The Gorsuch Report—Confirmation Hearings, Day 3

By Professor Christopher Schmidt

It was another long day for Judge Neil Gorsuch. Yesterday, day three of his Supreme Court confirmation hearings, was the second round of questions from senators on the Judiciary Committee. In the first round, senators had thirty minutes each to question the nominee; for the second round, senators had twenty minutes each. The headlines were largely the same as the day before: Gorsuch was composed and articulate, if perhaps a bit overly scripted at times; he gave precious little in the way of specific views on key legal issues or precedents, seemingly even less than other recent nominees; and things generally are looking good for the judge to become the next associate justice of the US Supreme Court.

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The Gorsuch Report—Confirmation Hearings (Halftime Report)

By Professor Christopher Schmidt

It was a long day for Supreme Court nominee Neil Gorsuch. For over eleven hours yesterday, the 10th Circuit judge answered questions from the Senate Judiciary Committee. Each senator had thirty minutes to question Judge Gorsuch (or, as was often the case, to deliver monologues with question marks at the end). The second day of the confirmation hearings concluded after the dinner hour on a rather strange note, with a senator suggesting that Judge Gorsuch stay away from vodka for the night and the nominee saying he was ready to “hit the hay.”

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The Gorsuch Report—Confirmation Hearings Day 1

By Professor Christopher Schmidt

It’s finally here. Today, the Senate Judiciary Committee begins its confirmation hearing for Judge Neil Gorsuch to become the next associate justice of the Supreme Court.

Judge Gorsuch has been busy during the seven weeks since President Trump nominated him. He has met with 72 senators. He has been studying, going over his own opinions and reviewing major Supreme Court decisions that are likely to be discussed at the hearings. And he has been sharpening his answers by participating in simulated confirmation hearing sessions. (NPR’s Nina Totenberg notes that Robert Bork, who the Senate refused to confirm in 1987, “refused to submit himself to these practice sessions, and paid dearly with a performance that made him sometimes sound arrogant and less than fully candid.” The New York Times just posted a video documentary looking back at the Bork nomination. )

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Professor Schmidt: “The Gorsuch Report—Week 7”

By Professor Christopher Schmidt

Less than a week away from the confirmation hearings for Neil Gorsuch to be the next associate justice of the Supreme Court and the media machine is ramping up. Journalists are publishing a new round of stories on Gorsuch. Commentators, activists, and politicians are busy attacking and defending the nominee, each side hoping to score a few points before the main event begins on Monday.

In the National Law Journal, Tony Mauro reviewed notes from a 2010 speech Judge Gorsuch submitted to the Senate Judiciary Committee, concluding that the nominee offered a distinctly “bleak” portrait of the American legal system. Among Gorsuch’s complaints were the expense and delays of the discovery stage of civil litigation. “Not long ago we used to have trials without discovery,” he noted. “Now we have discovery without trials.” Gorsuch also lamented the increasing “vitriol” of the Supreme Court confirmation process.

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Professor Schmidt: “The Gorsuch Report—Week 6”

By Professor Christopher Schmidt

It’s week six of the Gorsuch nomination. His nomination hearings begin on March 20.

The first anniversary of the death of Justice Antonin Scalia (whose seat Gorsuch, if approved, would take) has sparked a new round of comparisons between the two jurists.

Judge Gorsuch, writes Richard Wolf in USA Today, “represent[s] the first generation of Supreme Court justices to have been influenced by Scalia’s rulings, writings, and teachings while still in law school.” Gorsuch’s writing has often been compared to Scalia’s. Mark Sherman of the AP wrote a story on his accessible writing style.

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Professor Schmidt: “The Gorsuch Report—Week 5”

By Professor Christopher Schmidt

It’s been almost a month since Judge Neil Gorsuch was nominated to a seat on the U.S. Supreme Court. Here’s the latest news on his confirmation process.

The most interesting news of the past week concerning the Gorsuch nomination was a plan floated by New Mexico Senator Tom Udall that sounded a lot like a West Wing episode (Season 5, Episode 17). Udall’s plan would involve Trump administration officials striking a deal with a liberal Supreme Court justice who might be looking to replace that justice with Judge Merrick Garland, allowing Obama’s and Trump’s nominees to get seats on the Court. Call it the Gorsuch-Garland Gambit. Udall believes such a plan show the country that the new President is really interested in acting to “unite the country.” (It’s not going to happen, but it’s fun to think about it.) To no one’s surprise, the White House does not think much of Senator Udall’s plan.

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Professor Schmidt: “The Gorsuch Report—Week 4”

By Professor Christopher Schmidt

It’s been over three weeks since Judge Neil Gorsuch was nominated to become a U.S. Supreme Court associate justice. Here’s the latest news on his confirmation process.

Among the senators who will vote on his appointment, Minority Leader Chuck Schumer remains Gorsuch’s most vocal critic. The Democratic senator from New York previously took to the pages of the New York Times to air his concerns with Gorsuch. While praising Gorsuch as “clearly very smart, articulate and polite, with superb judicial demeanor,” Schumer criticized him for refusing “to answer even the most rudimentary questions” about where he stands on pressing legal issues. For Schumer, this all feels “eerily similar” to what happened when Chief Justice Roberts went through this same process. Roberts was “similarly charming, polished and erudite,” Schumer writes. He “played the part of a model jurist.” But “when Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge,” warns Schumer.

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Professor Schmidt: “The Gorsuch Report—Week 3”

By Professor Christopher Schmidt

Here are the latest headlines for President Trump’s Supreme Court nominee Neil Gorsuch.  

The Clerks Speak Out. Judge Gorsuch’s past law clerks signed a letter to the Senate Judiciary Committee declaring that his independence “will never waiver.” (The only former Gorsuch clerks who did not sign are two currently clerking at the Supreme Court.) The Federalist published a supportive statement from two of his former clerks, one liberal, one conservative. They identified three lessons they learned from clerking for Judge Gorsuch: “the importance of accessible and clear writing, devoid of legalese”; “the importance of stepping back from the law and facts on your side to analyze the holes in your case and the facts and law supporting the other side”;  and he “urged us to pursue a fulsome understanding of the nuance and complexity of the legal and factual issues in each case.”

Pegging Gorsuch. In a widely cited study, political scientists Lee Epstein, Andrew D. Martin and Kevin Quinn predicted that Judge Gorsuch would fall somewhere between Justices Alito and Thomas on the conservative end on the ideological spectrum of current Supreme Court justices (in the same territory that Justice Scalia occupied). Now we have another study, this one by political scientists Ryan Black and Ryan Owens, who argue that Gorsuch in fact would on the the far right on the ideological spectrum–more conservative even than Justice Thomas.

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Professor Rosado on the Failure of the Puzder Nomination

By Professor César Rosado Marzán

The nomination of fast-food CEO Andrew Puzder had failure written all over the place since the day it was announced. Puzder is known for being virulently anti-worker. His employees have filed scores of lawsuits against his company. He has publicly said that he prefers robots to employees because robots do not complain. In all, Puzder is a fanatical employer advocate with no apparent interest in meeting workers half way. Continue reading “Professor Rosado on the Failure of the Puzder Nomination”

Professor Shapiro on Playing Fast and Loose with Assertions of National Security

By Professor Carolyn Shapiro

There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

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