The Gorsuch Report—Confirmation Hearings, Day 3

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.

ISCOTUS Co-Director Carolyn Shapiro offered her insightful take on the hearings on the ACSblog. “It is not surprising that Gorsuch revealed little, but it is unfortunate that the proceedings reiterated the clearly inaccurate view that Supreme Court justices are no more than neutral umpires,” she writes. “They are not, and we all know it. If only we could talk about it.”

When pressed to explain a case in which he joined a unanimous court in ruling against a claim on behalf of an autistic child against a school for failing to adequately serve the child’s needs, Judge Gorsuch said he was sorry for how the case came out, but he was bound by his circuit’s precedent on this issue. (The Supreme Court held on Wednesday that the Tenth Circuit’s standard was insufficiently protective for disabled students.)

Hot button cases were again at issue, although Gorsuch continued to resist saying much of anything about them, other than that they are indeed precedents of the Supreme Court and that he respects precedents. Senator Durbin tried to push the nominee to discuss Roe v. Wade, asking him about his past writings on assisted suicide, in which he considered questions about when life begins. Gorsuch resisted the invitation, stating that the Court in Roe held a fetus is not a person for purposes of the Fourteenth Amendment and “that’s the law of the land, Senator.” Another case Democratic senators wanted to talk about was Citizens United. Senator Whitehouse, who spent much of his time yesterday discussing his concerns about “dark money” in the political process, urged Gorsuch to overrule the decision “that opened the floodgates to unlimited corporate spending on elections.”

Meanwhile, members of the Senate were getting ready for the upcoming confirmation vote. See reports from the New York Times and Time.

Today, the last day of the hearings, will consist of testimony for and against Judge Gorsuch’s nomination. Check back with ISCOTUS for further developments on the confirmation and all things SCOTUS.

The Gorsuch Report—Confirmation Hearings (Halftime Report)

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.”

The day went pretty much according to predictions. Judge Gorsuch was friendly, articulate, thoughtful—no surprises there for a man who has been universally praised for these attributes. In the New York Times, Adam Liptak compared his performance to the widely praised confirmation hearings of Chief Justice John Roberts, concluding that the current nominee was “folksier, a little more combative and a little more canned.” Gorsuch assiduously stayed away from anything particularly controversial, refusing to discuss in meaningful detail any issue that might come before the Supreme Court, including past decisions of the Court (since they may be involved in future litigation).

The senators talked a lot, as senators love to do. Republican senators were clearly impressed; there were no indications of any fissures in their support for the nominee. Predictably, Democratic senators were less impressed, with their critique primarily aimed at two targets: the Republican maneuverings that prevented Obama’s nominee to the Court, Merrick Garland, from getting a hearing; and some of Judge Gorsuch’s opinions that went against the “little guy.” Neither line of attack did more than score a few points among those who were already disposed to be skeptical of the nominee. There was no indication that any of the Democratic efforts to challenge Gorsuch (or to evoke the ghost of Judge Garland) had enough traction to undermine what, short of something totally unexpected, looks to be a confirmation hearing for the next associate justice of the Supreme Court. (The Senate majority leader, Mitch McConnell, said that he expected Judge Gorsuch to be on the Supreme Court within two weeks.)

Some interesting moments of the day:

  • When asked if President Trump had asked him whether he would reverse Roe v. Wade, Judge Gorsuch responded that if the President had done so, “I would have walked out the door.” As USA Today notes, that answer silenced the Committee from asking about President Trump for a time.
  • Judge Gorsuch and his “frozen trucker” case came up a number of times. Democrats used the case to paint Judge Gorsuch as “hardhearted” and to highlight his record of being critical of the courts for excessive deference to administrative agencies.
  • When probed him about workers’ rights, Judge Gorsuch quickly rattled off a list of cases in which he ruled for the “little guy.”
  • Gorsuch was encouraged to discuss his views on when political figures denounce judges. “When anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening,”he said. “I find that demoralizing — because I know the truth.” Senator Blumenthal followed up by asking whether the “anyone” Gorsuch referenced included the President, to which Gorsuch responded, “Anyone is anyone.”
  • “No man is above the law,” was Gorsuch’s answer when questioned about whether he would be willing to rule against the President who nominated him to the High Court.
  • “What’s the largest trout you’ve ever caught?” (Question from Senator Jeff Flake, Republican from Arizona.)

