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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)


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 26: Gorsuch on Social Issues (and more)

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

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


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

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

Not much news.

Gorsuch quietly meeting with Senators.

“Hey I’ve got an idea that DEFINITELY wasn’t a part of a season 5 episode of The West Wing!” (WaPo)

Hearings scheduled for week of 3/20 (The Hill) – “hearings will begin March 20, with questioning of Gorsuch scheduled to start the next day.”

The Gorsuch record on social issues (and more)

– This ep we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process.





  1. Can we believe Trump this time? Trump’s litmus test – overturn Roe


  1. Might not have ruled on abortion, but certainly has feelings he writes about in his spare time. (Adam will discuss more) Still has feelings he writes about while he’s on the bench, even though question of abortion he needed to answer.


Planned Parenthood Ass’n of Utah v. Herbert (839 F.3d 1301 (10th Cir. 2016)


Herbert, Republican Governor of Utah, ordered the state to stop federal funding ($272k) to PP Assoc. Of Utah.


10th Cir. granted a preliminary injunction to PP, saying PP Assoc. Of Utah was operating lawfully (in response to those fraudulent tapes) and the Governor’s personal objection to abortion was the motivation for blocking federal funds, and the Governor was violating the constitutional rights of PP Assoc. Of Utah by refusing federal funding


Neither PP nor Utah sought en banc review of the panel decision, BUT Judge Gorsuch dissented and would have granted en banc review and would have let the Governor defund PP


Judge Briscoe wrote separately (from the majority opinion) noting how extreme Judge Gorsuch’s position was – saying it was “unusual” “extraordinary” for him to do this sua sponte. She also went on to say that Gorsuch “mischaracterized this litigation and the panel decision at several turns.”


Okay, fine. But what about contraception? Ah, that religious liberty gets some respect….


  1. Bonus if you’re a big ol corporation. Not so good if you’re their minimum wage workers.

Hobby Lobby Stores, Inc. v. Sebelius (723 F.3d 1114 (10th Cir. 2013)) (en banc)  


Hobby Lobby, a closely-held corporation, thought that as part of their employer-sponsored health insurance plans they shouldn’t have to offer contraception because it conflicted with its religious beliefs.


Judge Gorsuch was part of a majority that said the Dept. of Health & Human Services couldn’t require such coverage. Saying corporations are people exercising religion for purpose of the Religious Freedom Restoration Act. This was upheld 5-4 in the Supreme Court.


But Gorsuch wrote a cute concurrence note to declare how much further he would go then the already conservative ruling in the 10th Circuit – something the Supreme Court didn’t even do in its decision. He said that not just corporations, but individual owners, could challenge the contraceptive mandate. Saying that he felt peoples religions trump individual rights and health care for women.


“All of us face the problem of complicity. All of us must answer for ourselves whether and

to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”


  1. Cool. You can have your religious liberty, but let’s not make anyone have to do any paperwork so someone can get their medical care.


Little Sisters of the Poor Home for the Aged, Denver Colo. v. Burwell, 699 F.3d 1315 (10th Cir. 2015)


The Little Sisters said that it would be too burdensome for them to opt out of providing birth control coverage by signing a form that would then trigger other provision for contraceptive coverage through their insurance provider.


The 10th Circuit said the opt out accomodate was enough.


Judge Gorsuch joined a dissent from denial of en banc review where he said they should grant review to rehear the challenge because he believed that signing a form was a substantial burden to the Little Sisters’ free exercise religion.


Where does this go? Well, I raise these because in a weird concurrence and a dissent, Gorsuch chose to talk about this even though he didn’t have to. When one gets on the Supreme Court, they become more themselves. I believe Justices can differ from their decisions as judges, but these examples make me quite certain we can believe Trump.




First, Gorsuch is clearly a philosopher. The basic rule is that people ideologically opposed to the president are suspicious of philosopher-nominees. Democrats who embraced natural law ideas during the 1960s when the Court in Tim’s favorite case, Griswold, cited the Ninth Amendment as one of the possible sources of a constitutional right to privacy. But after 10 straight GOP nominees, Democrats were very scared of Clarence Thomas’ writing about natural law and natural rights as important reference points when interpreting the Constitution. As Lena can tell you, then-Chairman Biden spent much of his first round of questioning trying to pin down Thomas on how he would use natural law to interpret the Constitution. And this makes sense. Natural law and natural rights are powerful theories. They can lead to ideas such as a constitutional amendment is unconstitutional if it violates pre-existing natural law/rights, and if your ideological opponent is using natural law, they can do a lot of damage to the Constitution that you believe in.


