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Advice & Consent 32: One Last Time (the season finale)

Advice & Consent 32: One Last Time (the season finale)

The ragtag gang of the usual suspects returns “one last time” (for this season anyway) to discuss the new Justice, the politics of the nomination process and more. For the first time all five member of the ragtag gang of the usual suspects alumni association are on the same pod… enjoy, and thank you for listening. We’re cicadas on this, so if there’s a new nomination, take a look at scotuscast.com and you may well find a new season of the pod…

Direct download:  Advice & Consent 32: One Last Time (the season finale) (mp3)

Advice & Consent 32: One Last Time (the season finale)

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


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



  • 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.


oppose Judge Gorsuch

Advice & Consent 30: Almost to nuclear, listener mail and 3 principled reasons to oppose Gorsuch

The Senate Judiciary Committee voted on a party line vote to refer Judge Gorsuch to the full Senate. Most whip counts show 41 Senators who intend to vote no on cloture. We’re probably going nuclear. So perhaps its time for listener mail? Also, three principled reasons to oppose Judge Gorsuch as Associate Justice.

 oppose Judge Gorsuch

Direct download:  Advice & Consent 30: Almost to nuclear, listener mail and 3 principled reasons to oppose Gorsuch (mp3)

The Judiciary Committee votes

Yadda yadda yadda, Gorsuch got reported out of committee on party lines

The votes for cloture aren’t there

CNN, ABC, etc. WaPo graphic.

But are there non-nuclear options?

Can the Senate’s “2 speech rule” can be used to limit debate without going nuclear?

The Federalist says yes.

Adam pulls out a mic to drop on The Federalist

There are reasons why the 2 speech rule hasn’t been used to cut off debate before (and note to The Federalist, the Civil RIghts Act of 1964 passed because the Senate invoked cloture, not because of the Two-Speech Rule–I think the author knows that and uses the weasel words that the 2-speech rule was a “key component” to passing the act rather than saying it was what ended the filibuster. Here’s a description of the filibuster vote: 

First, let’s say that 10 Dems burn their first speech before realizing this is the Dem strategy. Well, given that there have to be at least 41 senators to sustain a filibuster, that still leaves 31 senators with 2 speeches and 10 more with one speech, meaning there are 72 speeches left to go before the Senate can confirm anyone, and those 72 speeches will then take a long time. And the Senate cannot move onto other business while the filibuster is pending (absent unanimous consent). Also, Democrats have the ability to force Republicans to come to the Senate floor in the middle of the night to vote on motions to adjourn (which can be decided by less than a quorum and, if they happened to be successful, restart the 2-speech rule because a new legislative day starts).

Second, all the Senate needs to do to get around the 2-speech rule is start a round of debate on a new issue. Therefore, Republicans would have to be extremely vigilant and immediately table motions to postpone indefinitely,To postpone to a day certain, or to commit, each of which can be propounded while another question is pending and each of which would create a new subject if debate started on the motion and therefore would allow senators who had already spoken twice on Gorsuch to speak again. They would also have to make sure they didn’t accidentally start a new debate topic by, for instance, beginning a debate on whether a senator’s remarks violated the rules of decorum, as they did with Sen. Warren, because once again, this would be a new topic of debate.

All that is to say that I once read through the Senate rules, hit on Rule XIX and said, “hey, maybe there is another way to stop a filibuster.” But then I realized that I wasn’t the first young D.C. activist to read the Senate rules, so maybe it was a bit more complicated. Since then, I’ve both studied the two-speech rule and asked people who worked in the Senate about it. Which leads me to my answer: That’s not the way anyone will cut off the Gorsuch debate.

We got mail

A thoughtful email from a conservative (!) listener prompts our response.

Hello, to begin with I want to thank you for this very informative podcast. Everyone of the “gang” seems to have good knowledge of the issues relevant to the Supreme Court and history of the Court. I enjoy the chats and I always learn something from each episode.

Being a conservative, for the most part I’m not bothered by the clear and strong liberal leaning of the panel. I often agree with your criticism against the Republican party and even when I disagree I understand where you’re coming from.

I do want to mention a couple of things that I think the panel missed because of their liberal leaning. These are my opinions.