The Week Ahead – March 20, 2015

Judge Neil Gorsuch’s confirmation hearing began on Monday in front the Senate Judiciary Committee. ISCOTUS co-director Carolyn Shapiro is live tweeting much of the hearing, and you can follow her at @cshaplaw. ISCOTUSnow will also have regular posts throughout the week about the hearing. Monday’s session was devoted opening statements by the Senators and by Judge Gorsuch. Questioning will start on Tuesday.

This post addresses non-Gorsuch news. This week, the Supreme Court has oral arguments on Monday, Tuesday, and Wednesday and Conference on Friday. Monday morning, the Court issued its Orders List from its Conference this past Friday, but it granted no new cases.

On Monday the Court heard arguments in Howell v. Howell. Under a divorce decree, John Howell was required to pay his ex-wife half of his Military Rtirement Plan income. Subsequently, the VA found that he suffered from 20% disability due to a shoulder condition related to his service. As a result, he waived a portion of his retirement income to receive disability benefits instead. The state court ordered him to indemnify his ex-wife for the reduction in her income, but John argues that the federal law governing military retirement pay preempts this action. His disability caused a 20% reduction in his income, and in order to receive disability payments he had to take a cut in his retirement pay. The Court will have to determine if John is still required to pay his ex-wife the full portion of his retirement income agreed upon after their divorce even though that retirement income has been reduced due to his military service injury.

Also on Monday the Court heard argument in Murr v. Wisconsin, a case involving property rights and the Takings Clause of the Fifth Amendment. According to Ilya Somin of  The Washington Post, this case “addresses a crucial question about when property owners are entitled to compensation under the Takings Clause.” The issue has to do with how to evaluate the burden of a regulatory taking when the property owner owns more than one parcel of land.

On Tuesday the Court will be hearing arguments in two cases involving big business. In Microsoft v. Baker, the plaintiffs sued Microsoft due to a defect in their Xbox 360, but the district court determined that a class action lawsuit could not take place because the defect affected only 0.4% of the video game consoles. The plaintiffs then dismissed their individual claims with prejudice and appealed the denial of class certification. The Ninth Circuit reversed. According to Law 360, Microsoft is arguing that the Court allowed the plaintiffs to do an “end-run around procedures” by allowing them to appeal a dismissal that they requested. On the other side, Professor Sergio Campos of the University of Miami School of Law noted that “class actions are often necessary because no class member has a stake sufficient enough to bring an individual lawsuit. Earlier this Term, Carolyn Shapiro discussed SCOTUS’s class action jurisprudence (and this case in particular) after Justice Scalia’s death, here.

Additionally on Tuesday the Court will hear arguments involving patents and the printer toner cartridge refill industry in Impression Products, Inc. v. Lexmark International, Inc. Lexmark has a program that allows customers a discount on printer cartridges if they return them to Lexmark when they are empty. Impression Products, Inc. acquired some of the cartridges abroad after a third party converted them to be re-used in violation of Lexmark’s return program. Impression Products resold them in the United States. Impression is arguing that they did not infringe upon the patent because Lexmark granted the authority to resell them when it initially sold them. The Court of Appeals found in favor of Lexmark by holding that their initial sale did not “confer authority” to Impression to resell them.  According to Adam Liptak of  The New York Times, this case will determine how much control patent-holders have over their products once they are sold. The Obama administration to had urged the Supreme Court to hear this case, arguing that the Court has held for 150 years that once a patented product is sold patent laws do not “constrain the subsequent use or resale of that article.”

