lot (A LOT) of pie in the sky, save the country from itself, never going to work, clickbaity theories on things these days. Most of these are sheer hackery.

HOWEVER. One thing caught our attention as it had to do with the process of confirming (or not confirming) Merrick Garland, which is kind of what this show’s been about. We think it’s been dismissed by a lot of people and embraced by others. Either way. It’s worthy of discussion.

At the outset, we are definitely aware that Chief Judge Garland is going back to work at his old job.

The Working Theory

With Biden in the chair on Jan. 3, the Senate can confirm a renominated Merrick Garland. Here’s how. (Daily Kos) by David Waldman

  1. On January 3, 2017 the US Senate will gavel into session with 34 Democrats, 2 Democrat-leaning Independents and 30 Republicans. There will be 34 Senators-elect awaiting to be sworn in.
  2. Vice President Joe Biden is the person who gavels in the new Senate session
  3. Ordinary norms of Senate procedure would have VPOTUS recognize the soon-to-be Majority Leader Mitch McConnell (R-KY) and the Senate procedures would kick in with swearing in the new Senators and the new Republican majority.
  4. HOWEVER… at that precise moment, the VPOTUS has the conch (as it were) and nothing legally prevents him from recognizing another Senator. In fact, the Senate rules provide that the presiding officer must recognize whoever addresses him first, and no one traditionally has a right of first recognition, a norm that changed in the early 20th Century. Let’s say Biden chooses the highest ranking active Democrat there, Sen. Dick Durbin (D-IL). This is not illegal, just a change in the norms of Senate behavior. Very much like not holding hearings on a SCOTUS nomination. Or a POTUS candidate not releasing tax returns. Or a PEOTUS having business conflicts of interest.
  5. Let’s say Sen. Durbin – over the out of order protests of Sen. McConnell and others – does the following:
    1. Allows the president to submit a renomination of Garland through his messengers
    2. Allows Durbin to make parliamentary motions to make Garland’s nomination the pending business.
    3. Allows Durbin to use the nuclear option mechanism to get a parliamentary ruling from VP Biden (or from the majority of sitting senators should Biden rule against Durbin that the Senate rules are not in effect at the beginning of a new Senate, and default rules (similar to House rules) are in effect instead.
    4. Following an affirmative ruling, the Senate confirms Garland
  6. The Senate as constituted votes OR Sen. Durbin suspends without yielding to any Republican and they cut an alternative deal.

Confirmation chances?

(see whip count doc)

Tim: my count is 34-32 for confirmation… Sens. Heitkamp and Manchin vote no and the rest of the votes fall along party lines with the independents and Dems voting for confirmation and GOP against.

Lena: Maybe. Probably along Tim’s lines. But it requires one big influencer to make it happen – Uncle Joe.

Hesitation re: Senators Manchin (WV), Heitkamp (ND), others more in the center who are up for reelection unlikely to join.A lot of others (Stabenow (MI), Klobuchar (MN), Tester (MT), Donnelly (IN)) up for re-election – also may be unlikely if think could be a detriment

Is this legal/Constitutional?

The rule changes and precedent-breaking here are vast enough that they’re changes we usually associate with a banana republic, but if the Dems are willing to do this… do you think this works, meaning is it legal, Constitutional, and within Senate rules and procedures.

(Discussion on the mechanics only here)

Adam: The Supreme Court says one Congress cannot bind a subsequent Congress, and the Constitution says the Senate makes and interprets its own rule. Those to doctrines together make this legal since interpreting the rules of a previous Congress not to apply to a new Congress is therefore a perfectly licit interpretation

Lena: Probably, but I think it could be tied up in the courts for a while.

Tim: This appears to be wildly against Senate norms, but I don’t see a hole in this that would prevent it from working. It would amend Senate rules from a prior Congress and, as Adam notes, not violate any Constitutional framework. The vote would be legal and in quorum.

For the record, there are those that say this is “fantasy.” (Sean Davis, cofounder of The Federalist lays out his counter argument in an article in – you guessed it – The Federalist). Long story short, there’s an argument that Senate rules for the presentation of credentials (i.e. all the new Senators) takes precedence over everything and Durbin’s motion(s) would be out of order or otherwise contrary to Senate rules.

However, Adam’s contention that the nuclear option kills this rule strikes me as a compelling rebuttal to Davis.

Is this a good idea?

This burns up a working Senate and possible sets up a Constitutional crisis. But it’s legal and sets things “right” by getting Merrick Garland on the Court. Is it a good idea? Is it worth it?

Lena: No. Afraid that people are holding on hope and will only be further disappointed. Someone needs to govern, I’m concerned about norms.

Adam: if you believe our government is completely broken, then yes. Otherwise, no. Because the new government would likely pack the court with new seats in response, do you want the Court to be a central issue, this is a great way to do it, but it won’t create a working liberal Supreme Court majority.