1) It is not reasonable to filibuster Gorsuch on merit grounds. Given the support he has received from his fellow judges and lawyers, it’s not reasonable to doubt his merit or mainstream status. If he is not mainstream, the word has lost its meaning. (I understand the desire to filibuster to make a political statement.)


Tim: Not sure we agree on the meaning of mainstream in this context. I would propose Gorsuch is part of judicial movement conservatism that is not mainstream, which can be reasonably disagreed with and therefore he may be reasonably opposed. We throw around terms like “mainstream” and “qualified” and often don’t define these words the same way. I think the three of us agree it’s perfectly reasonable to support or oppose a nominee based on their judicial philosophy, even if they have impeccable education and professional credentials. You can be a likeable person, raise a good family, have loads of lawyers say nice things about you and may still be reasonably opposed on the merits of your judicial philosophy. And that goes for everyone, not just Judge Gorsuch.

Lena: Agree on not agreeing with the meaning of mainstream. And that’s probably the rub. Maybe he’d be mainstream a long time ago but a man who can’t say Griswold is rightly decided and somehow says he can’t imagine a state limiting access to contraception (even though he did wish to limit access to contraception or at least allow corporate employers to do so) doesn’t fit my definition of mainstream.

Admittingly, I don’t expect someone I would embrace fully on the bench. But someone I can respect because of how they get there is a really terrific start. I can’t get there with Gorsuch.

Adam: You can’t judge by a nominee’s supporters. There is a whole game out there of people trying to get better positions in DC some day (or just being part of the old boy’s network). E.g., Estrada’s support of Kagan.

2) Similarly, it is utterly un-reasonable if Republicans voted down Garland in an up-or-down vote. I think Lena mentioned that she would be okay with it. I think she was not being totally honest. Garland absolutely should have been confirmed in an up-or-down vote.


Tim: Lena is very honest, but thanks. Had Senate Republicans taken the political “risk” of opposing Garland because of a disagreement over judicial philosophy, that would have been preferable to what happened. However, Republicans calculated they could avoid this political by declaring SCOTUS nominating season over with no basis in law or fact. I believe the technical term for this is “bullshit.” (Sounds like we agree on that).  Had the GOP Senate followed norms and voted Garland down, I’m sure we wouldn’t have agreed with the outcome, but we would have been much more “ok” with things compared to what went down. Which was, again, bullshit.

Lena: Yup. Pretty much really telling the truth there. Sure, I would’ve hollered about how horrible he was treated if voted down, but would rather he be voted down and we get ourselves a new nominee (something totally possible when the Rs have the majority, BTW) so we can at some point get to this.

I’m particular bent out of shape because I keep hearing that Ds have and/or would’ve done this and have advocated for it too. But I just don’t see that 1) that’s the case (Kennedy in 1988, an election year; Bork getting a hearing and a vote) or 2) it’s true. I think the minimization of “this is just politics” is really harmful.

3) It is often said that Garland is the most qualified supreme court nominee ever. What I find interesting is that if that’s the case, why didn’t Obama appoint him for the (not one, but) two vacancies he filled earlier? Do you really think Kagan is more qualified than Garland? I suspect it’s your liberal leaning that prevents you from discussing this.


Tim: I think I respectfully reject the premise of the comment. An observation in response: Conservatives seem to have fealty to identifying “the” (meaning singular) “best” person who should always get the nod for anything. Life – and by extension SCOTUS noms – is so much more a shades of gray thing. There are a limited number of people who are qualified to serve, but it’s a pool, not an ordinated list. A timely analogy is it’s more like the NCAA tournament. Does the #1 seed of the tournament always end up #1? Ask Villanova… they’d say, no! But Gonzaga and Carolina certainly qualified to get in and one will be crowned national champion tonight despite not being “the” #1 team. Likewise, one person’s “best” candidate may not get the nod, but someone who is qualified does. Politics, timing, etc. all weigh in. So if someone says Garland was somehow more qualified than Kagan or Sotomayor, (a) that is far from a universal opinion, and (b) who cares so long as the three of them were qualified? It’s the President’s role to suss out the pool and choose a name. The Senate takes it from there.

