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Justice Gorsuch*

Advice & Consent 31: Justice Gorsuch*

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

Justice Gorsuch*

 

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

The Senate votes, Justice Gorsuch* confirmed

*Seat stolen by GOP, 2016-2017.

Before reactions… a toast to Sen. Merkley for his voice filibuster this week. All night long, y’all.

Reaction to the filibuster, the nuclear explosion and Justice Asterisk?

Adam: I think filibusters are dumb. The Senate’s filibuster history is a total accident. The VP one day just up and ruled the previous question motion out of order because there was no reason to have a rule cutting off debate when there was such a tiny body. Then at some point, when the Senate got larger, people realized that unlimited debate could stop action on things they didn’t like. At one point, we did have people like Daniel Webster and Henry Clay in the Senate, but that isn’t the way it’s been for most of our history. It’s been more like people like Mitch McConnell and Ted Cruz, orators so grating, you have turn them off.

That said, what’s worse is changing norms and rules right and left to steal a seat and then fill that seat.

And what’s even worse is people who don’t understand the rules. Hey, Senate Dems, an appeal of the ruling of the chair is debatable and therefore filibusterable.

[Tim: Jon Lovett’s 7-point timeline of how we got here.]

Lena: I love deliberative representative democracy. Legislation should take time because it should be done well. Nominations should be thoughtful, and that whole Article II Section 2 Advice and Consent piece seems to indicate is important.

I appreciate that this is all politics and results of elections. And I don’t think elections should be viewed as a winner takes all. I’m weary of the tyranny of the majority. And so, I appreciate tools available to the minority party so that they, too, can have a voice. What I feel about the filibuster is probably some idealized version that politicians would take to the floor and espouse their views. They could signal issues with a debate, and people, particularly other politicians would listen. The filibuster is therefore one of the tools I thought was important. However, the way that it has been used is not what what I believe it was intended to do. It’s become ineffective.

For what happened, I felt that this change shouldn’t be called nuclear because let’s not desensitize ourselves. It’s a change in rules. But I do think this move is horrible. This is what happened b/c this White House and Senate majority are in the winner-takes-all mode.

To get to this point, it’s been political and everyone is blaming the other party. And all under false equivalencies (as we’ve discussed previously) and a sense of inevitability (McConnell made this clear long ago).

In the Executive Business meeting on Monday and in most press statement, Rs have been lamenting “having to make this change” it didn’t seem like anyone could persuade McConnell. And maybe they didn’t want to. McConnell high 5ed Cornyn after the change and then McConnell all thumbs up.

Disappointed: Schumer et al should have used the 30 hours post cloture to debate this nomination. At a minimum, make speeches and use the tools and time.

Justice Asterisk? He’ll be forever known as the litmus tested justice. I hope that instills in him an even further appreciation for the need to be independent. To check himself as he hears cases and writes opinions. But I’m not hopeful based on his record. Sure, there will be times people will tell me “see, not so bad.” But I’m starting to believe Trump and people’s past record that got them to the point where folks say “you need this guy b/c he’ll overturn Roe and the NRA’s version of the Second Amendment”

[Tim: Rick Hasen Q to his Twitter followers: When will Justice Gorsuch* first rule in a way contrary to conservatives? My answer: Never.]

Tim: I’ve always felt ambivalent about the filibuster. I mentioned it on episode 018, aka the “let’s talk everyone off the ledge” episode of the pod. Also known as “Tim slaps an explicit tag on the pod.”  

I understand why the Dems filibustered and I understand why the GOP went nuclear, even if I still bristle mightily at the larceny of the seat.

Other non-SCOTUS-focused media seemed surprised there was so little energy behind the two sides, even if there was high antipathy. I think the reason was very clear… by about 10pm ET on November 8th… before the final votes were cast, but right about when it was clear Trump was going to win… today’s outcome was preordained. The identity of Justice Asterisk was unknown, but the dance card was set. Perhaps that’s the saddest part of all of this… the Court may one day revert to being above politics, but I can’t forsee a day in my lifetime when it won’t be. Too many burned bridges.

I question what the new paradigm is… It may be seats on the Court are only filled when the same party holds the Senate and the White House. That means long-term vacancies during divided government. It means POTUS and Senate campaigns with SCOTUS shortlists. It seems to be the inevitable outcome here, but I hope I’m wrong.

Cases coming before SCOTUS – WaPo

Voting restrictions in NC

Whether a bakery can refuse a cake to a gay couple

Whether self-protection outside the home means 2nd Amendment scrutiny covers some carry laws

etc.

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

Reaction?

Lena:

  • Lower courts: over 130 lower court vacancies already # of judgeships likely to increase
  • Blue slips: selection vs. confirmation
  • Changing blue slip rules could be pretty bad for a number of reasons:
    • Who carries the water?
    • Who will further be annoyed?
    • Advice and consent changed even more

 

Adam: Before I started working on judicial nominees, I had no idea the extent to which home-state senators were involved in judge-picking. When the president and both home-state senators are from the same party, the senators basically pick the trial court judges and sometimes the court of appeals judges. When at least one senator is from a different party, they basically have a veto on the court picks as long as either their party controls the Senate or they don’t abuse it.

There are not a large number of examples of Judiciary Committee chairmen holding hearings and votes without receiving blue slips from both Senate even though they have officially left themselves room to ignore the blue slips. Orrin Hatch did it for 4 nominees in 2004 under heavy pressure from the rest of his caucus, but he wasn’t happy about it. I get the sense that Grassley really doesn’t give a darn about the norms of the Senate (hi, ex-Sen. Norm Coleman) and McConnell certainly doesn’t. And Trump assuredly doesn’t. I think it’s over.