On Wednesday the Court will hear County of Los Angeles v. Mendez, in which the plaintiffs, a homeless couple, allege that the police violated their Fourth Amendment rights when they entered the shed where the couple was staying without a warrant or announcing their presence.  Plaintiffs were shot by the police because they had a firearm in the shed, and whether or not they were moving the gun or pointing it at the officers is contested. The Ninth Circuit held that the police violated the plaintiff’s Fourth Amendment rights. But as SCOTUSblog explains, the case involves complex issues of qualified immunity, causation, and provocation, in the context of complex and disputed facts, and the briefing at times seems to confuse the issues. The decision of this case will determine if Los Angeles County will have to pay the plaintiffs four million dollars in damages for their injuries.

Finally, on Wednesday the Court will hear arguments in Water Splash, Inc. v. Menon.  Water Splash sued a former employee, a Canadian citizen residing in Quebec, in Texas state court. The respondent was served by mail and did not respond, leading the trial court to grant a default judgment. The Texas Court of Appeals reversed the judgment, citing The Hague Service Convention treaty. The Supreme Court will have to determine if the treaty authorizes service of process by mail. Law 360 analyzes the history of the case, here.

Finally according to U.S. News, President Trump has vowed to appeal his revised travel ban to the Supreme Court if necessary after the ban has been challenged in both Hawaii and Maryland. In Hawaii, U.S. District Judge Derrick Watson stated “the executive order was issued with a purpose to disfavor a particular religion,” and issued a TRO, but the Trump administration argues that the ban is needed for national security.  A district court judge in Maryland has also concluded that the order is likely unconstitutional as it was “intended to be a ban on Muslims,” and imposed a preliminary injunction on certain portions of the order. The government has filed notice of appeal from the Maryland case, and will be appealing to the Fourth Circuit.

 

The Gorsuch Report—Confirmation Hearings Day 1

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. )

Judge Gorsuch is not the only one who has been busily preparing for today. The Judicial Crisis Network, a conservative group, plans to spend $10 million in support of Gorsuch. They are targeting ads at 10 states that voted for Trump and have Democratic senators who will face re-election contests next year. Other conservatives groups are also pushing the Gorsuch cause. On the other side, Democratic Senate Minority Leader Chuck Schumer and liberal groups are busy attacking the nominee. They have focused primarily on drawing attention to rulings in which Judge Gorsuch demonstrated what Schumer described as a “right-wing, pro-corporate, special interest agenda.”

Judge Gorsuch has lamented the turn of confirmation hearings into “an ideological food fight.” In an article he wrote in 2002, while still in private practice, Gorsuch looked back wistfully at the nomination process of Justice Byron White, for whom he clerked in 1991-1992. White’s hearings in 1962 were held just two weeks after President Kennedy nominated him, and they lasted only 90 minutes. “The judicial confirmation process today bears no resemblance to 1962,” Gorsuch wrote. “Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown ‘stealth candidates’ who are perceived as likely to advance favored political causes once on the bench.”

As Adam Liptak of the New York Times explains, Gorsuch joins a long list of Supreme Court nominees who publicly criticized the confirmation hearings. Predictably, each backtracked once their time in the limelight arrived. Once on the bench, however, in speeches and interviews, justices often return to their critical posture and regularly lament the partisanship of the confirmation process.

So what to expect today? The New York Times offers a preview of things to look for. And everyone has suggestions about what kinds of questions the senators should be asking. Here are some ideas from USA Today, Jeff Greenfield, and George Will.

Check back with ISCOTUSnow for daily updates on the hearings.