So, here we have Gorsuch, a Rhodes Scholar, who wrote a whole book on the Constitution and assisted suicide and euthanasia. And his view, based on both law and philosophical ideas about the meaning of life, is that there is no constitutional right to assisted suicide. That, by itself, is not the most controversial statement in the world. The Supreme Court has held the same thing, and there wasn’t a big fight about it.


But what does it mean that he’s written such a book? One, that he cares deeply about issues of what the Constitution says about life. Two, that his views aren’t based simply on precedent, on originalism, or other things judges base their decisions on. Their based on philosophical views on life. Not only that, but strangely, he said that the person who wants to die isn’t the only person’s rights at stake (such as a person who doesn’t really want to die but is pressured by family members). The two-persons are involved argument is usually made in the abortion context (when the other person people usually mention is the fetus).


Now Gorsuch expressly tries to separate what he writes in his book from what he thinks about abortion, saying, for instance, that since Roe decided the fetus does not have constitutional rights. But that’s pretty hard to understand. If you’re going to say that a hypothetical person who really doesn’t want to die but evades all the safeguards in a Death with Dignity Act in order to die because of family pressure has rights that have to be considered along with people who actually do want to die must be considered, are you really going to say that a pregnant woman’s views outweigh those of the fetus, the father of the fetus? What about the exact same situation? Where a pregnant woman or girl is being pressured by family to have an abortion but doesn’t want to? Shouldn’t that invalidate all abortion laws based on Gorsuch’s natural law/rights argument?


To cut to the legal realism argument, however, I think it’s pretty clear that Gorsuch wrote this book to signal his views on abortion and other controversial social issues while having plausible deniability should he be nominated for the Court.




Lena: A little big about John Finnis, Judge Gorsuch’s advisor: https://www.theguardian.com/law/2017/feb/03/neil-gorsuch-mentor-john-finnis-compared-gay-sex-to-bestiality




I’d like to focus on a gender discrimination case…  Strickland v. UPS


Carole Strickland, a salesperson for UPS sued for sex discrimination. She had a tough time of it. Shortly after a bad breakup, her bosses put her through the ringer… insisting (against her initial wishes) that she take medical leave. When she returned, they subjected her to micro-managy meetings no one else had to go through despite meeting or nearly meeting every sales quota thrown at her. At least one male member in the area ranked worse than her and never had to go through similar treatment. Co-workers said she was treated differently than the other men – for instance she couldn’t get important questions answered that would have helped her perform her job, while her male co-workers got their questions answered without a problem. The record showed pregnancy leave was frowned upon, and only reluctantly granted due to federal law. This was the environment that was the basis of the sex discrimination complaint. And the 10th Circuit majority said the record contained enough for the case to go to a jury.


But not Judge Gorsuch. In his dissent he wrote no reasonable jury would have found sex discrimination based on the record. This despite a whole host of things that suggested Ms. Strickland’s poor treatment could have been gender-based and that a jury should be the place to suss that out. Judge Gorsuch hung his hat on the testimony of the one other woman in the office who said she wasn’t treated differently than the plaintiff. But under settled 10th Circuit law that’s not enough… just because women aren’t universally discriminated against doesn’t mean one or more women aren’t.


It’s not that the record definitively demonstrated sex discrimination… but Judge Gorsuch’s colleagues held… and I would posit, most reasonable legal minds would concur… there was enough there for a jury to weigh the facts.


And that’s a problem. Judges are gatekeepers and have to do some degree of factual assessment before trial, but that bar is very low and favors plaintiffs in federal courts (yo, Professor Doernburg… I still got it!). A judge assumes everything on the record is true when making an assessment, and if there’s a question of fact… like there clearly was here… a judge passes it to the jury determine those facts.


