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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)

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.)

RGOTUS RESPONSE:

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.

RGOTUS RESPONSE:

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.

RGOTUS REPONSE:

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.

Lena

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 29: A Hearing Wrap-up + a Political Assessment

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

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

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

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

The RGOTUS this week

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

Lena goes on another law-talky podcast.

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

Hearing wrapup

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

Political Assessment

 

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

Adam

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

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

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

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

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

Lena

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

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

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

Tim

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

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

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

Advice & Consent 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.

 

Housekeeping

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)

Housekeeping

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

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