Weekly Roundup – March 17, 2017

Litigation over the President’s travel bans continues. Earlier this week, judges in Hawaii and Maryland issued orders preventing President Trump’s second travel-ban Executive Order from taking effect. In Hawaii, U.S. District Judge Derrick Watson imposed a nationwide temporary restraining order after finding that “a reasonable, objective observer … would conclude that the executive order was issued with a purpose to disfavor a particular religion.” And in Maryland, U.S. District Judge Theodore Chuang issued a nationwide preliminary injunction enjoining one of the Executive Order’s provisions. Both courts relied on Trump’s campaign promises to impose a ban on Muslims coming to the United States, as well as on subsequent statements made by him and others. While speaking at a rally in Nashville after the Hawaii judge ruled, Trump vowed that he would take the case “as far as it needs to go,” including to the Supreme Court, to defend the ban.

Real Clear Politics recounts an interview CNN’s Anderson Cooper had with Alan Dershowitz, lawyer and constitutional scholar, about Trump’s travel order. Dershowitz explains that if the Supreme Court considers the ban, “[i]t will be an important decision because it will be the first time a court has really handled political statements during a campaign.” And the legal blogosphere is full of commentary on what the Supreme Court might and should do about those statements if and when it considers the travel ban. The Civil Rights Litigation Clearinghouse at the University of Michigan is collecting the filings in all of the cases challenging the travel bans.

On a lighter note, this week Chief Justice Roberts presided over a trial in a lawsuit  against Tom Sawyer. The case was “brought by several boys, played by actors, who had come to regret whitewashing Aunt Polly’s fence. Tom’s guile in persuading them to do his work, they said, amounted to fraudulent misrepresentation.” As the New York Times noted, “the boys, though of limited means, had somehow managed to hire Paul D. Clement, a legal superstar, to represent them.” Tom Sawyer was likewise well-represented, by appellate and Supreme Court expert Cate Stetson. Athough the judicial panel ultimately concluded the case was moot and declined to issue a ruling, it appeared to be a successful evening of entertainment.

Be sure to check ISCOTUSnow next week for the latest news on Supreme Court nominee Judge Neil Gorsuch, as hearings start Monday. ISCOTUS co-director Carolyn Shapiro, @cshaplaw, will be live-tweeting the hearings. Linda Greenhouse offers her opinion of the nominee and the nomination process in the New York Times this week. Echoing the ambivalent position of many on the left, she notes that while she is not opposed to Judge Gorsuch’s confirmation, at least based on what she currently knows, and she thinks it is time to bring the Supreme Court to “full strength,” “the Supreme Court vacancy is not rightfully President Trump’s to fill…”

To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.

The Gorsuch Report—Week 7

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.

The New York Times published an article detailing Gorsuch’s connections to Philip F. Anschutz, the “publicity-shy billionaire” who “inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications.”

At CNN, Ariane de Vogue describes Gorsuch’s “stealth” path to the Supreme Court nomination. First, there were the efforts the administration went through to hide the identity of the nominee until it could be revealed in a prime time news event. Then, in the weeks since the announcement, Democrats have been so busy responding to the President’s tweets and executive orders that they have not been able to focus much attention on Gorsuch. “All along, Gorsuch quietly continued his journey to the high court, meeting with more than 70 senators, boning up on constitutional issues, participating in so-called murder boards with his closest colleagues, where they ask him difficult questions to prepare him for his hearings.”

Having met with 72 senators, Gorsuch is now busy “preparing for his Senate showdown,” Politico reports. Senator Kelly Ayotte, who has been guiding him through his meetings with senators, says that Gorsuch has “been spending a lot of time reviewing case law and reviewing his cases and also participating in some mock hearings.”

