Sunday, March 26, 2017

Gorsuch Unharmed, but His Silence 'Speaks Volumes'

      Supreme Court nominee Neil Gorsuch must have had the Hippocratic oath firmly in mind as he underwent more than 20 hours of questioning from senators during his confirmation hearing last week. "First, do no harm," the ancient Greek physician Hippocrates prescribed for medical practitioners.
      Given the Republicans' 52-48 majority in the Senate, Gorsuch had a partly clear path to confirmation, but he faced and largely avoided two risks. He needed to avoid giving the chamber's Democratic minority evidence of out-of-the-mainstream legal views to justify a filibuster. He needed to make it hard for red-state Democrats to support any vote-blocking parliamentary tactic or for blue-state Republicans to break party ranks in deference to their moderate suburban constituents.
      Democrats tried but succeeded no more than part way to use Gorsuch's record in 10 years on the federal appeals court in Denver to prove him to be a doctrinaire conservative and indifferent to interests of workers or consumers, reproductive freedom, or LGBT rights. It can never be known whether they would have done better by focusing more on questions than on speeches with their allotted time, but the National Law Journal end-of-hearing headline said it all: Gorsuch emerged "unscathed."
      Gorsuch ducked the Democrats' questions by sticking with a mantra that he was a judge, not a legislator, committed to ruling in every case on the basis of law and facts, not personal opinion. He promised to faithfully follow precedent  except when "the law of precedent" allows departures or reconsideration. And he skillfully used the power of precedent as a shield against questions about his own legal views .
      Gorsuch demurred when asked whether her considers himself an "originalist," as he was described by any number of Republican senators and some of his supporters who appeared later on the fourth and final day of the hearings. The term "has different meanings" for different people, Gorsuch said in begging off. The Democrats tried but failed to get Gorsuch to admit that originalism is guesswork at best and prevents the adaptation of the Constitution to meet present-day legal issues.
      On a different tack, Democrats tried to get Gorsuch to give his personal evaluation of Supreme Court precedents, but he refused except for one. The landmark school desegregation decision in Brown v. Board of Education was "a shining moment" in Supreme Court history, Gorsuch said. But on other decisions Gorsuch said that giving his own opinion would be "an act of hubris" and would carry no weight in any event.
      The abortion-rights decision in Roe v. Wade was among the precedents Gorsuch promised to follow but declined to endorse. Gorsuch and several Republican senators justified the nominee's reticence by citing what they called the Ginsburg rule, drawn from Justice Ruth Bader Ginsburg's confirmation in 1993. Ginsburg had promised "no hints, no forecasts, no previews." Unlike Gorsuch, however, Ginsburg in 1993 had not hesitated to embrace Roe v. Wade as protecting a right "central to a woman's life."
      Democrats voiced their frustration with Gorsuch's reticence. "I don't buy that," Illinois' Richard Durbin chided the nominee at one point. Later, Connecticut's Richard Blumenthal told Gorsuch, "Your silence speaks volume."
      Blumenthal pressed Gorsuch especially hard to try to find out what he knew about the $10 million campaign being waged in support of his confirmation. Gorsuch insisted he did not know who was paying for the TV ads being broadcast mostly in states with Democratic senators. Gorsuch told Blumenthal that Congress could decide whether to require more disclosure of donors in such campaigns and insisted that Congress had "ample authority" to legislate in the area. But he acknowledged only under questioning that he had suggested, in an opinion striking down an unusual Colorado law, that limits on campaign contributions should be subject to stricter constitutional scrutiny than current Supreme Court precedents require.
      On LGBT rights, Gorsuch appeared to accept the marriage equality ruling in Obergefell as precedent and generally to acknowledge that gays and lesbians are encompassed within the Fourteenth Amendment's Equal Protection Clause. But, perhaps because of imprecision in the questioning, Gorsuch never addressed whether he would find sexual orientation and gender identity to be a protected characteristic for equal protection purposes or whether religious beliefs could be invoked to justify discrimination against LGBT individuals.
      On the latter issue, the testimony from opposing advocates indicated they think they know Gorsuch's mind. Hannah Smith, a senior counsel with the religious-liberty litigating Becket Fund, praised Gorsuch's support on those issues, while Sarah Warbelow of the Human Rights Campaign said that Gorsuch's record indicated "a level of indifference to the LGBT community."
      By the end of the hearing, South Carolina Republican Lindsey Graham had lost whatever patience he had allowed the Democrats. The prospect loomed that Democrats would stick together in preventing the 60-vote majority needed under current Senate rules to bring the nomination to a vote on the floor. Graham, who underlined his own votes in favor of confirming the Obama-nominated justices Sonia Sotomayor and Elena Kagan, said that it was unclear that Democrats would back any Republican nominee for the court.
      Democrat Durbin was right in saying at the outset that any Republican complaints about partisanship "ring hollow" after the refusal last year to consider Obama's nominee for the seat, Merrick Garland. Gorsuch strived to keep himself out of the partisan bickering, disclaiming the labeling of "Republican judges" and "Democratic judges." But the partisan lines remain sharply drawn as the committee moves toward the vote to send the nomination to the floor.

