Trump’s First Appellate Judicial Pick?

by Jonathan H. Adler

All eyes may be on President Trump’s nomination of the Honorable Neil Gorsuch to the Supreme Court, but there are over one hundred additional vacancies on the federal courts. At some point, President Trump will have to begin selecting lower court judges. Is it too soon to speculate on who these nominees might be? Perhaps, but if pundits can talk about the 2020 presidential race (as some have), we can indulge at least a little speculation.

One of President Trump’s first nominations to the appellate bench may be one of the finalists for the Supreme Court nomination: Judge Amul Thapar, who currently sits on the federal district court for the Eastern District of Kentucky. According to numerous reports, Judge Thapar was one of a handful of potential nominees who met with the President, largely at the urging of Senate Majority Leader Mitch McConnell. In addition to being a federal judge, Thapar is a former U.S. Attorney. He has substantial private sector experience and has taught at law schools on the side.

Among the current appellate vacancies is a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit. An additional Kentucky seat will open up at the end of this month. With McConnell in his corner, this would seem to make Judge Thapar a near shoo-in for a seat on the Sixth Circuit. So later this spring, when the White House unveils its first slate of appellate nominations, do not be surprised to see Judge Thapar on the list.

Cooper Out for Solicitor General

by Jonathan H. Adler

Politico reports that Chuck Cooper, a former Justice Department official who is close with Attorney General Jeff Sessions, has withdrawn his name for consideration as Solicitor General. The story quotes Cooper’s statement:

I am deeply honored by any consideration that I may have received by Attorney General Sessions and President Trump for appointment as the Solicitor General, but I have asked them to discontinue any further consideration of me for that critically important position

As I noted here, the other leading candidate for the position has been George Conway, a prominent New York litigator who is also Kellyanne Conway’s husband. Unless a dark horse emerges, it would seem that he is likely to be the next SG.

Update: According to this CNN report, in addition to Conway, there are two other prominent conservative attorneys under consideration to be Solicitor General, Christopher Landau and Kannon Shanmugam.

This Day in Liberal Judicial Activism—February 10

by Ed Whelan

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

This day in Liberal Judicial Activism—February 9

by Ed Whelan

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

Shameless Schumer

by Ed Whelan

Never mind (as I noted last week) that the Washington Post’s Fact Checker, Glenn Kessler, has already explained that there is not, and never has been, a 60-vote “standard” for Supreme Court nominees. Senate minority leader Chuck Schumer continues to propagate the silly notion that such a standard exists.

For seven of the eight current Supreme Court justices, the senators unanimously consented to affording them a straight up-or-down vote. The lone exception was Samuel Alito, whose nomination then-Senator John Kerry tried to filibuster from the ski slopes of Davos, Switzerland. So while there is one recent precedent for an irresponsible Democratic filibuster effort against a superbly qualified nominee of a Republican president, there is no broader practice that supports Schumer’s talk of a 60-vote “standard.”

To be sure, Schumer remains free to try to rally his fellow Democrats to filibuster the Gorsuch nomination. As I’ve explained, all things considered, I’d be happy to see him try. But Schumer’s effort to pretend that this wouldn’t be an extraordinary step shouldn’t be taken seriously by anyone.

Senator Shaheen: No Filibuster of Gorsuch

by Ed Whelan

On the Senate floor yesterday evening, Democratic senator Jeanne Shaheen of New Hampshire strongly declared that neither she nor any of her fellow Democrats she’s “talked to” have any intention of filibustering the Gorsuch nomination. Here’s the Congressional Record transcript of her remarks (page S845):

I wanted to respond to my colleague from South Dakota because I think for Senator Thune to come to the floor and castigate Democrats for holding up Judge Gorsuch, who has just been nominated, and for suggesting we are going to filibuster, the fact is, throughout most of last year we saw the Republican majority in this body hold up the nominee of Merrick Garland, President Obama’s nominee.

For the first time in history [sic -- not true], this body refused to hold a hearing on a nominee for the Supreme Court, refused to give an up-or-down vote, and to suggest that we should not get a fair hearing on the nominee to the Supreme Court — Judge Gorsuch — I think is just not [something that's]* going to be good for the American people.

Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote. Everybody I have talked to agrees he should get a hearing and an up-or-down vote. [Emphasis added.]

And here’s a video that captures the last part:

This would seem to be “game over” for any Democratic filibuster effort.

I will note that Shaheen’s communications director promptly insisted on Twitter that Shaheen didn’t mean what she said and that by “up-or-down vote” she “meant a cloture vote”! So it’s possible that Shaheen will try to backtrack.

* As the video shows, the transcript is mistaken when it says “someone who is” (which makes no sense).

Does Anyone Really Not Understand This?

by Ed Whelan

On SCOTUSblog, law professor Michael Gerhardt offers a good primer on what lies ahead for Judge Neil Gorsuch in the confirmation process. Gerhardt, who teaches constitutional law, has advised the Clinton White House and Senate Democrats on various Supreme Court confirmation battles.

Because the elementary point is somehow still contested by some, I will highlight that Gerhardt recognizes that Senate Republicans had the constitutional power to defeat the Garland nomination by inaction (even as he opposed their strategy):

The Constitution barely sketches the process for making Supreme Court appointments. Article II provides the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Besides the fact that Article I empowers each chamber of Congress “to determine rules” for its internal governance, the Constitution confers discretion on the president and the Senate over how to exercise their respective authorities.…

Once there has been a Supreme Court nomination, senators can exercise their “Advice and Consent” authority in several ways. They can withhold their advice and not undertake any other action, as the Senate did with President Barack Obama’s nomination of the highly regarded judge Merrick Garland to the seat opened as a result of the death of Justice Antonin Scalia almost a year ago. They can defer to presidents, as they did in approving all nine of President Franklin Roosevelt’s Supreme Court nominations. They can hold hearings and decide to take no further action, as occurred when the Senate could not invoke cloture to stop a filibuster against President Lyndon Johnson’s nomination of then-Justice Abe Fortas as Chief Justice of the United States. They can hold hearings and vote against the nomination, as the Senate did when it rejected President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987. They can hold hearings and approve the nominations, as the Senate has done since 1900 with virtually every Supreme Court nominee with strong credentials and mainstream constitutional views. [Emphasis added.]

Just one observation on Gerhardt’s repeated “They can hold hearings and …” line. As I’m sure Gerhardt would agree, and as is implicit in his first paragraph, senators don’t have to hold hearings in order to proceed on a Supreme Court nomination. The Constitution says nothing about Senate committees or hearings, and no hearing on a Supreme Court nominee took place before 1916. That said, the hearing is now a routine and accepted feature of the process (and my clarification here certainly isn’t intended to suggest that it be bypassed).

ACLU’s Disabled Review of Gorsuch

by Ed Whelan

Well, this is curious.

On the ACLU’s website, Claudia Center has a piece claiming, as its title blares, that “Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases.” Center invites “attention to [Judge Gorsuch’s] decisions on disability rights” and says that two of his cases “stand out.”

Oddly, though, Center doesn’t provide links to either of the two cases that she says she wants to draw attention to (even as she includes several other links). Gee, why might that be?

Perhaps because anyone looking at Gorsuch’s two supposedly “troubling” opinions would readily discover that each was unanimous and that each was joined by a very liberal Clinton appointee (Carlos Lucero in one, Mary Beck Briscoe in the other). Perhaps because anyone reading those opinions would discover that Center’s account of them is not trustworthy.

Let’s first consider Gorsuch’s opinion in Hwang v. Kansas State University (joined by Lucero).

The plaintiff in the case, Grace Hwang, was an assistant professor at Kansas State. Upon learning before the fall term that she needed treatment for cancer, she sought, and Kansas State gave her, a six-month paid leave of absence. As that six-month period was expiring, she sought additional leave through the entire spring semester. Kansas State refused, and Hwang sued under the federal Rehabilitation Act, claiming that she had been discriminated against on the basis of disability.

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, Hwang had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. (By contrast, Gorsuch spells out, “an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job,” and “allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation.”)