According to the New York Times, “Democrats have zeroed in on their most prominent planned line of attack: Judge Gorsuch’s rulings have favored the powerful and well connected.” This strategy is something of a departure from the normal line of attack against conservative jurists, which usually centers on social issues, such as abortion. According to Senator Chuck Schumer, “the social issues are always looming out there with any justice. But where [Gorsuch is] particularly vulnerable is in this antiworker, pro-corporate record.” Along with Senator Richard Blumenthal of Connecticut, Schumer held a press conference today, where they were joined by people they presented as having been adversely affected by Judge Gorsuch’s rulings. Schumer reiterated his basic point: “Neil Gorsuch may act like a neutral, calm judge,” the senator from New York declared, “but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest agenda.” If Gorsuch “shows in his answers that he is out of the mainstream as his opinions indicate he very well may be,” Blumenthal said he would “use every tool available, including the filibuster, to oppose him.”

But Politico posted a story emphasizing the lack of unity among Democrats on how to opposed Gorsuch. “Democrats can’t seem to land a punch on Neil Gorsuch — and it’s not even clear they want to.” Some are following Schumer and Blumenthal, staking out a position of staunch opposition and insisting that they will use the filibuster if necessary. But other Democrats are less sure this is the wise path, since the most likely outcome of a Democratic filibuster would be for Republicans to change the rules and no longer allow filibusters of Supreme Court nominees. “Democrats could wave Gorsuch through, reasoning that confirming him won’t change the balance of the court — but the next vacancy would, and they’d be left without a 60-vote threshold as a weapon.”

Along with these attacks, Gorsuch’s nomination continues to attract considerable support. David C. Frederick, a prominent Supreme Court litigator and self-described “longtime supporter of Democratic candidates and progressive causes” wrote an op-ed in the Washington Post expressing his support for the nominee. “Gorsuch — my former law partner and longtime friend — is brilliant, diligent, open-minded and thoughtful. He was the only Supreme Court candidate considered by this administration that I could support. The Senate should confirm him because there is no principled reason to vote no.”

The conservative activist group Judicial Crisis Network has promised to spend ten million dollars lobbying on behalf of Gorsuch and has hired the law firm Covington & Burling, to help in the effort. Former Republican Senator Jon Kyl, now at Covington, will be involved in the lobbying campaign.

The Week Ahead – March 13, 2017

The Supreme Court has no oral arguments scheduled this week. The only official activity on its calendar is its Conference scheduled for Friday, March 17. SCOTUSblog maintains a running list of petitions they are watching. Some of those petitions have been relisted, in some cases multiple times, meaning that they have been on the list for discussion at Conference repeatedly. Often, such a relist is a sign that the Court is seriously considering granting certiorari and/or that a justice is writing an opinion dissenting from the denial of certiorari. (Sometimes such an opinion never sees the light of day because the drafter is able to persuade enough justices to get the four votes needed for a cert grant.) Among the more interesting cases the Court is considering this week is Masterpiece Cake Shop v. Colorado Civil Rights Commission. In this case, the cake shop owner claims that being compelled by Colorado’s anti-discrimination law to make a cake for a same-sex wedding violates his religious belief and is unconstitutional compelled speech. The case has been relisted repeatedly, and at least one justice requested that the full record be sent to the Court. The New Yorker analyzed the case here.

One petition on the list for Friday has been getting some attention from the leftwing the blogosphere. It is a petition for a writ of mandamus seeks to nullify the results of the 2016 presidential election. Petitioners argue that purported Russian hacking into the presidential election constituted a foreign invasion sufficient to invoke Article IV, §4 of the Constitution which requires the federal government to protect states from foreign invasion. The chances of this petition being granted, however, are essentially nil, as this post explains.

Last week, Justice Ginsburg appeared at the Washington National Opera. As The Washington Post reported, it was “an iteration of what has become an established routine, now called ‘Justice at the Opera,’ that involves her giving some remarks, and making some jokes, while acting as a kind of emcee for opera arias and scenes relating, more or less, to legal matters. (On Thursday, the opening number, the scene from “Falstaff” in which two women get the same love letter from the same man, was offered as an example of mail fraud.)”