Friday, March 24, 2017

Clashing Views of Gorsuch as Hearings End

      The Senate Judiciary Committee ended its confirmation hearing on Supreme Court nominee Neil Gorsuch on Thursday [March 23] after hearing glowing testimonials from the judge's colleagues, ex-clerks, and conservative interest groups but continuing doubts from liberal groups about his commitment to along with rights-favoring legal precedents.
      The committee's six-hour day began with leaders of the American Bar Association's Standing Committee on the Federal Judiciary detailing the committee's  rating of the veteran federal appeals court judge as "well qualified" for elevation to the high court. The 15-member, nonpartisan committee has rated nominees for the federal bench since 1953 and gave the "well qualified" ratings to seven of the current justices and the middling rating of "qualified" to Clarence Thomas when he was nominated in 1991.
      Nancy Scott Degan, a New Orleans lawyer and the ABA committee's chairwoman, said Gorsuch was found well qualified based on an assessment of his integrity, professional competence, judicial temperament, and judicial independence. The Senate committee's chairman, Iowa Republican Chuck Grassley, briefly endorsed the ABA panel's conclusions.
      California's Dianne Feinstein, the committee's ranking Democrat, used the ABA witnesses' appearance to underscore that the lawyers' group had given the same "well qualified" rating to Judge Merrick Garland, President Obama's blocked nominee for the seat. Degan ducked Feinstein's question whether the committee found Gorsuch to be a "mainstream" judge, but when Feinstein asked whether Gorsuch was reasonable, Degan had a one-word reply: "Absolutely."
     The final day of the hearings was barely under way when the Senate's Democratic leader, Chuck Schumer, went to the Senate floor to declare his opposition to Gorsuch's confirmation and vow to filibuster the nomination to prevent a vote. "Judge Gorsuch's nomination will face a cloture vote," Schumer said in a simultaneously posted tweet, "and as I've said, he will have to earn sixty votes for confirmation. My vote will be 'No.'"
      Two of Gorsuch's colleagues on the Tenth U.S. Circuit Court of Appeals — one appointed by the Republican president Ronald Reagan, the other by Democrat Bill Clinton — followed with similarly effusive praise for Gorsuch's qualifications. The Reagan-appointed judge Darrell Reese Tacha, now a former dean at Pepperdine Law School, called Gorsuch "an elegant and exceptional writer" with a commitment to "originalism and textualism and precedent but not in a formalistic way." Robert Henry, the Clinton appointee and now president of Oklahoma City University, followed by praising Gorsuch for a "truly remarkable intellect," "his demonstrated mastery of rules and precedent," and "his fine judicial temperament."
      Two witnesses invited by the comminttee's Democratic minority questioned Gorsuch's role while serving in the Bush administration Justice Department in 2005 and 2006  in the sharp legal and political debate over the post-9/11 treatment and interrogation of suspected enemy combatants. Elisa Massimino, president of Human Rights First, noted that Gorsuch was "directly involved" in defending Bush administration claims that the president could authorize torture-like interrogation techniques despite torture bans in U.S. law and international treaties. Jameel Jaffer, a former American Civil Liberties Union lawyer now executive director of the Knight First Amendment Institute at Columbia University, urged the committee to postpone action on the nomination pending further exploration of Gorsuch's role in the controversy.
      At Democrats' urging, the committee received what Feinstein described as 150,000 pages of materials from the Justice Department on Gorsuch's work at the department. In their appearance, the ABA witnesses said their group had had no time to analyze the material. In his earlier appearance, Gorsuch had minimized his personal involvement in the controversy by saying that he acted as "a lawyer with a client." But Feinstein briefly remarked that government lawyers should be held to a higher standard for legal positions they take.
      Interest group representatives followed with points corresponding to the one or the other party that had lined them up. Karen Hamed, executive vice president of the National Federation of Independent Business, praised Gorsuch's call to reconsider the so-called Chevron doctrine of deferring to administrative agencies' regulations. She criticized "the rising tide of regulations promulgated by unelected officials."
      Hannah Smith, senior counsel with the Becket Fund, a religious-liberty advocacy group, praised Gorsuch for what she called "a commitment to protecting this vital freedom." She underscored Gorsuch's votes in the so-called Hobby Lobby and Little Sisters for the Poor cases to allow religiously-motivated exceptions to providing coverage for contraceptives in health insurance for employees or students.
      From the other side, a labor union representative rehearsed one more time Gorsuch's dissent in the so-called frozen trucker case: the stranded trucker fired for leaving his trailer on the roadside to find warm shelter in subzero weather. Guerino Calemine, general counsel of the Communication Workers of America, said that Gorsuch's interpretation of the federal law at issue "would have made life a little more dangerous for truck drivers."
      Other Democratic-invited witnesses faulted Gorsuch for tentative answers on reproductive rights, LGBT rights, and race-related civil rights issues. "We need judges who will oppose unnecessary restrictions on abortion rights," said Amy Hargstrom Miller, executive director of the clinic in the Supreme Court's decision last year to strike down a restrictive Texas law. Sarah Warbelow, senior litigation director for the Human Rights Campaign, criticized Gorsuch for what she called "a level of indifference to the LGBT community."
      Among other Democratic witnesses, the Sierra Club's Pat Gallagher warned that Gorsuch's stance on the Chevron doctrine threatened regulatory protections for the environment. Heather McGhee, president of the political reform group Demos, said that Gorsuch could provide a "deciding vote" in favor of continuing the Roberts Court's trend of striking down laws regulating money in politics.
      Grassley gaveled the hearings to a close after admonishing committee members to submit any written questions by Friday [March 24]. Grassley wants the committee to vote on the nomination on Monday [March 27], but Democrats are likely to exercise their right to call for laying the vote over for one week.