It may be there was no sexual discrimination in this case… just awful management and bad behavior. But, Judge Gorsuch’s quick trigger in this instance dovetails with his attitude towards judicial relief generally… in other writings he wrings his hands over liberals misusing courts for relief, bemoaning the poor companies that have to defend lawsuits. This is an example of how he puts the thumb on the scale to deny a plaintiff a shot at discovery and a jury in a gender discrimination context.


Oh and for what it’s worth vis a vis last week… this also happens to side with a big shipping company over an individual… par for the course.


SCOTUS politics: a lifetime appointment in the context of the Russian allegations


Every day we seem to get closer to the most outlandish and absurd possibility that someone or some people in the Trump campaign colluded with Russian agents to impact the election. Given the lifetime appointment that is the SCOTUS seat, is it appropriate for Senate Democrats to filibuster this and future lifetime appointments (i.e. all judicial noms) until a complete independent investigation is done? Would framing a filibuster this way make it harder for Senate Republicans to go nuclear?

Lena: process politics not nominee – missing info: DOJ WH Pres Library) Sessions, Independence

Advice & Consent 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 23: Neil Gorsuch, Nuclear Nominee

Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.


Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

Direct download: Advice & Consent 23: Neil Gorsuch, Nuclear Nominee (mp3)

Neil Gorsuch, Nuclear Nominee: the record

AFJAC fact sheet (PDF) to tide you over. More in future episodes.

The Reaction


Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it… 60 votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly f*cked with the norms,” and (with apologies to Good Will Hunting)…. “Do you like apples? HOW DO YOU LIKE THEM APPLES!”


Universal, fawning, near drooling adulation and… “Hey! This 60 vote thing is bullsh*t. Let’s vote! We need 9! #doyourjob”

Past votes for SCOTUS seats (US Senate)

Trump’s Supreme Court Reality Show Was Not a Distraction, It was a capstone to a yearlong campaign to degrade the law and the Constitution. Dahlia Lithwick

SCOTUSBlog review of Gorsuch’s cases on key areas

Process update

The path ahead for Neil Gorsuch, Trump’s Supreme Court nominee (WaPo)

Filibuster and the nuclear option


Adam: My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster.  There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote.  It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore.  I think even Ds up for reelection will have to worry about being primaried if they break.  

Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years.  What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland.  Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.

QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record?  Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one?  The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG).  Here’s a possibility:  http://www.acslaw.org/acsblog/draft-prado-effort-launched

Lena: This any nominee should be able to meet the 60 vote threshold – an indication the person receives bipartisan support which is incredibly important now.

Layers to consider:

  1. Support/Oppose Nominee
  • Ds Positions:
    • Give Garland vote 1st
    • No because this is a stolen seat
    • Review the record, give full hearing and up-or-down vote
  • Rs Positions:
    • Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months
  • Factors:
    • Institutionalists who don’t want to change rules
    • 2018 Senate relections (8 Rs, 25 Ds (23 Ds, 2 Is who caucus w/Ds)
    • 2020 aspirations
  1. Filibuster Reform (change threshold from super majority to simple majority)
  • Ds more likely than ever to do this
  • Some Ds will be harder to convince
  • Probably a matter of timing
  • Rs will likely change filibuster rules then

Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before.  And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions).  Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.

Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.

We’re in a new SCOTUS paradigm. With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.


What Usually Happens & When for Supreme Court Nominees?

Based on Supreme Court nominations since 1975.

Advice & Consent 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 19: Transition turmoil + SCOTUS

Advice & Consent 19: Transition turmoil + SCOTUS

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

Advice & Consent 19: Transition turmoil + SCOTUS

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

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

No direct precedent

Probable Constitutional crisis™ after Jan 20th

President Obama unlikely to be into this option

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

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

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

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

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

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


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

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

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

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?


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

Interesting because she’s up for reelection in 2018.

Strong membership under the Ranking Member, as well.

Dan: Important on govt surveillance issues.

New names for The List and conservatives victory lap

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

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

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

Ted Cruz?

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

Tim: Holiday episode proposal: SCOTUS List Mock Draft!

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

Jefferson Beauregard Sessions, III

Lithwick on Sessions (Slate)

Reminding listeners why he was rejected as a federal judge

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

Already normalized?

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

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

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

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

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

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


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

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