On Tuesday, the City Club of Cleveland will feature a panel titled “Advice and Dissent: Gorsuch and the Future of an Independent Supreme Court.” The event is open to the public and will discuss President Trump’s nomination of Judge Neil Gorsuch following the Senate’s contentious decision to refuse hearings for President Obama’s nominee, Judge Merrick Garland.

On Wednesday, Justice Alito will be a featured speaker at an Advocati Cristi event at St. Paul Inside the Walls: The Catholic Center for Evangelization at Bayley-Ellard in Madison, New  Jersey. The event is open to the public. SCOTUS Map lists this speaking event and others here.

Be sure to check in with http://blogs.kentlaw.iit.edu/iscotus/ in the middle of the week to see the latest news on Supreme Court nominee Judge Neil Gorsuch.

Weekly Roundup – March 10, 2017

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

This week the Supreme Court issued orders on Monday. The Court remanded Gloucester County School Board v. G.G., the case about transgender students’ bathroom access, back to the court of appeals for a decision after the Trump administration rescinded the Obama’s administration guidance on the issue, although both parties asked the Court not to do so. In Slate, Mark Joseph Stern speculates about the possible vote-counting among the justices that led to the decision not to hear the case. And Adam Liptak of The New York Times reported that other cases involving transgender rights are moving through the lower courts, so such issues may well find their way to the Supreme Court within the next couple of years.

As we reported on Monday, the Court issued two opinions in argued cases this week. Notably, it held in Pena-Rodriguez v. Colorado that the constitution requires that jury deliberations can be unsealed for investigation if there is clear evidence of racial bias. Justice Kennedy’s opinion for the Court has received mixed reviews. Noah Feldman of Harvard Law School praised it as being “unusually honest and direct about how race in America has historically tainted the fairness of the judicial system.” But an opinion piece in the Wall Street Journal argues that the opinion opened a Pandora’s box of new types of “politically correct” challenges to jury verdicts. And Ryan Owens of the University of Wisconsin points out that the effects of the case could be significant.

Also on Monday, Justice Thomas issued an opinion respecting the denial of certiorari in the case of Leonard v. Texas. Although he agreed with the denial of cert due for procedural reasons, he took the opportunity to express grave concerns about the constitutionality of the current civil forfeiture system, under which people who have not been found guilty — and might even be acquitted or not charged at all — lose their property to the government. For more information on the Court’s orders this week, check out Monday’s Weekly Preview.

Monday marked 160 years since the Supreme Court handed down the decision in Dred Scott v. Sandford, which held that African-Americans were not citizens of the United States, and thus did not have the ability to sue in federal court. Descendants of then-Chief Justice Roger B. Taney issued an apology this week to descendants of Dred Scott. Taney’s great-great-great nephew, Charles Taney IV apologized to the Scott family and all African-Americans, for the “terrible injustice of the Dred Scott decision.” Scott’s great-great-granddaughter, Lynne Jackson, accepted his apology on behalf of the Scott family, thanking them for their “courage and grace.” According to The Baltimore Sun, the families issued a joint statement stating, “the Scotts and the Taneys believe that Americans should learn from their history, not bury their history.” Maryland is considering removing a sculpture of Justice Taney which sits outside their State House, although the families believe the statue should remain. The families are instead suggesting a statue of Dred Scott be created near it, in order to improve the “dialogue” regarding racial “reconciliation and justice.”

President Trump also nominated Noel Francisco as solicitor general of the United States this week. If confirmed, Francisco will need little adjustment time in taking on the responsibility of representing the Trump Administration before the Supreme Court, as he has been the acting solicitor general since January. USA Today reported that Francisco is a former clerk for Antonin Scalia, a former Justice Department official under George W. Bush, and a former partner at Jones Day law firm. USA Today also notes that the job is often called the “10th justice” due to its close working relationship with the Court. According to CNN, the solicitor general position is one of “the most coveted legal jobs in Washington.” The “S.G.” “plays a vital behind the scenes role of determining whether the United States will appeal in thousands of cases each year.” In addition to his temporary position as acting solicitor general, he has argued before the Court as a private attorney.  The Washington Post notes that the solicitor general’s office includes only two political appointees, and it is “small but elite.” Francisco will have to leave his position as acting S.G. in order to prepare for his confirmation hearing, as there is a law in place that limits the president from nominating someone to a position in which they already have in an acting capacity.