Adam: My real answer: The context is that we’re living in a time where, absent a desire to compromise, it makes no sense for either liberals or conservatives to appoint older people who stand a greater chance of being replaced by a POTUS with the other philosophy, so age has to be a factor in qualification. Garland is 8 years older, and therefore not as qualified on that measure.  

Gotcha answer: Kagan was nominated to the DC Circuit by Clinton. If Rs hadn’t refused to give her even a hearing (sound familiar), she’d have been pretty qualified. Being blocked by Rs, she did pretty well for qualifications: Harvard Law dean and SG. If Obama was to pass her over for not being a judge, it would mean eliminating a very qualified person because of GOP malfeasance, which seems wrong.

Complicated answer: Picking people on qualifications alone isn’t the best idea. Look at Taft: prosecutor, private practice, territorial governor, SG, AG, state trial court judge, federal appellate judge, president of the United States, for heaven’s sake. Beats Garland by quite a bit. But few list him as a great justice. Beyond a certain point, qualifications alone don’t really make for a better justice

Lena: I think there are other aspects and qualities beyond sterling credentials. Questions a PResident must ask himself or herself or whichever organizations they outsource it to. What would the Court benefit from? This is when things like age, ideology, professional and demographic diversity is important. And I can absolutely see how and why President Obama may not have prioritized a moderate white man at that point in his presidency.

There are many reasons someone gets the nod as Tim says. Kagan very well qualified. May not have served on the bench (for reasons Adam noted), but that can be an asset. As can having someone who was in the legislature. Also, a-okay if we go with a nominee who didn’t go to an Ivy League school.

I think Garland got the nod last year because Rs supported him and he wanted to show he was coming to the table with a nominee they could accept; someone who could get 60 votes. But they wouldn’t entertain this.

Tim: This was a really thoughtful email and we appreciate it… I think my favorite aspect was when the writer said we’ve been able to convey where we’re coming from even when he disagrees with the point. That’s kind of the north star for this show, so thanks for listening.

Three principled reasons to oppose Judge Gorsuch as Associate Justice

No ordinary conservative

Gorsuch is a judicial “movement” conservative that has been an active force in political and legal shifts away from settled areas of law. The aim of Gorsuch and fellow members of The Federalist Society is no less than a complete dismantling of norms and laws that produced important holdings for the last 50+ years (sometimes more). Make no mistake: his nomination isn’t intended as a replacement of Scalia, it’s an enhancement.

Paradoxically, we don’t know enough about his aims and intentions either. The modern stance of nominees before the committee and the American public is to clam up on any topic likely to elucidate even a glimmer of an idea of their stance on important topics of the day. This opacity isn’t limited to Republican nominees… it was a feature of nominees by Presidents Clinton and Obama as well.

Stolen seat

It’s almost a cliche by now that this seat was “stolen” by Republican members of the US Senate. While we’ve noted before on the pod that the intentional withholding of the Senate advice and consent process of Merrick Garland by Republican leaders was not per se unconstitutional, it certainly violated the norms of the US Senate, and — perhaps more importantly — the will of each and every Obama voter in the 2012 election. Observers may laud the demonstrations following the election of President Trump, but they should also cast a disdainful look at the failure to do so during a shameful quiet period in the spring of 2016.

President under fire

The questions surrounding the link between confirmed Russian meddling in the 2016 Presidential election and the campaign itself undermines the legitimacy of the sitting President. Although there is no evidence that the election results themselves are questionable, the possibility that a member of the President’s campaign — or even the President himself — aided in the interference of our election process undermines the moral authority for this President to make any appointments that could outlive his term of office until those questions are investigated and answered by an independent authority.


A little nuance to #1: the lack of answers which I think made Judge Gorsuch hard to take seriously and trust. (e.g., QFRs) And the “Ginsburg rule” is not a thing.

This is a lifetime appointment. This is really serious.

This is precisely what McConnell wanted. And I think he wanted it because he cares about his party (and corporate influence that the Court unleashed in Citizens United) and does so at all costs. To date, he seems to evade any backlash and isn’t held accountable.