No one who reads Center’s account of the case would understand any of this. Center would have us believe that Hwang asked merely “for further short leave” because of a “flu epidemic” on campus. But Gorsuch’s opinion makes clear that Hwang wanted the entire spring term off and that she was complaining that she wasn’t being treated the same as those university employees who were eligible for “sabbaticals lasting up to a year.”

The second case that Center criticizes is Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. (joined by Briscoe). 

Gorsuch’s opinion ruled that parents who withdrew their autistic son, Luke, from a public school in order to place him in a private residential program were not entitled under the Individuals with Disabilities Education Act to recover from the school district reimbursement of their tuition expenses for the residential program. Specifically, Gorsuch’s opinion determined that the public school had been providing Luke a “free and appropriate public education” (“FAPE”) that satisfied the statute.

Although you wouldn’t know it from Center’s account, Gorsuch’s opinion steadfastly sought to follow the Supreme Court’s 1982 precedent of Board of Education v. Rowley, citing it some twenty times. Here’s one excerpt (some citations and footnotes omitted):

How do we know when a school district has or has not provided a disabled student with a FAPE? To be sure, the term is hardly self-defining. Fortunately, however, the statute and Supreme Court afford some additional direction, indicating that we must ask, more specifically, whether Luke’s December 2003 IEP [“individualized education program”] was “reasonably calculated to enable [him] to receive educational benefits,” Bd. of Educ. v. Rowley, 456 U.S. 176, 207 (1982). If the IEP was so calculated, the school district can be said to have provided a FAPE; if not, then not.

The Supreme Court has further explained that this standard is not an onerous one. “Congress did not impose upon the States any greater substantive educational standard than would be necessary to make … access meaningful․ [T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. So, for example, the Court found no support in the text or history of the Act for the proposition that Congress sought to guarantee educational services sufficient to “maximize each child’s potential.” Id. at 198. Instead, we are told, Congress sought only to require a “‘basic floor of opportunity,’” id. at 200, aimed at providing individualized services sufficient to provide every eligible child with “some educational benefit,” id. (emphasis added). We are also reminded that the “primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Id. at 207. From this direction, we have concluded that the educational benefit mandated by IDEA must merely be “more than de minimis.”

As Center notes, the question of what counts as a “free and appropriate public education” is pending before the Supreme Court, and it is certainly possible that the Court will revisit what Rowley means. But when Center complains about the allegedly “narrow and outdated standard used by Judge Gorsuch,” she obscures the critical point that Gorsuch (and Briscoe) reasonably drew that standard from the Supreme Court’s decision in Rowley.

My limited point here is not to argue that Gorsuch’s opinion was clearly correct. (That would take a lot more work, both for me and for you.) Rather, it is to highlight that an opinion that strives to hew to longstanding Supreme Court precedent and that is joined by a liberal Clinton appointee is a remarkably weak reed on which to base a claim that Gorsuch’s record on disability cases is “troubling.” (Nancy Pelosi has also tried to use this case against Gorsuch; David Freddoso has critiqued her folly.) 

Thank You, Vice President Pence

by Ed Whelan

At Congress Hall in Philadelphia last Saturday, Vice President Mike Pence delivered a powerful speech (full C-Span video here) in support of Supreme Court nominee Neil Gorsuch. In his speech, Pence kindly cited and quoted me:

Two American Constitution Society Leaders Support Gorsuch

by Ed Whelan

From 1995 to 2005, Supreme Court nominee Neil Gorsuch practiced law at the elite D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Here’s a powerful letter from dozens of his former law partners, “Democrats, independents, and Republicans” who “represent a broad spectrum of views on politics [and] judicial philosophy” but who “all agree on one thing”: Neil Gorsuch “is superbly qualified” for the Supreme Court and “is a man of character, decency, and accomplishment.”

Notable among the letter’s signatories are two individuals who are part of the “leadership” of  the American Constitution Society (the left-wing counterpart to the Federalist Society)​: David Frederick, a member of ACS’s board of directors, and Geoffrey Klineberg, a former Blackmun clerk who is on ACS’s board of advisors (and was formerly on its board of directors).