Tim: I won’t lie… I have been attracted to this theory. I think the Dems would be fully justified to tear up norms in history’s biggest and boldest example of tit for tat. However, I recognize this damages the Senate as a working body for a long time, perhaps permanently and that’s why I lean away from it. It’s a bad idea.

That said… With a President Trump coming 17 days later, perhaps that’s a feature and not a bug? But by hobbling the legislative branch, does this empower the incoming POTUS all the more? Also, will CJ Roberts have any authority to choose not to acknowledge a Justice Garland? And would Trump do anything to prevent Justice Garland from serving (bar him from the building?) after Jan 20th? Trump’s White House counsel is Donald McGahn, a former FEC member, and has a similar personality as The Donald. Expect boundary pushing legal opinions from him on this and other things.

On the other hand: if there’s a possibility this doesn’t work, you just handed President Trump a slot on the DC Circuit too. So there’s that. I’m also not sure if there’s a political backlash that would happen where Dems would reap a worse whirlwind in 2018 (and perhaps 2020) than expected.


Is this going to happen? Will it be a vote with the mini-Senate or a deal? How does PEOTUS Trump and CJOTUS Roberts react?

Adam: This requires someone to have a burning rage at how the Garland nomination was treated. It’s possible they 32 Senate Ds and Biden have this rage. However, the president must share this rage tool. He doesn’t. How often have you heard Obama passionately discuss this issue? Zero times? So we’re just wasting your time here with a fun scenario.

Lena: No. I think there’s a better chance of a recess appointment, which I give a .001% chance. Moreso, I think the chances of it happening are 0% based on 1) President Obama 2) Chief Judge Merrick Garland (already saying will be back to work in January).  Garland is scheduled to hear oral arguments starting Jan. 18 which to me indicates they don’t have the nominee on board.So if something like a recess appointment or this Jan. 3 option happens, it’d 100% be with another person and not sure who that would be..

Tim: Democrats don’t do things like this. I think POTUS sees a post-Trump future where institutions still matter and this would be contrary to that.

Bonus: Recess Appointment?

Advice & Consent 07: Nominations Past Vol. 1 – Rehnquist/Powell 1971

On this episode… With the airing of Confirmation on HBO, the ghosts of confirmations past have been brought back to the public eye. The next several episodes we’ll talk about some of them.


Direct download:  (mp3)

April 28, 2016…


Today’s the day CJ Garland should have started his confirmation hearing. 42 days: that’s the number of days on average for the past 30 years that Supreme Court nominees have waited for a Senate Judiciary Committee hearing. And since President Obama nominated Chief Judge Merrick Garland on March 16, that means he should have started the confirmation process April 28th (today)!

Nominations Past Vol. 1 – Rehnquist/Powell 1971


Disclaimer I chose this hearing for personal reasons.  My father-in-law testified at the hearing, and I was very interested to read the transcript and see exactly what happened.  I love Supreme Court hearings.  I decided I wanted to be a lawyer after the Bork hearings.  The Thomas hearings, which we’ll hear about later, were quite a spectacle, and I’ve had personal involvement in the nomination fights of Roberts, Alito,

Background: Rehnquist and Powell were nominated at the same time.  They testified separately–they weren’t on a panel together–but they testified in succession and the outside witnesses were not separated.  

The nomination fight happened at the conclusion of a very busy period for Supreme Court nominations.  Turnover not seen since the 1930s when FDR, after his court-packing scheme failed, nevertheless got to reshape the Court.  In 1968, Warren announced retirement.  LBJ tried to fill his seat with Associate Justice Fortas (and nominated Homer Thornberry for Fortas’ seat).  The Senate filibustered the nomination.  Nixon came into power and nominated Burger whom the Senate confirmed.  Then Fortas was forced to resign his associate justice seat because of financial improprieties.  Nixon nominated first Carswell and then Haynesworth and both were rejected, the first because he was an on-the-record segregationist and the second because of both his civil rights record and his general mediocrity.  Nixon then nominated Harry Blackmun who was seen as conservative but, pushed by revulsion from the religious right over Roe, turned very liberal.  

Then both Hugo Black and John Marshall Harlan (Harlan the younger) decided to resign and Nixon sent six names to the ABA, which has since Eisenhower’s time rated judicial nominees, including the first woman to receive such consideration.  The ABA said it would not recommend any of the six, so Nixon put up surprise nominees Lewis Powell and William Rehnquist.