Finally, ISCOTUS co-director Carolyn Shapiro published an op-ed in The Hill this week. In the article, she argues that Democratic senators should press Judge Gorsuch to go beyond claims of being a neutral umpire and offers suggestions for how to do so.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”

 

The Gorsuch Report—Week 6

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. Continue reading

The Week Ahead – March 6, 2017

On Monday morning, the Court issued orders and announced two opinions from the bench. The most notable order was its decision in Gloucester County School Board v. G.G. to remand to the lower courts in light of the Trump Administration’s decision to rescind guidance related to transgender students’ bathroom access. This order does not end the litigation, however. Instead, it will be up to the lower courts to now evaluate the statutory and constitutional arguments in the absence of administrative guidance. Both sides had asked the Court to hear the case despite the change in the federal government’s position, as SCOTUSblog described.

In Beckles v. United States, the Court, in an opinion by Justice Thomas, held that void-for-vagueness challenges do not apply to the advisory sentencing guidelines. Justice Sotomayor and Ginsburg concurred in the judgment, and Justice Kagan did not participate. And in Pena-Rodriguez v. Colorado, the Court held 5-3, in an opinion by Justice Kennedy and joined by the four liberal justices, that Colorado’s rule against the admissibility of evidence related to jury deliberations could not stand where a juror stated that he was relying on racial stereotypes or discriminatory views. There were also several opinions issued with the Orders List. Notably, in a unanimous, per curiam opinion, the Court remanded Rippo v. Baker because it said that the lower court used the wrong standard in determining whether there was an unconstitutional risk of bias on the part of a judge in a capital murder trial. (The judge was under investigation and ultimately was indicted for bribery.)

Although the Court will not hear oral arguments this week, two of the justices will maintain high profiles at two separate events, both to be held on Friday. Chief Justice John Roberts will appear at an event in New York commemorating Second Circuit Court of Appeals Judge Henry Friendly, The New York Law Journal reports. Friendly served on the 2nd Circuit from 1959 to 1986, and he was chief judge from 1971 to 1973. Roberts clerked for Friendly from 1979 to 1980. Judge Merrick Garland, Chief Judge of the U.S Court of Appeals for the District of Columbia Circuit and President Obama’s pick to replace Justice Scalia, also clerked for Friendly and will be at the event as well.

Also on Friday, Justice Sotomayor will speak at Stanford University. She will converse with M. Elizabeth Magill, Dean of Stanford Law School, and she will answer questions posed by students. The law school’s Office of the President is hosting the event with senior class presidents of 2017.

Those interested in reliving relatively recent Supreme Court history can catch the finale of the ABC miniseries When We Rise. The series, which is available on Hulu, includes a finale that, as The Advocate explains, focuses on “how activists fought for and won marriage equality in the United States, beginning with the passage of Proposition 8, which sparked a new generation of advocates, and the legal fight leading up to the Supreme Court,” and includes Debra Winger playing Justice Elena Kagan. The legal fight over California’s Proposition 8 (which outlawed same-sex marriage after the California Supreme Court recognized it as required under the state constitution) was the 2013 case of Hollingsworth v. Perry. (The Court did not reach the merits in Hollingsworth, which left standing a lower court determination striking down Proposition 8 on very narrow grounds.) Hollingsworth was decided at the same time as United States v. Windsor, in which the Court struck down the portion of the federal law that prohibited the federal government from recognizing same-sex marriages. Two years later, the Supreme Court declared marriage equality the law of the land in Obergefell v. Hodges.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”