Thursday, March 23, 2017

Republicans Confident as Gorsuch Testimony Ends

      Supreme Court nominee Neil Gorsuch ended two long days of testimony before the Senate Judiciary Committee with Republicans confident of his confirmation and Democrats frustrated with his elusiveness at the witness table.
      Committee chairman Chuck Grassley gaveled the 10-hour session to a close shortly before 8 o'clock Wednesday evening [March 22] with lavish praise for the veteran federal appeals court judge for his "patience" and "thoughtfulness in all that you do." The Iowa Republican ended by saying that Gorsuch had "pretty well demonstrated how you're going to handle things when you get to the Supreme Court of the United States."
      For their part, the committee's outnumbered Democrats made no similar predictions of blocking or even slowing the nomination despite the call from the Democratic leader Chuck Schumer of New York to block any vote pending the investigation into Russian interference in the presidential election.
      The committee's nine Democrats came up mostly short after a second full day of using a handful of Gorsuch opinions from the Tenth U.S. Circuit Court of Appeals to depict him as a threat to civil and constitutional rights and a champion of corporate interests over workers and consumers. And they also failed to pin him down on how he might vote on a range of legal issues ranging from conservative causes such as gun rights and campaign finance to liberal agenda items such as abortion rights, gay rights, and voting rights.
      Even so, the Democrats got an unexpected assist from across the street early in Gorsuch's second day of testimony in the Senate's Hart Office Building. Shortly after 10 o'clock, Chief Justice John G. Roberts Jr. announced a unanimous high court decision rejecting a Tenth Circuit test crafted by Gorsuch on educational standards under federal law for students with disabilities.
      The ruling in Endrew F. v. Douglas County School District came in a case that had applied a test from Gorsuch's opinion in an earlier case on how to apply the federal Individuals With Educational Disabilities Act (IDEA). Under Gorsuch's standard, local school districts could satisfy the law by offering students who cannot be taught in mainstream classrooms "an educational benefit [that is] merely . . . . more than de minimis." In a relatively short opinion, Roberts said the goal was too low and instead students were entitled to "a program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."
      Asked about the decision by Illinois Democrat Richard Durbin, Gorsuch said he was handed the decision during a bathroom break in the hearing. Durbin said that the National Education Association had found that Gorsuch had ruled against students in eight of 10 cases under the federal law. But Gorsuch defended his opinion in the earlier decision, saying that he was bound by precedent.
      Gorsuch ducked Democrats' specific questions by adopting what he and the committee's Republican senators called the "Ginsburg rule," as set out by the future justice Ruth Bader Ginsburg during her 1993 confirmation hearing. "I've tried very hard to abide by the Ginsburg rule," Gorsuch explained at one point. "No hints, no previews, no forecasts."
      Republicans were fully satisfied. "I respect your absolute resistance to giving your feelings about the precedents of the Supreme Court of the United States," Idaho's Mike Crapo said. "You're consistently making clear that you're keeping your personal opinions out of it."
      Earlier, Illinois Democrat Richard Durbin rejected Gorsuch's mantra that he would follow precedent and decide cases on the basis of the facts and the applicable law without regard to his personal opinions. "I don't buy that," Durbin said forcefully. "We're looking for insights into your values and your judgment."
      Minnesota's Al Franken made the Democrats' point even more forcefully as the  hearing neared an end by referencing a series of 5-4 Roberts Court decisions that he said had hurt small businesses, workers, consumers, and — alluding to voter ID laws — Americans who do not have driver's licenses. "I want to know whether you'll consider the real world consequences of your decisions," Franken said.
      Republicans continued to defend Gorsuch's noncommittal stance. "The bottom line is that you cannot give the answers the other side would like," South Carolina's Lindsey Graham said.
      President Trump nominated Gorsuch on Jan. 31 for the seat left vacant by the death of Justice Antonin Scalia a year earlier. The Republican-controlled Senate refused to consider President Obama's nominee for the seat — Merrick Garland, like Gorsuch a highly-credentialed and well-regarded federal appeals court judge. Garland would have given Democratic-appointed justices a majority on the court for the first time since 1969.
      Gorsuch avoided answering a number of questions during his two days at the witness table by depicting the judiciary as nonpolitical. "You said there are no Republican judges and no Democratic judges," Franken said mockingly. "But if that were true, what was Merrick Garland about?"
      Graham answered by insisting that had the tables been reversed, a Democratic-controlled Senate would have refused to consider a Supreme Court nominee from a Republican president in his final year in office. As evidence, Graham cited an oft-quoted comment to similar effect that then-Sen. Joe Biden made in 1992 as he chaired the Judiciary Committee during the fourth year of President George H.W. Bush's term.
      The hearing resumes at 9:30 a.m. on Thursday with some 28 outside witnesses scheduled to testify. A first panel will consist of members of the American Bar Association's standing committee on the federal judiciary, which gave Gorsuch its highest rating of "well qualified." Three subsequent panels will be equally balanced between supporters and opponents of Gorsuch's confirmation chosen by the Republican and Democratic sides.
      Grassley says he wants to bring the nomination to a committee vote on Monday [March 27], but he acknowledges that Democrats have the right to request a one-week delay.  Republicans want to complete the confirmation in time for Gorsuch to join the Supreme Court for a two-week calendar of arguments that begins April 17.

