Professor Carolyn Shapiro wrote an op-ed for The Hill titled “What Brown can do for Democrats in examining Gorsuch” about Supreme Court nominee Neil Gorsuch’s upcoming Senate confirmation hearings. She suggests that Senate Democrats could question Judge Gorsuch about Brown v. Board of Education and other historical cases to get a better sense of his judicial philosophy and his views on judicial independence.
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.
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.
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.
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.
It has been over a week since President Trump nominated Neil Gorsuch to a seat on the U.S. Supreme Court. The widely respected and impressively credentialed Judge Gorsuch, currently sits on the United States Court of Appeals for the Tenth Circuit.
The nomination was met with the predictable outpouring of support from Republicans, while the response from Democrats has been more mixed. Democrat Senator Dianne Feinstein praised Gorsuch calling him “caring” and “obviously legally very smart.” CBS News reports that Senator Feinstein, the top Democrat on the Senate Judiciary Committee, did not promise a vote for Gorsuch but describes him as “impressive.”
It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)
Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.
Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”
All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge — and especially the job of a Supreme Court justice — is much more complex and nuanced than catchphrases like “applying the law as written” suggest.
The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.
Professor Carolyn Shapiro was a guest on CLTV’s “Politics Tonight” on February 1, 2017, to discuss President Trump’s nomination of Circuit Judge Neil Gorsuch to the Supreme Court. She highlighted key questions senators might have for Judge Gorsuch and explained weaknesses of originalism.
Professor Carolyn Shapiro spoke with NBC 5’s Mary Ann Ahern on January 31, 2017, about the role of the Supreme Court in explaining the limits of presidential authority in advance of President Trump’s announcement of his nominee to fill the vacant seat left by former Justice Antonin Scalia.