Powell was a bar leader, previous president of the ABA and practicing lawyer in Richmond, Va.  Rehnquist was an Arizonan but had been in DC to clerk for Justice Robert Jackson and came to DC with Nixon and was head of the Justice Department’s Office of Legal Counsel.  When statute or the White House asks the Attorney General for advice, the Office of Legal Counsel does the research and writes the opinion (unless of course, the AG declines to ask OLC to do that work on a particular issue or, once the OLC opinion is written, the AG rejects the OLC’s position).
The hearings had gotten more contentious following Brown (as well as Miranda, Mapp, Gideon, but we shouldn’t kid ourselves, Brown is the reason, not criminal procedure).  Thurgood Marshall had been questioned for 5 consecutive days.  The chairman of the Committee and the next two senior Democrats were southern segregationists.  The Republicans had moved from pro-civil rights to the nascent Southern Strategy following their winning the Deep South in 1964 behind Civil Rights Act opponent Barry Goldwater.
Feel for the hearings:  One Senator on the Committee was also present for the Roberts/Alito hearings that we’ll discuss at the end:  Ted Kennedy.  Strom was present for Bork and Thomas but retired in ‘02  But these hearings were so long ago, that one of the most active questioners now has his name on the building in which the Senate now conducts Supreme Court hearings:  Phil Hart.  Another active Senator was the father of a Senator at the time of Roberts/Alito:  Birch Bayh.  Finally, one Senator referred to himself as one of the young senators, but not from our perspective, he was the son of Gene Tunney, the heavyweight boxing champ in the 1920s.
There were other famous (or at least DC famous) names:  Robert Bork wrote a letter in support of the Rehnquist nomination, an Arizona senator cited as “Sandra D. O’Connor” was quoted by an Arizona congressman in favor of the nomination.  Rep Mo Udall (D-AZ) put in a statement supporting Rehnquist (his son and nephew both became Senators).  And, as an aside, my wife’s and my property law professors spoke in favor of the nomination.
Some things were very different.  For example, the word abortion was not mentioned until page 450 or so of the 498-page transcript.  For the record, when the Court decided Roe a little more than two years later, Rehnquist was one of two dissenters while Powell was in the majority.  When abortion came up, it was because a group of anti-abortion rights Long Island women testified that the Senate should inquire about the issue.  The next panel consisted of an anti-abortion man, and he commented that he was impressed by the “bevy of beauties that had come before” him and how disappointed the senators who were called away by a roll-call vote must have been because those women were so “pleasant to look at.”
When another panel of women was called, consisting of the head of the National Women’s Political Caucus and the head of NOW (these two panels were the only women to speak in the 498 pages), one of them testified that a dean at Harvard had said that they had decided to increase law school class size and therefore were likely going to admit more women because it was a choice between women and “homosexuals and cripples.”  (The first Supreme Court decision striking down an anti-gay law, Roemer v. Evans, was 25 years away with Rehnquist in dissent/the Americans with Disabilities Act was 20 years away.)
Another difference:  The chairman of the Committee, segregationist Sen. James Eastland (D-MS) asked only whether Rehnquist received the top rating in the Martindale-Hubbell legal directory and how long he had held that rating.  He asked no questions of Powell and indicated he was voting in favor of both nominees.  However, as different as he was from the liberal wing of the party, he was such a partisan that he let all the Democrats ask their questions first before the Republicans.  The next two questioners, as a result, were segregationist Democrats with liberal Democrats following and the Republicans beginning at suppertime.
Some things were not so different.  Liberals repeatedly complained that Rehnquist refused to answer questions, hiding behind the need to keep the advice he gave the attorney general and the president confidential and the need not to prejudge cases that came before him.  Civil rights then as now was a big topic as was whether the Founders’ intent/original meaning of the words was the only factor that mattered in constitutional interpretation (those who say Scalia invented originalism are dead wrong), the standard for overturning precedent, and whether judges could separate themselves from their personal views.
As happens at every hearing these days, at least one senator stressed to Rehnquist that he was young and this was a lifetime appointment, so he might still be on the bench in the year 2000 (true.)

Four very big issues in the hearing:  

  1. Rehnquist’s opposition to a Phoenix ordinance banning discrimination by bars and restaurants, which Phoenix adopted at the same time as the federal Civil Rights Act of 1964,
  2. whether Rehnquist had engaged in voter suppression by going to black precincts in Phoenix and asking intimidating questions about the AZ Constitution to those standing in line,
  3. Rehnquist’s support for warrantless wiretaps if the matter involved domestic national security, and
  4. to show perhaps that domestic national security was a real issue then, whether Rehnquist had supported a declaration of partial martial law when anti-war protesters tried to shut down the federal government on May Day 1971 by clogging the commuting arteries (the DC Metro was still several years from opening).