Wednesday, March 22, 2017

Gorsuch Unfazed as Democrats Probe Record, Views

      Supreme Court nominee Neil Gorsuch moved toward Senate confirmation Tuesday [March 21] by repeating pledges of impartiality and independence and fending off Democrats' efforts to pin him down on legal issues or prove disqualifying ideological bias in his judicial record.
      Gorsuch ably fielded questions from politically divided committee members for 10 full hours on Tuesday, hitting Republicans' softball questions for easy singles and fouling off Democrats' curve balls. Republicans repeatedly thanked a judge they openly described as conservative for his "patience" and "perseverance," while Democrats came up empty in trying to paint Gorsuch as a threat to abortion rights or a tool of corporate interests over workers' rights.
      Gorsuch countered one line of Democrats' questions by using what he called an opening question from the Republican committee chairman Chuck Grassley to pledge independence from President Trump if confirmed. "That's a softball," Gorsuch replied amiably to Grassley's request that he describe judicial independence. "I have no difficulty ruling against or for any party," Gorsuch continued, "other than based on what the law and the facts and the particular case require."
      Later, Gorsuch answered Democrats' questions about Trump's critical tweets with a generally phrased rebuke of attacks on judges' independence. "When anyone criticized the honesty or integrity or the motives of a federal judge, I find that disheartening," Gorsuch replied to Vermont Democrat Patrick Leahy. "I find that demoralizing."
      Gorsuch also rejected Democrats' efforts to link him to Trump's campaign season pledges to appoint "pro-life" judge who would overrule the landmark abortion-rights decision in Roe v. Wade "automatically." Gorsuch said that Trump had mentioned abortion as a divisive political issue in their pre-nomination Trump Tower interview but that Trump had not asked him how he would vote on abortion cases.
      Gorsuch acknowledged that he had heard campaign-season discussion of  Trump's "litmus tests" for filling the Supreme Court seat now left vacant for more than a year after Justice Antonin Scalia's death in February 2016. But he flashed his professed independence for all to see when South Carolina Republican Lindsey Graham asked how he would have responded if Trump had asked him for a commitment to vote to overturn Roe. "I would have walked out the door," Gorsuch declared.
       “I have offered no promises on how I’d rule in any case to anyone,” Gorsuch told Grassley earlier, “and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking.”
      Gorsuch avoided Democrats' efforts to pin him down on political issues, including the Senate Republicans' decision last year to refuse a hearing to President Obama's nominee for the vacancy, the veteran federal appeals court judge Merrick Garland. Gorsuch called Garland "a fine man," but he demurred when Leahy asked whether Garland had been treated fairly. "I can't get involved in politics," Gorsuch said. "It would be very imprudent for me to comment on a political dispute."
      One by one, Gorsuch skirted Democrats' other efforts to ferret out his views on pending issues, including the litigation that so far has blocked Trump's executive order restricting immigration from seven or six majority-Muslim countries. Asked whether the government could impose a religious test for entry into the United States, Gorsuch hesitated before offering a generally phrased response.
      "That looks an awful lot like a pending case," he said, but then added. "We have a Constitution and it does guarantee free exercise and it also guarantees equal protection of the law."
      Gorsuch skirted questions about controversial Supreme Court decisions with a stock answer describing each one as "a precedent" entitled to the respect normally accorded prior high court decisions. He declined to answer a question from California Democrat Dianne Feinstein, the party's ranking member, on whether the gun-rights decision in Heller v. District of Columbia would allow states to ban military-style assault weapons.
      Leahy had no better luck when he pressed Gorsuch about the court's decision in Shelby County v. Holder to strike down a major part of the federal Voting Rights Act. As with other decisions, Gorsuch volunteered no personal view about what he called the "recent" precedent. "What its reach will be remains to be seen," he concluded.
      Outside judicial decisions, Feinstein sought to plumb Gorsuch's role in controversial issues while working on detainee interrogation and treatment policy during his year-long stint at the Justice Department under President George W. Bush. Feinstein, longtime member of the Senate Intelligence Committee, questioned Gorsuch's handwritten affirmation that the so-called enhanced interrogation techniques had produced actionable intelligence.
      Gorsuch mostly neutralized the questioning by citing his role in helping to produce a bipartisan bill, the Detainee Treatment Act, that barred some of the practices. He acknowledged, however, that he had helped draft a provision barring habeas corpus review for inmates at the Guantanamo prison camps that the Supreme Court later struck down.
      Rhode Island Democrat Sheldon Whitehouse also failed to pierce Gorsuch's shield with questions about the reported $10 million campaign being waged by conservative groups in support of his nomination. With Whitehouse calling the funds "dark money," Gorsuch said that he did not know who was funding the campaign. "If you wish to have more disclosure, pass a law," Gorsuch said.
      Gorsuch's day on the witness stand ended well past the dinner hour after 30-minute rounds of questions from each of the 20 senators: 11 Republicans and nine Democrats. He faces a shorter day on Wednesday, with senators allowed 20-minute rounds. The committee moves on Thursday to public witnesses, with 28 witnesses in all scheduled to appear —  half of them selected by Republicans and half by Democrats.