Some further excerpts from the letter:

Throughout his time with us, Neil demonstrated both a powerful intellect and a sterling character. In every aspect of his private practice, Neil excelled. He was a skilled and creative trial lawyer, a legal draftsman of concision and wit, and above all else a wonderful colleague who devoted himself fully to the best interests of our clients and was a pleasure to work with.

We saw Neil in times of professional triumph as well as in times of disappointment. Through highs and lows he was steadfast: courteous, collegial with co-counsel and adversaries, respectful of courts and the rule of law itself. He was as considerate and respectful of the night guard at our trial office in Paducah, Kentucky, as he was of captains of industry. He never displayed bias or hostility against anyone, and earned friends and admirers wherever he went.

Neil’s equal regard for everyone extended to his work as a litigator. He zealously represented all of his clients – plaintiffs and defendants, individuals and corporations, nonprofits and small businesses, paying clients and pro bono clients – without regard to ideology. For Neil, each client deserved the best arguments that could be mustered, consistent with the facts and the law.…

Neil is not only a good and humble man, he is also an outstanding jurist. We are fully confident that he will decide cases on principled grounds; that he will work tirelessly to get each case right, on its particular merits; that he will be thoughtful about the views of his colleagues, and will deliberate respectfully and productively to reach consensus where that is possible; and that he will demonstrate the integrity and ability that we all saw in our years as his colleagues.

Filibuster, Please!

by Ed Whelan

I’ve gathered here, for easy reading, a series of tweets from this morning that explain why I’d love to see Senate Democrats filibuster the Gorsuch nomination. 

This Day in Liberal Judicial Activism—February 6

by Ed Whelan

1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

‘So-Called Judge’

by Ed Whelan

Some thoughts on President Trump’s tweet referring to Judge James Robart as a “so-called judge”:

1. It’s one thing to criticize a judge’s ruling or reasoning and to argue that the judge is abusing the authority of his judicial office. That’s entirely fair game, though something that a president generally ought to leave to others. It’s quite another thing to suggest that a judge doesn’t possess the legitimate authority of the office. Trump’s tweet may plausibly be read as doing the latter, even if his own less than meticulous wordsmithing might invite the more charitable assumption that he meant only to be criticizing Robart’s ruling (a ruling that is embarrassingly devoid of legal reasoning on the essential points). 

Insofar as the Administration actually wants to get the higher courts to reverse Robart’s TRO, Trump’s tweet is also counterproductive. It’s best to get the courts to focus on the legal arguments, not on some larger contest of will between the White House and the judicial branch.

2. Those who refuse to acknowledge Trump as the country’s legitimate president undermine their basis for criticizing his apparent challenge to Robart’s legitimacy as a judge. You can’t have it both ways. Each holds his office pursuant to the Constitution. It’s fine to criticize Trump for his policies and actions, just as it’s fine to criticize Robart for his rulings. But it’s wrong and dangerous to be questioning the legitimacy of either.

3. As Senator Jeff Merkley’s embarrassing tirade illustrates, many Senate Democrats are engaged in a campaign of  irresponsible and incendiary rhetoric (“theft,” “crime against the Constitution,” “stolen seat”) that, whatever their intentions, threatens to delegitimize the Supreme Court in general and future Justice Gorsuch in particular. Indeed, Merkley has already referred to Gorsuch as “an illegitimate and extreme nominee.” And prominent lefty law professor Geof Stone has gone even further, arguing in Time:

Judge Gorsuch’s nomination should be withdrawn, and the President should nominate in his place a genuinely moderate justice who is acceptable to Democrats and Republicans alike. Only then can we move on with a sense of institutional integrity. Short of that, every decision of the Court decided by a margin of five-to-four with Neil Gorsuch in the majority will justifiably be castigated as fundamentally illegitimate. [Emphasis added.]

It’s possible, to be sure, to argue (wrongly, as my point 1 here explains) that the Scalia vacancy is a “stolen seat” but to acknowledge that Gorsuch, once appointed, will be a fully legitimate justice. But that certainly doesn’t seem to be where Democrats are heading. Their rhetoric is poisonous stuff—much worse that Trump’s bad tweet—and it’s time for them to put an end to it.