Tim: Congratulations Mitch McConnell. Your legacy is just about cemented. You’ll get drinks bought for you in the back room of cigar smoke-filled clubs, with slaps on the back and knowing smiles from old dudes for for the rest of your life. You win. Oh… but maybe not. Because a lot of people really know what went down beyond the likely confirmation of someone who shouldn’t be there this round. Yes, this was a game of political brinksmanship that you won, but the long game and the judgement of history counts for something. I hope you don’t think your legacy is a reflection of those drinks and backslaps. It’s far different, and far more embarrassing for its political crassness in the face of institutions far, far greater

Advice & Consent 28: Gorsuch before the Judiciary Committee

The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!

Advice & Consent #28: Gorsuch before the Judiciary Committee

Direct download: Advice & Consent #28: Gorsuch before the Judiciary Committee (mp3)

Gorsuch before the Judiciary Committee

Lena gives a rundown

Day 1: As anticipated, all introductions.

  • Grassley opens
  • Gorsuch welcomes himself and his family (awkward hug w/wife), introduces clerks, assistant, others
  • Grassley Opening:
    • lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.
    • Vote 4/3
    • Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)
    • Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers
    • Ends w/a Scalia Quote
  • Feinstein Opening:
    • First to invoke mistreatment of Chief Judge Garland
    • Mentioned process: litmus test issues
    • Laid groundwork for threads talking about corporate power (TransAm), Chevron, campaign finance, Roe, originalism
  • Bounced back and forth b/t R and D Committee members
    • R themes: Gorsuch won’t answer Qs; Gorsuch is qualified
      • Biggest theme: Ds shouldn’t make this political
    • D themes: Garland shadow; judicial independence; litmus tests; dark money; Roe; Chevron

Day 2: Round I questions, 30 minutes/Senator

  • Grassley: more Scalia, trying to inoculate Gorsuch vs judicial independence line of inquiry; myth of unanimous decisions;
  • Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about
  • Hatch: hate Chevron so loves Gorsuch; mentioned bipart support
  • Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ
  • Graham: pats himself on back mostly
  • Durbin: mentioned complicity, Gorsuch’s mentor Finnis
  • Cornyn: talked a lot about law school duration; civic engagement; originalism
  • Whitehouse: money in politics, dark money; anschultz
  • Lee: one of the lawyers “in teh well” in front of Gorsuch
  • Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;
  • Cruz: romance and basketball
  • Franken: Mr. Maddin case; Garland’s feelings
  • Sasse: mutton busting
  • Coons: Complicity and rel liberty
  • Flake: jokes and trout
  • Blumenthal: Trump and judicial independence
  • Crapo: dormant commerce clause; Chevron
  • Hirono: Korematsu
  • Tillis: ?
  • newSenatorKennedy: ?

Lena’s Take Aways:

  1. Rs are chastising Ds for making process “political”
  2. Bar is low: Graham expected Judge Judy
  3. Questions and technique of questions matter
  4. So many themes to pick up, was the D message diluted?
  5. Different Versions of Gorsuch – See examples of folksy Gorsuch here

Tim gives his 10 thoughts

1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.

2 – Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.

3 – The media will be coronating him if they haven’t already started, largely because of #2.

4 – A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?

5 – Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.

6 – I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.

7 – Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.

8 – Best D: tie (Klobuchar and Franken). Next: Blumenthal and Whitehouse.

9 – Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.

10 – “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.

Adam gives his thoughts

Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdf Strict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals like Akhil Amar have taken up the originalist mantle).

1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They’ve either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.

  1. The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it’s senators from the party that controls the White House.
  1. Right now, senators act outraged when a nominee they don’t like won’t answer questions, but turn a blind eye when nominees they do like do the same thing.
  1. On the bright side, just because the job of judging should be apolitical, that doesn’t mean the job of selecting judges should be. Unlike Lena, I don’t think there is anything wrong with litmus tests and surely they are used. It’s ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It’s the nature of having elected officials in charge of judicial selection that they will use litmus treats. What’s wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren’t used and would be wrong if they were used.



Tim’s Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.

We will only do another pod this week if something unexpected happens – which, by definition, we don’t expect

We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.

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 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 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.

Advice & Consent 17: The two-month-long podcast that may last five years?

The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election…

Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination on March 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees – a flip flop from their position of let the next President decide…

Sen. Richard Burr (R-NC) says no SCOTUS confirmations for a President Clinton. Sight unseen.