Tuesday, March 21, 2017

Gorsuch Praises Consensus as Senators Clash

      Supreme Court nominee Neil Gorsuch presented himself to a sharply divided Senate Judiciary Committee on Monday [March 20] as a consensus-minded judge, devoted to the law, free of partisan or ideological bias, and steeped in family, faith, and the common-sense goodness of his native Colorado.
      Gorsuch broke from his unassuming pose long enough to boast that out of 2,700 appeals in which he has participated in his decade as a federal judge, 97 percent were decided unanimously and he was in the majority 99 percent of the time.
      "In the West we listen to one another respectfully," Gorsuch said, "we tolerate and cherish different points of view, and we seek consensus whenever we can."
      Gorsuch spoke for about 20 minutes at the end of a five-hour hearing that began with Republican and Democratic senators using their 10-minute opening statements to offer contrasting views about Gorsuch's record on the Tenth U.S. Circuit Court of Appeals.
      Eleven Republican senators, beginning with committee chairman Charles Grassley of Iowa, all praised Gorsuch as eminently qualified and committed to applying the Constitution and laws as written. But nine Democratic senators, one by one, faulted Gorsuch for taking a narrow view of constitutional rights and siding too often with corporations over the interests of workers and consumers.
      Gorsuch sat impassively as the senators laid the groundwork for what could be as much as 16 hours of questioning over the next two days. However embattled the senators, Gorsuch was genial and even folksy as he traced his upbringing and thanked his large extended family in Colorado, "united in love" despite holding "different political and religious views."
      On substance, Gorsuch opened by affirming his commitment to the law. "I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of our great nation," he said.
      Later in the statement, Gorsuch echoed the Republican senators in depicting what he called "the modest station" for judges in the U.S. constitutional system. "If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk," he said.
      The committee's ranking Democrat, California's Dianne Feinstein, used her opening statement to highlight a possible risk to abortion rights if Gorsuch were confirmed. Later, Rhode Island's Sheldon Whitehouse rattled off without naming them a long list of Roberts Court 5-4 decisions on campaign finance, voting rights, civil rights, and class actions all decided by five Republican appointees. "Will you saddle up with the other Republican appointees?" Whitehouse asked rhetorically.
      Gorsuch gave an answer of sorts to the Democrats' complaints by noting that he had decided cases in favor of Native Americans seeking to protect tribal lands and in favor of class actions such as one seeking compensation for victims of nuclear waste pollution. He also said he had ruled for disabled students, prisoners, and workers alleging civil rights violations, while ruling against such persons in other cases.
      "My decisions have never reflected a judgment about the people before me," Gorsuch said, "only my best judgment about the law and facts at issue in each particular case."
      Democratic senators made clear they are smarting from the Republicans' refusal to hold hearings last year to consider the veteran judge Merrick Galand as President Obama's nominee to fill the vacancy left by the death of Justice Antonin Scalia. Vermont's Patrick Leahy, a former committee chairman, the tactic "an extraordinary blockade and totally unprecedented in our history."
      Grassley made no reference to the Garland episode in his remarks, but Texas's junior Republican senator Ted Cruz defended the strategy. "If Obama had been allowed to fill the seat," Cruz said, "we would have had a new liberal activist court."
      Cruz was among several Republicans who praised Gorsuch as an advocate, like Scalia, of originalism in constitutional interpretation. Feinstein had opened by saying that she was "troubled" by the philosophy. "I firmly believe that the Constitution is a living document that was intended to evolve as our people evolved," she said.
      Scalia's seat has been vacant since his death on Feb. 13, 2016, just before the court was set to holds the fourth of its seven two-week calendars of arguments. With only eight justices, the term ended with four cases deadlocked on 4-4 votes and one other sent back to lower courts to resolve after the justices appeared in arguments to be split down the middle.
      With a 52-48 majority, Senate Republicans appear to be in a position to confirm the 49-year-old Gorsuch for the life-tenured seat on the high court. Grassley outlined a schedule that could bring the nomination to a vote in early April in time for Gorsuch to join the court for its final two-week argument session late in the month.
      Over the weekend, however, Connecticut's Democratic senator Richard Blumenthal vowed to use "every tool we have" to block Gorsuch's confirmation "if he is outside the mainstream." No Republicans have indicated any likelihood of breaking ranks on the nomination, but under current rules Republicans need to pick up eight Democratic votes to meet the 60-vote threshold needed to bring the nomination to a vote on the floor.

Monday, March 20, 2017

Gorsuch: Picked for Court by Federalist Society?

      Neil Gorsuch comes before the Senate Judiciary Committee this week as a Supreme Court nominee not so much from Donald Trump as from two influential conservative legal groups: the Heritage Foundation and the conservative-libertarian Federalist Society. Gorsuch came to Trump's attention during the campaign from a list of 21 potential Supreme Court candidates the two legal groups put together  at his request.
      As a candidate, Trump promised that his judicial nominees would "all [be] picked by the Federalist Society." That pledge was unusual and undesirable, according to Christopher Kang, the principal White House adviser on judicial recruitment under President Obama.
      "We certainly reached out to organizations" in looking for judicial candidates, Kang remarked at a Feb. 17 program sponsored by the liberal American Constitution Society (ACS). "But we never went to any organization and said we'll look only at your list."
      "The very idea that [Trump] would outsource the process to two ideological groups," exclaimed Kang, now executive director of an Asian-American advocacy group. "He doesn't see anything wrong with that."
      Gorsuch confirmed the Federalist Society's role in his Senate questionnaire by stating that his initial contact came from the society's longtime executive director, Leonard Leo. As elaborated in a long story by New York Times reporters Eric Lipton and Jeremy W. Peters [March 19],  Leo has played a significant role in judicial nominations by Republican presidents in his nearly 30 years with the society.
      Trump met with Leo shortly after the November election and over the next two months Gorsuch and two other Republican-appointed federal appeals court judges emerged as the leading candidates for the vacancy left by the death of the conservative lion Justice Antonin Scalia. Trump picked Gorsuch after interviewing all three and announced the selection in a prime-time televised ceremony with the 49-year-old Gorsuch and Gorsuch's wife on stage with him.
      In accepting the nomination, Gorsuch stressed the need for courts "to apply, not alter," the laws as enacted by elected representatives. "A judge who likes every outcome he reaches is very likely a bad judge," Gorsuch said, as laughter rippled through the audience, "stretching for results he prefers rather than those the law demands."
      Leo was quick out of the box the next morning to sing Gorsuch's praises on the MSNBC program Mornings With Joe. "What he is doing in many opinions is saying the best way to protect freedom and accountability is to look at the Constitution and to interpret the law as it's written and originally intended," Leo commented. Two days later, Heritage Foundation legal analysts Elizabeth Slattery and Tiffany Bates echoed Leo in a short essay praising Gorsuch for his "demonstrated fidelity to the Constitution."
      In his questionnaire, Gorsuch noted his Federalist Society membership and frequent speeches to society chapters over the years. Gorsuch is still found on the Federalist Society web site as one of its "experts." Gorsuch listed no professional memberships or speaking appearances with liberal legal groups.
      In the seven weeks since his selection, several liberal interest groups have produced reports strongly criticizing Gorsuch's record in his decade on the Tenth U.S. Circuit Court of Appeals and raising questions about his year-long stint in a ranking position at the Justice Department under President George W. Bush. The Heritage Foundation has sponsored two programs stacked with conservative legal experts; Leo has continued to speak out in favor of the nomination. No one from either organization has been heard to criticize any of Gorscuh's rulings.
      To apply Gorsuch's test, his record could be read to indicate that he is "very likely a bad judge." His rulings or dissenting opinions tilt strongly in favor of outcomes agreeable to a judge who reached the bench after a career steeped in conservative politics and law. He started an alternative conservative student newspaper as an undergraduate at Columbia. He had a dual Supreme Court clerkship with two moderate justices, Byron White and Anthony Kennedy, but then moved on to a corporate law firm and the post at the Bush Justice Department.
      The liberal groups — ACS, the Alliance for Justice, and the NAACP Legal Defense Fund — all generally view Gorsuch as favoring interests of business and employers over consumer and worker rights. In civil rights cases, "he's able to see the facts through the eyes of the employer but not through the eyes of the people who have been discriminated against," Sherilynn Ifill, the Legal Defense Fund's president and counsel-director, remarked on MSNBC on Sunday.
      Appearing on the same program, moderated by MSNBC's chief legal correspondent Ari Melber, Cecile Richards, national president of Planned Parenthood, said Gorsuch has "a disturbing record on women's issues." Gorsuch has not ruled in a squarely joined abortion rights case, but the book-length dissertation that he wrote criticizing assisted suicide laws is viewed by abortion rights groups as a worrisome sign of pro-life views tilting toward a vote to overturn the landmark decision in Roe v. Wade. In the controversial Hobby Lobby case, he voted to allow religiously motivated employers to opt out of the Obamacare requirement to provide coverage for contraceptives in employee health plans.
      In like vein, Gorsuch's call to reconsider the 30-year-old precedent that established so-called Chevron deference toward federal administrative agencies would be, in the present context, a boon to business and anti-regulatory conservatives. Gorscuh's mother, now known as Anne Gorsuch Burford after a remarriage, was strongly criticized for dismantling environmental regulations while head of the Environmental Protection Agency under President Ronald Reagan.
      Despite the pronounced tilt in his opinions, Gorsuch is widely admired as a careful and cautious jurist. He is likely to be that much more cautious on the witness stand as outnumbered Senate Democrats seek to pin him down on major issues and highlight problematic opinions. But Senate Republicans who have voted in virtual lockstep for all of Trump's nominees so far seem unlikely to break ranks, making confirmation the most likely outcome after a contentious hearing and sharply debated votes in committee and on the Senate floor.