This Day in Liberal Judicial Activism—February 5

by Ed Whelan

1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges. 

This Day in Liberal Judicial Activism—February 4

by Ed Whelan

2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as the union of a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, will reverse this ruling.

 

2016—A divided Ninth Circuit panel rules, in Smith v. Schriro, that Robert Douglas Smith was intellectually disabled when he committed acts of kidnapping, sexual assault, and murder in 1980. In the opening paragraph of her dissent from Judge Stephen Reinhardt’s lead opinion, Judge Consuelo Callahan observes (emphasis added):

 

“The one thing everyone appears to agree on is that Smith is not intellectually disabled. When tested in 2005 the experts found that he had an IQ of between 87 and 93, well within the low-average to average range of intellectual ability. Yet despite this fact, the majority reverses because it is certain that Smith was intellectually disabled in 1980 when he murdered Sandy Owen. The majority reaches this conclusion by disregarding the findings of the state courts, denying those courts the deference they are due, and expressing supreme confidence in its own ability to detect past intellectual disability despite substantial conflicting evidence and the fact that Smith is not now intellectually disabled. Accordingly, I dissent.”

Senator Jeff Merkley, D-Cuckooland—Part 2

by Ed Whelan

Continuing with Oregon senator Jeff Merkley’s New York Times op-ed urging a filibuster of the Gorsuch nomination (and numbering serially from my Part 1 post):

3. Merkley, a non-lawyer, obviously knows zilch about Judge Gorsuch. All that he can muster about Judge Gorsuch is the silly claim that Gorsuch is “an extreme right-wing jurist who has ruled dozens of times for the powerful and against the less fortunate.”

Yes, that’s the same Gorsuch whom (to cite just one of countless sources of praise) liberal Neal Katyal, acting solicitor general in the Obama administration, has hailed (also in the pages of the New York Times) as “an extraordinary judge” who “brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court”; as “someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws”; as having a record that “reveal[s] a commitment to judicial independence [and] that should give the American people confidence that he will not compromise principle to favor the president who appointed him.” Yeah, that’s some “extreme right-wing jurist.”

As for Merkley’s claim that Gorsuch “has ruled dozens of times for the powerful and against the less fortunate”: As a statistical matter, I’m sure that’s true. Gorsuch, after all, has written opinions in some 900 cases or so, and thus has probably participated in nearly 3,000. It would be amazing if he hadn’t “ruled dozens of times” for and against various classes of parties. The same is surely true of Merrick Garland and of anyone else who has been on the bench for any significant period of time.

But note what’s conspicuously missing from Merkley’s claim: Any charge that Gorsuch wrongly ruled in such cases. A Supreme Court justice takes an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.” Complying with that oath means ruling for the powerful when they are in the legal right and against them when they are not. Katyal expresses his confidence that Gorsuch “will live up to that promise.” Merkley seems not even to understand what the promise entails.

4. Merkley warns that “lowering the required vote threshold [i.e., abolishing the filibuster] will not be such an easy decision for the Republicans, because the day will come when Democrats will control both the White House and the Senate” and Republicans will then “wish the nuclear option had not been invoked.”

This argument is wrong for two reasons. First, as Senate Democrats made clear before the election, when they regain the majority, they will abolish the Supreme Court filibuster whenever they need to do so to get a Democratic nominee confirmed. Second, there’s very little difference between the sort of Democratic nominee that Republicans would filibuster and the sort they let go through. The filibuster is a much more powerful tool for Democrats against Republican appointees.

5. Oddly, after devoting almost entirely his whole op-ed to explaining that he categorically opposes the Gorsuch nomination as retribution for Republicans’ treatment of Garland, Merkley asserts in his closing paragraph that “Categorical opposition to this nomination is not retribution for the treatment of Judge Garland.” Perhaps you need to think things through a little more carefully, Senator Merkley.

6. On top of all his other screeching rhetoric, Merkley works in the Koch brothers. He claims that “the motivation” for Senate Republicans to work to keep the Supreme Court vacancy open was their desire to keep the Koch brothers’ “dark money” flowing to Senate Republicans.