Sen. Ted Cruz and Sen. John McCain say similar/parallel things.

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing!  What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam: Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.”  The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800.  In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges.  Jefferson refused to seat these judges, creating a constitutional crisis leading to Marbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841.  John Tyler succeeded him (Tippecanoe and Tyler too).  This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay.  These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office.  There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president.  Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees.  But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868.  No one would deny that this was a constitutional crisis.  President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president.  Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all).  Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson.  No one would deny that this was a time of constitutional crisis.  The Civil War had just ended.  A large chunk of the nation was under military occupation.  There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united–and radical–Congress opposing him.  Finally, we had a Supreme Court whose most momentous decision to date, Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices.  The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when the Lochner-era Supreme Court stymied the New Deal.  Everyone listening probably knows about this from their history class, so there’s no need for detail.  There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based on the Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip to Paul Waldman in the WaPo for that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena: Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

Also, because Hamilton: See Geof Stone’s piece on how partisan complete obstruction is. http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&utm_source=ccb-morning10&utm_campaign=ccb-morning10-20161103

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena: I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

  • Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.
  • Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS – and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam:  Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice.  What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where they don’t go for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena: The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?


  • Evidence of maybe yes:
    • Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)
    • White House says Garland will remain nominee in lame duck (Talkmedianews)
    • Senators like Jeff Flake and Orrin Hatch suggest an HRC win might mean the most conservative option remaining is Merrick Garland
  • Evidence of no, this gets ugly: basically everything else
    • Pressure from the left to go more liberal and claim mandate from election
    • Pressure from the right to dig in and maintain “Scalia seat”
    • Aforementioned comments from Sen. Burr
    • If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.


  • I hope so. Serves most people’s best interests.
    • Rs aren’t united on this.
    • Levers – 1st Grassly, 2nd McConnell
      • Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.


Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that’s enough. I’m out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” – elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim: If this is a real thing, then I have one name: Thurgood Marshall. [If it’s not, let’s drop it from the rundown on the show]

Lena: Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

  • A maybe? Less elitist speculative list: http://ijr.com/2016/07/662707-clinton-insiders-list-potential-supreme-court-nominees-the-top-pick-will-make-obama-very-happy/

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim: I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena: Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out – actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam: I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

With the likelihood that the GOP will take control of the Senate in 2018, do we foresee any Justices taking an early retirement?

Adam: I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seemingly no longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena: Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

A happier note to end the show…

Congratulations to retired Justice John Paul Stevens on seeing his beloved Cubs win the World Series for the first time since he was… well the 96 year old SCOTUS alum never saw his Cubs win since it took 108 years for them to do it.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

In this episode we chat about the SCOTUS question in the third presidential debate and explore the new forms of obstructionism on the horizon.

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

Direct download: Advice & Consent 16: “One Last Time” for the debates and increased obstructionism in 2017? (mp3)

Merrick Garland at 219 days

  • Today as we record the show (10/20) marks day 219 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. Stay tuned til the end of the show for a programming note…
  • Senator John McCain (R-Ariz.) said this week that Senate Republicans will move to block any Supreme Court nominee made by a Democratic President.
  • On the other hand, Senators Orrin Hatch (R-Utah) and Mike Lee (R-Utah) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) try to appear reasonable. TRY…
  • Also, some cracking… Senator Jeff Flake (R-Ariz.) said “If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That’s what I’m encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?


  1. I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.
  2. My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.
  3. I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the  two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.  
  4. Pleased Clinton mentioned the current vacancy – and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.
  5. A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.


Secretary Clinton, Mr. Trump, welcome. Let’s get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it’s great to be with you, and thank you, everybody. The Supreme Court: It’s what it’s all about. Our country is so, so — it’s just so imperative that we have the right justices.

Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent. And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don’t think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it’s absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important.

I don’t think we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that is guns.

Secretary Clinton, you said last year, let me quote, “The Supreme Court is wrong on the Second Amendment.” And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What’s wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn’t mean that I want people who shouldn’t have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton’s answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP: Well, the D.C. vs. Heller decision was very strongly — and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

WALLACE: Well, let me bring in Secretary Clinton. Were you extremely upset?