Sunday, March 19, 2017

On Travel Ban, Critics Hope Trump Keeps Talking

      Time and again over the past two months, Trump voters have defended the president's actions in office by saying that he is doing exactly what he promised during the campaign. Two federal judges took Trump at his word last week in parallel rulings to strike down Trump's revised executive order on travel and immigration. In rulings issued within hours but thousands of miles apart, both judges found that Executive Order 13,780 amounted to the "Muslim ban" that Trump promised during the campaign to institute if elected despite the administration lawyers’ efforts to explain it on national security grounds.
      With the rulings by federal district court judges Theodore Chuang in Maryland and Derrick Watson in Hawaii, the Trump administration has now struck out in court three times but is refusing to retire to the dugout. Instead, the administration appealed the decision in the Maryland case on Friday [March 17] and presumably is preparing to appeal the decision in the Hawaii case. The appeal in the Hawaii case could go to the same three-judge panel that previously upheld the injunction against the administration’s first executive order in a case brought by the states of Washington and Minnesota.
      At the risk of mixing sports metaphors, the two rulings on the administration’s revised order are the equivalent of an “own goal” in soccer. Both judges naturally cited Trump’s campaign promise to impose a “total and complete shutdown of Muslims entering the United States.” And they quote the Trump adviser Rudolph Giuliani as saying that Trump tasked him with coming up with “the right way to do it legally.”
      That was enough evidence to convince Judge James Robart in the Washington case that the first executive order was in fact a Muslim ban that violated constitutional principles on freedom of religion. Stephen Miller, a 30-something “senior” policy adviser in the White House steeped in anti-immigrant views since he was a teenager, gave the plaintiffs in the new cases the evidence they needed to kick the administration’s case into its own net. Interviewed by Fox News on the White House lawn, Miller declared that EO2 would have “mostly minor technical differences” from EO1 and would represent “the same basic policy outcome for the country.”
      The facts in the cases are bad for the administration, but the two new rulings, though strongly written, are by no means free of legal doubt. If one or both cases reach the Supreme Court, the outcome would be less than certain. And it could turn on the vote of a yet-to-be-confirmed ninth justice: hypothetically, Trump’s nominee for the vacancy, the conservative federal appeals court judge Neil Gorsuch.
      The administration claims that the ban on travelers from originally seven and now six majority-Muslim countries after Iraq was deleted from the list was needed to protect the homeland from attack by “radical Islamic terrorists.” The administration argued as justification that the Obama administration had warned against travel to those countries, but plaintiffs’ lawyers echoed immigration rights advocates in pointing out that no terrorist attacks within the United States have been linked to immigrants from the countries included in the ban.
      Trump was speaking to a political rally in Nashville right after getting word of the ruling in the Hawaii case. He called it a “political decision” and for good measure voiced regrets that he had been prevailed on to water down the original order. The partisan critique is belied, however, by the rulings in the Washington case. Robart was appointed by President George W. Bush; the three-judge panel that unanimously upheld the injunction he issued included two Democratic appointees — William Canby and Michele Friedland— and one Bush appointee, Richard Clifton. With 29 judges on the Ninth Circuit altogether, only five Republican appointees voted to rehear the government’s appeal of the injunction.
      The two new cases include individual plaintiffs with arguably stronger arguments for legal standing to challenge the executive order in court than the two states, Washington and Minnesota, that brought the earlier suit against the first executive order. Hawaii is the named plaintiff in that case, but the plaintiffs also include a local Muslim leader, Ismail Elsheikh, a U.S. citizen with a Syrian-born wife, who says the ban will prevent a family visit by his Syrian mother-in-law. The Maryland case, brought by the International Refugee Assistance Project, also includes individual plaintiffs with similar interests in travel by relatives from the affected countries.
      All three rulings collide with the usual deference that courts give to the executive branch on national security issues and with the usual preference to rely on representations in court over out-of-court statements, such as campaign speeches or news interviews. In addition, former U.S. solicitor general Paul Clement rebutted the criticism of the administration’s singling out of individual countries in the order. “You can't have an immigration regime unless you focus on the country of origin," he remarked at a law school appearance, noting as an example the 50-year ban on travel from Cuba.
      Still, plaintiffs’ lawyers are optimistic and confident. “Keep talking, Mr. President,” Omar Jadwat, the ACLU’s lead lawyer in the Maryland case, taunted in a blog post. Harvard law professor Alan Dershowitz similarly saw Trump as his own worst adversary in the case. The best thing the president could do for the case, Dershowtiz quipped, would be to stop talking — however improbable that might be.