Women’s rights barely made an impression, although that was about to become a huge battle.  Rehnquist and Powell both voted in Frontiero v. Richardson soon after confirmation to prevent sex discrimination from being treated with as much suspicion as race discrimination by the Supreme Court, but Powell and Rehnquist both voted no.  When the Supreme Court compromised on intermediate scrutiny for sex discrimination, Powell said yes.  Rehnquist still said no.
My father-in-law pointed out that Rehnquist’s view on segregated restaurants was so extreme that at a time when ¾ of the Senate was voting for a law banning such discrimination on the federal level, Rehnquist was attacking such a law at the state level.  Moreover, even Barry Goldwater, who voted against the Civil Rights Act of 1964 and soon thereafter became the first Republican to sweep the Deep South in history said that he voted that way because he thought Congress did not have the power to act, but he supported the local Phoenix anti-segregation law.  My father-in-law also pointed out Rehnquist’s extreme anti-desegregation views involving schools and his troubling record on voter suppression.
Powell was controversial because of speeches he had given decrying the solicitude of the Warren Court with criminal defendants, his attacks on leftists, his presence on Richmond and Virginia state school boards during massive resistance, and his membership in segregated golf clubs.  But he was a former ABA president, very much a John Roberts old-boys club man, and he had a lot of liberal support as a result.
Concluding Issue from hearing:  It turns out the Committee was unaware of the most important writings in the record of both Rehnquist and Powell.
For Rehnquist, he clerked for Justice Jackson in 1952 when Brown v. Board first came to the Court (it stayed there for 3 years before the Court resolved all the issues) and Rehnquist wrote a memo saying that Plessy had been correctly decided.  It was leaked on the eve of the Senate vote after the hearings were concluded.  Rehnquist said that Jackson had asked for a devil’s advocate position, but while Jackson did write devil’s advocate opinions that he never published, his other clerks said he had never asked for such a devil’s advocate informal memo.  In another memo, Rehnquist wrote that white people in the South don’t like colored people, and the Court had to face that fact.
For Powell, it was what’s now known as the Powell Memo, a memo he wrote to the head of the U.S. Chamber of Commerce that suggested capitalism was under attack from Nader-ites and other leftists including academia, politicians, the courts, and the media, that the business community was too blase about this fact.  He suggested the Chamber of Commerce engage in a great propaganda war, developing talking points, demanding equal time on campus for conservatives, demanding the same from the media, getting more involved in politics, and most importantly for his nomination, fighting in the courts on behalf of big business.  This led to Heritage, a different role for AEI, Cato, Chamber of Commerce amicus briefs, the work toward Citizens United, and more.
If either of these had come out before the hearing, the result might have been a lot different.
Vote: Rehnquist won confirmation 68-25 (he won chief justiceship 25 years later by a similar margin but that was with Republicans in control of the Senate, not Democrats).  Rs voting against

Brooke (MA) (first African American since reconstruction)

Case (NJ)

Javitz (NY).  
Other interesting no votes:  Gaylord Nelson (WI) founder of Earth Day, Fulbright, Gravel (do people remember him from ‘08? He threw a rock in the water), Kennedy, Scoop Jackson (the Lieberman of his day), and 3 losing presidential candidate, Humphrey, Mondale, McGovern.
Interesting yes votes: Margaret Chase Smith (voted against Carswell and Haynesworth) (didn’t actually vote, but recorded in support), Pell (of Pell grants fame) possibly the most liberal vote in favor.
Powell vote: 89-1.  The one nay vote came from Senator Fred Harris (D-OK) (he also voted against Rehnquist).
The big surprise:  The states rights revolution started by Rehnquist.  States rights was not a part of the hearings at all.  Rehnquist won one of the only states rights victories between 1937 and 1995 in National League of Cities v. Usury (there are traditional areas of state control where feds can’t intrude).  That was overturned, but he won a more lasting victory when he was chief by striking down 2 statutes on 10th Amendment grounds and several more on 11th Amendment grounds.
The predictions were right.  Rehnquist was hard right.  Powell was center-right.

On civil rights:  Rehnquist never decided a case involving race discrimination claims in favor of a minority claimant.  The one area in which he sided with the civil rights claimants was sex discrimination.  
Both Powell and Rehnquist helped stop federal enforcement of school desegregation cold with cases like Milliken v. Bradley saying that you couldn’t desegregate across local school district lines in almost any case.  But Powell cast the deciding middle-ground vote allowing affirmative action in college for reasons of diversity, but not past society-wide discrimination.
Already discussed women’s rights.
They both voted to curtail rights of the accused, but when the chance finally came to overrule Miranda, Rehnquist blinked in the 2000s.  (Powell had long since left the Court).
A big issue at the hearing, warrantless wiretapping in the name of domestic national security, came up almost immediately in the Keith case (United States v. U.S. District Court).  Powell wrote the decision stating that such wiretaps were unconstitutional if it was purely a domestic issue.  Rehnquist recused himself because he dealt with the issue for the Nixon administration.  By the time it became an issue again, post 9/11, both were gone from the court.

NEXT WEEK… Volume 2: Robert Bork (1987).