Tim: Bottom line: this is court packing, pure and simple. And court packing by eliminating a norm that assured moderation in states with split party representation. Norms aren’t laws and the GOP knows it can change these norms without getting nailed on it. They did it for Garland, and they’re doing it for lower court judges should this blue slip rumor be true.

The modern nomination process has produced a judiciary as political as the other branches

Agree or disagree?

Tim: The Court has been ideologically divided along different lines for a long time… back to Marbury days. But since the Bork nomination, the politics of nominations has politicized the judiciary in a discomfiting way. The only ameliorating thing is the lifetime tenure and that may matter less over time. It’s time we acknowledged this in the nomination process and end the nomination “rules” fictions so we can properly assess these nominees through the very real ideological/political lens rather than pretend otherwise.

Adam: I think it’s an inevitable result of the parties evolving from ideologically heterogeneous to ideologically homogeneous. The reason why there were so many “mistakes” liberal justices appointed by Republicans and one conservative appointed by a Democrat, Byron White, was at least in part because presidents had to appease different ideological wings of their own party. (It might even explain Souter since George H.W. Bush, his chief of staff who pushed for Souter, John Sununu, and Souter himself came from the moderate New England wing of the GOP, of which Susan Collins is the hardy surviving member.) Now that the most liberal Republican in each house of Congress is more conservative than the most conservative Democratic member, there is a huge downside and no upside to a Republican choosing an ideological liberal or a Democrat choosing an ideological conservative.

So we therefore have a Supreme Court where, like Congress, the most liberal Republican appointee, Kennedy, is more conservative than the most conservative Democratic appointee (either Breyer or Kagan, depending on your perspective). I do think that life tenure, the robes, and the common law needs to base judicial decisions in reason and precedent does still remove the judiciary from politics in a way that Congress is never removed. Example: conservative Kentucky senator (and awesome pitcher) Jim Bunning installed his own son, David Bunning, as a district court judge. Seems like he would just be a politician in judicial robes Yet Bunning was the one to enforce the Obergefell decision and hold Kentucky Rowan County official Kim Davis in contempt.

Lena: Almost: In our lifetime, we haven’t had a majority of Supreme Court justices who probably are in line with where we tend to be. But the perception hasn’t been there and that’s pretty deliberate. There’s been a movement afoot for decades to try to make sure there would be more reliable justices who aren’t disappointments (Chief Justice Roberts is still invoked in angry rants by Rs). This seems to be the trend.

Perception is perhaps even more important. The process for how judges get to the bench = political. But our system of government and legitimizing our justice system depends on people believing the system is independent and fair. The courthouse doors have to be open to everyone. These confirmation processes can be helpful in terms of raising awareness and educating people about the courts. But the R said/did vs D said/did doesn’t help.

Litmus tests and campaigning with a list of potential nominees also serves only to politicize this process.

Some ways to depoliticize: timelines, terms

Programming note: Season finale in a few weeks

We have surprises and special guests. No peeking.

 

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

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

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

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

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

The RGOTUS this week

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

Lena goes on another law-talky podcast.

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

Hearing wrapup

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

Political Assessment

 

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

Adam

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

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

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

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

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

Lena

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

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

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

Tim

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

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

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

Advice & Consent 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 24: So-called judges and framing the Neil Gorsuch debate

Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate

Stop us if you’ve heard this one before… a President walks into a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we’ll have to be more specific? President Trump is at it again with “so-called judges” remark as his travel ban EO works its way through the lower federal courts … perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.

Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate

 

Direct download: Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate (mp3)

So-called judges and framing the Neil Gorsuch debate

POTUS and the Courts

Trump lashes out at ‘so-called judge’ who temporarily blocked travel ban (WaPo)

Are the President’s comments about the federal courts dangerous?

Lena: Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:

  1. Degrading systems of justice
  2. Creating mistrust
  3. Signaling to supporters on individuals, potentially causing personal harm
  4. Distracting us from other dangerous stuff he’s doing

Tim: It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.

Adam: To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence.  I wrote a blog post explaining why here.

Travel Ban appeal before the 9th Circuit

Many of us listened in on this

Framing: Trump’s vision of the courts.

Hey, Democrats, forget Gorsuch. Target Trump over the Supreme Court.

Lena: This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.

How Trump Chose His Supreme Court Nominee (Adam Liptak, NYT, 2/6/2017)

  • Judge Gorsuch is really well known, with degrees from Columbia, Harvard, Oxford.
    • Worked against him b/c Trump was trying to make a more anti-establishment pick (which seemed to indicate an aversion to the Ivies.)
    • Concern about his record and releasing his name early to create a backlash given how conservative he is
  • Trump
    • Wanted the best; most Scalia like (as if it’s still the 1980s)
    • Wanted to be assured it wouldn’t be a mistake (a la Justice Souter and Chief Justice Roberts)
  • Vetting
    • 1/5 Gorsuch met w/McGahn for personal vetting; then met with Vice President-elect Mike Pence (“particularly involved”); Reince Priebus(White House chief of staff); Stephen K. Bannon (chief strategist); Mark Paoletta, (VP Pence’s counsel); and Don McGahn (WHite House Counsel)
  • Gorsuch emerged as the “clear winner”

This entire process raises concerns

  1. Independence
    • What does Trump think he’s getting out of this – litmus test, loyalty, EOs
    • Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?
  2. What about his writings did they love?
  3. How is Gorush going to show a strong check/independence when the President is undermining the entire judiciary

 

Adam:  we’re really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate’s decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.

This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life.  Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.

But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people’s will?