Sunday, March 12, 2017

On Racial Justice, Thomas's Original Misunderstanding

      The Supreme Court struck a glancing blow for racial justice last week [March 6] by giving judges in criminal cases the power — and even the responsibility — to police racism in the jury room. The court's 5-3 ruling established a constitutional rule that entitles defendants to challenge a conviction if they have substantial evidence that a jury's verdict may have been tainted by racial stereotypes or animus.
      The ruling in a Colorado case seeks to enforce the Sixth Amendment's guarantee to "an impartial jury" by mandating a racial-bias exception to the general rule that prevents jurors from impeaching a verdict after the fact. The so-called "no-impeachment rule," aimed at protecting the confidentiality of jury deliberations, dates back to 18th century England and has prevailed generally in the United States but with a variety of specific exceptions.
      The ruling gives Miguel Peña-Rodriguez, a Mexican immigrant brought to the United States with his family as a child, a chance to overturn a sexual misconduct conviction that rested on shaky eyewitness testimony. In lengthy jury deliberations that ended with a compromise verdict, a former policeman told fellow jurors that Mexican men were sexual predators and that Peña's alibi witness, also Mexican, was not to be believed.
      The 5-3 majority in Peña-Rodriguez v. Colorado consisted of Justice Anthony M. Kennedy and the bloc of four liberal justices. Writing for the majority, Kennedy linked the ruling to an historical imperative: "The Nation must continue to make strides to overcome race-based discrimination," he wrote in a concluding paragraph.
      Writing for the three conservative dissenters, Justice Samuel A. Alito Jr. acknowledged the "great damage" from "even a tincture of racial bias" in the criminal justice system, but marshaled a series of doctrinal and practical objections to the "intrusion" into the confidentiality of jury deliberations. Chief Justice John G. Roberts Jr. joined Alito's opinion without writing separately, but Justice Clarence Thomas also added his own separate dissent to denounce the ruling as inconsistent with "the original understanding of the Sixth or Fourteenth Amendment."
      For Thomas, it was enough to know that the common-law right to a jury trial recognized by the English jurists William Blackstone and Lord Mansfield gave defendants no right to impeach a jury verdict with juror testimony about juror misconduct. Thomas cites his own concurring opinion from a 2000 decision as authority for limiting the Sixth Amendment right to the right as it existed in 18th century England.
      Even if one subscribes to the original understanding cult, Thomas overreads the history of the no-impeachment rule in 18th century England. The English common law gave judges the power to set aside a jury verdict because of "partiality." Thomas prominently cites a decision by Lord Mansfield in 1770 declaring that a juror's affidavit to impeach a verdict "can't be read." In a footnote, however, Thomas concedes that prior to 1770 juror affidavits "were sometimes received" to impeach a verdict though only "with great caution."
      Thomas concedes further that after independence American states took different positions on the issue in the 19th century. But he stresses, as the majority themselves acknowledge, that Lord Mansfield's rule had become "firmly entrenched" by the time the Fourteenth Amendment was ratified in 1868.  Thomas fails to note, however, that race was not an issue in 18th century England and that as of 1868 the United States had not even begun the effort to eliminate race from criminal justice system.
      For the original understanding crowd, history and law apparently stop there. But Kennedy notes in the majority opinion that some states began adopting more flexible rules by the early 20th century. He also lists in an appendix the 15 states and the District of Columbia that have recognized a racial-bias exception to the no-impeachment rule in judicial decisions going back as far as 1961. Answering the dissenters, Kennedy said none of the states have reported that jury deliberations have been chilled or that courts have had problems applying the exception.
      Colorado is one of nine other states that have codified exceptions to the no-impeachment rule generally to allow evidence of juror misconduct, such as use of alcohol or drugs or communication with nonjurors. The Colorado Rule of Evidence at issue in Peña's case followed many other states in allowing post-verdict evidence from jurors as to the use of extraneous prejudicial information, improper outside influence, or a mistake in the verdict form. The Colorado Supreme Court split 4-3 in rejecting Peña's plea for a full hearing to explore the influence of the racist juror's remarks on the other jurors.
      In federal courts, Congress enacted a no-impeachment rule in 1975, as recommended by the Supreme Court, that included only the three limited exceptions found in state rules. And the Court itself had declined to go further in decisions unrelated to racial issues in 1987 and more recently in 2014. In his dissent, Thomas argued that any further exceptions should be left to "the political process."
      For the majority, however, Kennedy said that eliminating racial prejudice from the criminal justice system could not be left to legislatures alone. "[B]latant racial prejudice must be confronted in egregious cases like this one . .  .," Kennedy wrote. "It is the mark of a maturing legal system that it seeks to understand and implement the lessons of history."