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there’s no doubt that I respect the Second Amendment, that I also believe there’s an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald’s been strongly supported by the NRA. The gun lobby’s on his side. They’re running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we’re going to protect and defend the Second Amendment. But we’re going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am — I don’t know if Hillary was saying it in a sarcastic manner, but I’m very proud to have the endorsement of the NRA. And it’s the earliest endorsement they’ve ever given to anybody who ran for president. So I’m very honored by all of that.

We are going to appoint justices — this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let’s pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that’s the issue of abortion.

TRUMP: Right.

WALLACE: Mr. Trump, you’re pro-life. But I want to ask you specifically: Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes — in fact, states — a woman’s right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I’m asking you specifically. Would you like to…

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it’s not only about Roe v. Wade. It is about what’s happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he’s in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women’s rights to make their own health care decisions.

WALLACE: Secretary Clinton… CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I’m going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

WALLACE: Mr. Trump, your reaction? And particularly on this issue of late-term, partial-birth abortions.

TRUMP: Well, I think it’s terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that’s OK and Hillary can say that that’s OK. But it’s not OK with me, because based on what she’s saying, and based on where she’s going, and where she’s been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that’s not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I’ve had the great honor of traveling across the world on behalf of our country. I’ve been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment…

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.


1) I wrongly predicted that Wallace would play it straight.  Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best.  Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the term https://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did.  Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results.  And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups.  Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed.  So I want to highlight a more interesting chance to follow-up.  If Wallace had said, “You frame your opposition to Heller in terms of toddlers shooting people.  But Secretary Clinton, the District of Columbia gun law that was overthrown in Heller was in reality a complete ban on owning a handgun.  Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself.  If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?”  Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly.  Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination.  Sad trombone for less than a full sentence for Citizens United.  Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change.  Sad trombone for three debates and no mention of the corporate court.

4) Forbes contributor Michael Bobelian made the interesting point that, in the post-WWII era, Nixon was the first to campaign explicitly on a promise to reshape the Supreme Court. http://www.forbes.com/sites/michaelbobelian/2016/10/20/clinton-trump-feud-over-supreme-court-fueling-a-campaign-battle-ignited-by-nixon-in-68/2/#9b486841a153.  It was part of Nixon’s (failed for 1968) Southern Strategy.  Before that, we had had 30 years of peace on the issue of the Supreme Court at the presidential level.  So, we’re all living in Nixonland. Take a bow, Rick Perlstein. https://www.amazon.com/Nixonland-Rise-President-Fracturing-America/dp/074324303X


The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump — as Lena noted — the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn’t exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald’s answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn’t understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structure even and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)


The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland’s nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley: I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it’s Trump or Ms. Clinton will make the next appointment as far as I’m concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there’s been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can’t have one rule for Democratic Presidents and another rule for Republican Presidents so we’re being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley: If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don’t expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland’s nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view. I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn’t elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there’s a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there’s nothing in the Constitution that says the Senate has to move ahead. That’s the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what’s your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what’s wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There’s nothing wrong with the checks and balances in our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it’s being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim: This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam: The lie about 1968 shows just how unmoored the argument against holding a hearing is.  First of all, what Grassley is talking about is a filibuster of the Fortas nomination.  The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas.  Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House.  That would be just about the dumbest political strategy in history.  And of course that’s not what happened.  A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it.  And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrd https://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Sen. John McCain!

HRC wins, Senate goes to the GOP.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. (CNN)


Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam: The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more.  That said, 10 if GOP retains the Senate. 1 if they do not.  They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, Nomi Stolzenberg, describes the Senate filibuster as political Lochnerism–a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people.  This brings up interesting issues that probably go beyond the scope of this podcast.  But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract.  But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others.  It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority.  But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion).  So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice.  If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.


McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis – where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.


Tim: 9/10 – I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all… if there’s a GOP Senate.

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

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

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

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

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

Three big holdings end the SCOTUS term

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

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

Washington Post


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

NBC News


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

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

And here is Linda Greenhouse’s take.


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

Mic Drop


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


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

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


Lena:  ABA well-qualified?

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

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

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

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

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

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

(as of 6/27/2016)

President Barack Obama

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

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

83 current vacancies

14 known future vacancies (more expected)

29 judicial emergencies

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

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


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