Yeah, right. There were lots of reasons that converged to drive Senate Republicans to keep the vacancy open, and they related predominantly to the damage that a liberal Supreme Court majority would do to the Constitution and to various precedents (among them, to be sure, Citizens United, but only as one among many.)

Senator Jeff Merkley, D-Cuckooland—Part 1

by Ed Whelan

In an op-ed in today’s New York Times, Oregon senator Jeff Merkley urges his fellow Senate Democrats to filibuster the Supreme Court nomination of Judge Neil Gorsuch and (as the title of his print piece puts it) “make the Republicans go nuclear.”

I hope very much that Democrats follow Merkley’s foolish advice, for a filibuster of the Gorsuch nomination is the best possible set-up for Senate Republicans to abolish the filibuster. Abolition of the filibuster would pave an easy confirmation path for President Trump’s next nominees to the Supreme Court. And the prospect of that easy path would in turn encourage the White House to make bolder picks than it might otherwise do.

Let’s march through Merkley’s argument:

1. Merkley’s major claim is that “Senate Republicans are in the midst of pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court.” Merkley repeats the “theft” charge two more times and uses “crime” three times and “steal” twice.

Merkley’s incendiary rhetoric is as irresponsible as it is idiotic. This Wall Street Journal house editorial yesterday, “The Myth of the Stolen Supreme Court Seat,” nicely answers Merkley. But let me highlight a few points.

a. When President Obama’s nomination of Merrick Garland was pending, Merkley claimed that “the Constitution requires” Senate Republicans “to hold hearings and a vote on his nomination.” It appears from his screed (“crime against our Constitution”) that he continues to hold that position.

Merkley’s constitutional claim is (to borrow from law professor Erwin Chemerinsky’s vocabulary) “silly” and “obviously fatuous.”

The Appointments Clause (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything. (It’s entirely through the operation of the Senate’s plenary rulemaking power that the Senate has committees at all and empowers those committees to hold hearings.)

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So anyone who contends that the Constitution somehow required “hearings and a vote on [the Garland] nomination” has zero basis in text and is arguing against longstanding practice. That practice of defeating nominees by inaction includes what Democrats did to lots of President George W. Bush’s judicial nominees in 2007 and 2008, after they regained control of the Senate.

b. Even if Merkley tried to retreat to a more modest claim that Republicans acted contrary to accepted norms, that claim would fail. The non-existence of any such norm is shown by Joe Biden’s carefully prepared Senate floor statement way back in 1992 when he charted exactly the course that Senate Republicans followed and by Chuck Schumer’s similar threat in mid-2007, well in advance of the election year. (The fact that no vacancy arose in either instance is irrelevant to the proposition that the statements show that no such norm existed.)

Further, President Obama’s former White House counsel has candidly acknowledged that, if the situation were reversed, she would have recommended to Senate Democrats the same course of action that Senate Republicans took. Political rhetoric aside, I can’t imagine that anyone who knows the process really thinks that Democrats would have acted differently. If Merkley had an ounce of capacity for self-reflection, he would recognize that he would have been a fervent cheerleader for that course.

2. What’s all the more amazing is the utter incoherence of Merkley’s call for a filibuster of the Gorsuch nomination.

Senator Merkley, if you genuinely (if very stupidly) believe that the Constitution required Senate Republicans to have a final vote on the Garland nomination, how can you in good conscience propose a filibuster designed to prevent a final vote on the Gorsuch nomination? You either spout constitutional claims that you don’t believe, or you propose to act in violation of what you understand to be your oath to the Constitution.

More in Part 2.

This Day in Liberal Judicial Activism—February 3

by Ed Whelan

1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power. While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous—and are often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

 

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” So begins Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015), inventing a constitutional right to same-sex marriage. Quoting this passage, Justice Scalia laments that the Supreme Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” 


“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of not-random-after-all selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. He will instead end up writing the majority opinion in support of (and providing the decisive vote for) a divided-panel holding affirming Walker’s ruling.

American Bridge: Too Stupid for Words—Part 2

by Ed Whelan

A follow-up to my post from yesterday.