Sunday, March 5, 2017

Update on 'Deconstructing' the Administrative State

      Ryan Zinke marked his first day as secretary of the Interior by rescinding an Obama administration directive aimed at protecting wildlife from lead poisoning. News of Zinke's action appeared deep inside the print edition of the Washington Post, but the move fit in with the front-page story a week earlier featuring presidential policy adviser Steve Bannon's call for "deconstruction of the administrative state."
      Bannon used his appearance at the Conservative Political Action Committee's (CPAC) annual get-together in Washington last month [Feb. 23] to commit the Trump administration to an "unending battle" to roll back the web of federal regulations promulgated since the dawn of the modern administrative state. Those regulations help protect workers, consumers, investors, small business operators, and, yes, even birds and other wildlife. But in Bannon's doctrinaire mindset they do nothing but hold back economic progress.
      Zinke, a second-term Republican congressman from Montana, moved to the Interior post on March 3 after winning Senate confirmation on a mostly party-line vote of 68-31. Others of Trump's Cabinet nominees won confirmation on even closer votes. Most notably, Education Secretary Betsy DeVos became the only Cabinet nominee in history to need the vice president's tie-breaking vote for confirmation after two Republicans worried about DeVos's attacks on public schools joined 48 Democrats to produce a 50-50 deadlock.
      Trump has accused Senate Democrats of delay and obstruction toward his Cabinet nominees. In fact, the pace of confirmations has not been especially slow, but the succession of party-line votes has been unusual. Bannon's remarks at CPAC make clear, however, that Democrats had no choice but to oppose many, or even most, of the nominees.
      Many of the nominees, Bannon boasted to the conservatives, "were selected for a reason, and that is deconstruction." One example would be Scott Pruitt, confirmed on a 52-46 vote to head the Environmental Protection Administration (EPA) after having repeatedly sued the EPA in his previous position as Oklahoma attorney general.
      After six weeks in the White House, Trump has less to boast about than President Obama had after his first two months in office. Most notably, Obama won congressional approval of the $787 billion economic stimulus just four weeks after taking office and then watched the measure over the years help lift the country out of the worst economic slump since the Great Depression.
      Trump has nothing by way of legislative enactments despite Republican majorities in the House and the Senate, only a succession of executive actions. A list compiled by a lawyer with the conservative Southeastern Legal Foundation begins with the Inauguration Day freeze on new agency regulations pending installation of Trump nominees and continues through the Feb. 24 order for all agencies to create regulatory reform task forces and to report regularly on efforts to reduce regulation.
      More specifically, Trump acted to allow construction of the Dakota Access and Keystone pipelines, to re-examine finance industry reforms included in the Dodd-Frank Act, and to withdraw the so-called "Waters of the United States" rule aimed at limiting dumping toxic materials into tributary-feeding wetlands. Bigger plans are afoot, such as abolishing the independent Consumer Protection Finance Bureau (CPFB) and cutting EPA's budget by more than 25 percent.
      The list from the conservative legal foundation passes over what amounts to a series of "deconstruction" moves at the Justice Department under the second most controversial of Trump's Cabinet nominees, Attorney General Jeff Sessions.  The fourth-term U.S. senator won confirmation on a 52-47 vote, the closest ever for a successful attorney general nominee. With Sessions himself not voting, one Democrat crossed party lines to join the 51 other Republicans in voting to confirm their well-liked colleague.
      In his confirmation hearing, Sessions repeatedly assured senators, including skeptical Democrats, that he would enforce laws fairly and impartially at the Justice Department even if he had personal disagreements. Sessions has not been true to that commitment. Instead, he has moved to weaken legal protections for minority voters, transgender students, and civilian victims of police abuses.
      Within his first month, Sessions presided over a shift in the Justice Department's previous position of opposing Texas's restrictive voter ID law as an intentional act of racial discrimination. He also prevailed on his reluctant Education Department colleague DeVos to join in withdrawing the previous, jointly issued guidance directing public schools to allow transgender students to use bathrooms and locker room facilities corresponding to their gender identity.
      Most ominously, Sessions signaled that the Justice Department would drop the Obama administration's practice of investigating local police departments for "patterns and practices" of violating civil and constitutional rights. The Obama administration had used the authority granted under a 1993 law to investigate police abuses and promote reforms needed to prevent police killings of unarmed or unresisting civilians.
      Sessions deserved more scrutiny for these policy moves even before the disclosure that he misled the Senate committee in denying any contacts with Russian officials before the election. His decision to recuse himself from any investigation of the Trump campaign's contacts with the Russians was a no-brainer, but it fails to address the well-grounded calls that he resign in the light of his possible perjury before the Senate committee.
      Zinke's low-profile deregulatory move at Interior came as a sop to gun rights and hunting groups that had opposed the last-minute directive from the Obama administration. The directive called on managers of national wildlife refuges to phase out the use of lead ammunition on the sites by 2022.
      Lead poisoning is linked to the deaths of 10 million to 20 million birds annually; as the Post explained in its story. Lead poisoning occurs when fragments of shot are eaten by scavengers or leach into the environment. Hunters opposed the policy because copper or steel ammunition is more expensive.
     When he spoke to the nation's governors last month, Trump explained the slow progress on repealing and replacing the Affordable Care Act by saying that "nobody" knew that health care was so complicated. Federal regulation is easily demonized, but the rules that help make the economy work for the benefit of all are also complicated. Trump's nominees may come to realize that as they settle into their new jobs.