Skimming through the back half of American Bridge 21st Century’s incompetent attack on Supreme Court nominee Neil Gorsuch, I’ll highlight a few more blatant distortions and bloopers that signal the dismal quality of the work product. (I also note with amusement that American Bridge repeats on page 56 the same gaffes from pages 10 and 14 that I discussed yesterday.)

1. Under the heading “Concussions” (p. 66), American Bridge writes:

Neil Gorsuch Affirmed The $1 Billion NFL Concussion Settlement. According to Star-News, “Last year, he joined two 3rd Circuit colleagues in affirming the $1 billion settlement of NFL concussion claims, rejecting complaints that men with depression and mood disorders were left out of the deal.” [Star-News, 1/25/17]

Oops. Really bad copy-and-paste job, guys. The opinion that American Bridge is discussing is one that Third Circuit judge Thomas Hardiman joined. (Here’s the news article it refers to.) Gorsuch had nothing to do with it. That reference to “two 3rd Circuit colleagues” might have clued you in. Speaking of concussions ….

2. In a heading (p. 58), American Bridge asserts (in bold):

Gorsuch Ruled that A Man Who Shot Two People But Only Fired His Gun Once Could Be Tried For Two Counts Of Using A Firearm To Commit A Violent Crime.

I’m not entirely clear why American Bridge, given its antipathy to gun ownership, would object to such a ruling. Indeed, the initial Tenth Circuit panel opinion, authored by Obama appointee Scott Matheson, reached just that result.

But if American Bridge could read and understand the newspaper article it quotes, it would discover that its account of Gorsuch’s en banc majority opinion in United States v. Rentz is entirely backwards. Gorsuch—joined by, among others, Clinton appointee Carlos Lucero and Obama appointees Robert Bacharach and Nancy Moritz—“ruled that the second charge should have been dismissed” because the statute was unclear and the rule of lenity operated to the benefit of the defendant.

3. American Bridge spends a full page (pp. 56-57; see also p. 10) castigating Gorsuch for Hawker v. Sandy City Corp., which held that a police officer did not use excessive force in violation of the Fourth Amendment when he used a twist lock to constrain a combative nine-year-old. In a heading, American Bridge attributes to a “Gorsuch Opinion” the proposition that “‘the disrespectful, obdurate, and combative behavior of that nine-year-old child’ was ‘equally regrettable’ to the officer’s actions.”

But what only the careful reader will discern is that Gorsuch didn’t write any opinion in the case and that Clinton appointee Carlos F. Lucero concurred in the panel’s disposition (even as he wrote separately to express his disagreement with circuit precedent). American Bridge’s strange clipping of the passage from Judge Terrence O’Brien’s opinion (which Gorsuch joined) seems designed to obscure that O’Brien forthrightly stated, “It is regrettable that a police officer feels a need to resort to physical force, handcuffs, and arrest in order to gain control of and reason with a nine-year-old child.”

***

The one conclusion that you can fairly draw from the American Bridge report is that if David Brock’s gullible donors were paying for serious research, they’ve been ripped off. 

Phony 60-Vote Standard

by Ed Whelan

Various Democrats are trying to use weasely language about a supposed 60-vote standard for Supreme Court nominees in order to try to sound tough to some of their constituents. At the same time, in order to try to appear reasonable to other constituents, they state their support for a floor vote on the Gorsuch nomination.

Well, you can’t have it both ways.

As the Washington Post’s Glenn Kessler explains, there is not, and there never has been, a 60-vote standard for Supreme Court nominees.

To be sure, if Democrats want to take the extraordinary step of trying to filibuster the Gorsuch nomination, 60 votes would be needed for cloture in order to proceed to a floor vote on the nomination. But Democrats who want to go this route should be explicitly talking filibuster, not using the “slippery language” that Kessler properly criticizes.

And, of course, if a filibuster were to prevent cloture, Senate Republicans, following the path that Democrats paved in 2013 and promised to follow in the event of a Republican filibuster of a Hillary Clinton nominee to the Supreme Court, would be able to use their simple majority power to abolish the filibuster for Supreme Court nominees.