Why the Democrats Lost the Gorsuch Hearings

Judge Neil Gorsuch is headed toward Senate confirmation. Ever since the President made the nomination, it has been hard to imagine another outcome. Short of some scandalous skeletons emerging from Judge Gorsuch’s closet—a closet that, by all accounts, appears safely devoid of anything of much interest—this is a loss Democrats expected. The Republicans have the votes to put Gorsuch on the Court (although they may need to invoke the “nuclear option” and eliminate the filibuster to do so). Gorsuch’s strong performance in the hearings only gave them more reasons to support him.

Knowing this was a loss they were going to have to absorb, Democrats still hoped to at least score some political points during the hearings. It was a highly visible opportunity to advance their concerns with the politics surrounding the nomination process and the nominee’s conservative jurisprudence. Yet here too, I think the Democratic efforts should be judged a loss. They were unable to take advantage of the hearings to advance their agenda in any meaningful way.

Short of actually blocking the appointment of Gorsuch to the Supreme Court, here are three goals that Democrats sought to advance at the hearings:

First, they wanted to use the nomination to return the nation’s attention to the injustice of last year’s Republican blockade of the nomination of Merrick Garland.

Second, they sought to poke holes in the whole judges-as-neutral-umpires safety shield that nominees have used to avoid answering substantive questions about how they approach those hard cases where value-informed judgment is required. Although both liberal and conservative nominees have used this strategy, conservatives, as my colleague Carolyn Shapiro has shown, have found ways to deploy it with greater effect.

And third, Democrats hoped to use the hearings to challenge what they view as fundamental flaws of originalism, the theory of legal interpretation that Justice Scalia famously advocated and that Judge Gorsuch has embraced.

Getting any leverage out of any of these three lines of attack proved harder than Democrats hoped, however. They tried, but came up short on each of these goals.

The Garland Taint

Using the ghost of Judge Garland as a weapon to attack Judge Gorsuch and Republicans proved hard to do effectively, in part because expectations among some on the left were unrealistically high. Some liberals went so far as to argue that to protest the Republican Senate leadership’s refusal to hold hearings on Garland, whom President Obama nominated soon after Justice Scalia’s death, there should be no hearings or that Democrats should refuse to participate or that they should categorically reject any Trump nominee. One need not defend what Republicans did to believe such responses strategically ill-advised. Democrats had no ability to prevent the hearing from taking place. And refusing to participate was never a wise move. American politics run on short memory, and leveraging a past norm violation as justification for a new one might satisfy a desire for retribution, but it makes for a weak case beyond those who are already on your team.

I also think that the effort to use the Garland episode to justify opposition to Gorsuch missed a key point. The legitimacy of the Republican strategy was adjudicated in the only way that these kinds of nonjusticiable constitutional disputes (the courts were not about to weigh in on the issue) can be: through the political process. We had an election. Although some Democrats sought to make the Republican blockade a decisive election issue, they failed. They failed in those Senate races in which they targeted Republican blockaders. They failed in the presidential race, where Hillary Clinton saw little advantage in making it a major issue of her campaign. It was fine for the Democrats to keep the issue in the air at the hearings. But enough Americans had basically accepted that right or wrong, dirty pool or not, the Republicans had won this one and it was time to move on

(One caveat to this reading of the 2016 election: Since most polls had Clinton winning, there was likely less mobilized opposition to the Republicans on this issue than there would have been otherwise. Most assumed it wouldn’t matter in the end. If it had looked like Clinton was going to lose, I assume Democrats would have made it a bigger campaign issue.)

Neutral Umpires

Democrats tried to move Gorsuch off his carefully refined talking points about there being no Republican judges or Democrat judges, but only judges. They wanted to force him to concede that hard cases demand judgment and that judgment necessarily draws on a judge’s view of the world and values. They wanted to talk about Gorsuch’s values because they believed a more direct discussion about his conservative ideology would allow them to question whether in fact the American people wanted someone with his particular set of conservative commitments. This was a highly difficult, perhaps impossible, task. Robert Bork was willing to engage with these kinds of challenges, of course, but we all know how that turned out. Gorsuch had been carefully prepared to avoid that fate. He made Democratic efforts particularly ineffective because he was so uncompromising in hewing to the neutral-umpire line and because he was highly skilled at pulling it off. (Perhaps not quite as smooth and persuasive as Chief Justice Roberts had been at his confirmation hearings, but Roberts set an impossibly high bar.)

The Democrats also lacked sufficient ammunition for this line of attack. They had a handful of cases in which Gorsuch’s reading of the law led to him outcomes that the Democrats saw as unjust. The most discussed example was the so-called “frozen trucker” case. But Gorsuch was able to offer an effective two-pronged defense, indicating that he sympathized with the victims in these cases but then claiming that he was just doing what the law demanded. The law made him do it. He was just applying the law, neutrally. Since Democrats were unable to make a strong enough case that Gorsuch in fact injected his own values into his reading of the law (as judges inevitably do in cases where the law does not offer a clear answer), he emerged from these dialogues largely unscathed, and perhaps even strengthened, since he was able to portray himself as someone who is willing to follow the law even when he does not like the outcome it gives him.

Attacking Originalism

Democrats also sought to go after Gorsuch’s self-declared commitment to originalism as a theory of constitutional interpretation. Advocates of this theory believe that the Constitution should be read to mean what it meant at the time the American people ratified the text.

Originalism is vulnerable to challenge. Beneath its common sense, bumper-sticker appeal (the Constitution means now what it always meant—end of story) and its hard-to-challenge reverence for the Founding Fathers, originalism relies on potentially unattractive assumptions about American constitutionalism. Do we really want to be ruled by the “dead hand” of the past? Originalism also produces some distinctly unappealing results. This is originalism’s “Brown problem.” Originalism gets Brown v. Board of Education wrong: relying on the original meaning of the Fourteenth Amendment would allow for racial segregation in schools. And no one wants to be on the wrong side of that case. Even Judge Gorsuch, who refused to agree or disagree with pretty much any case the Court has decided, eventually went on record as saying that Brown was rightly decided.

The challenge of this angle of attack is that it quickly gets into the weeds of legal theory and the deep recesses of constitutional history. Legal commentators lament the Democrat’s unwillingness to ask the kinds of follow-up questions that might expose the weaknesses of originalism, but this assumes that these kinds of follow-ups would actually serve a purpose in the context of the confirmation hearings. Do the American people really want to hear a discussion about the difficulties of selecting the appropriate level of generality to determine constitutional meaning? Do the senators have the knowledge or inclination to engage 18th-century debates over the meaning of due process? The Democrats assumed, probably correctly, that these were rabbit holes they did not want to go down. So they did not really challenge Gorsuch to squarely confront the weaknesses of his chosen method of constitutional interpretation. Constitutional law professors were throwing their pocket Constitutions at their TVs (or computers or smartphones), but originalism emerged from these hearings no worse for wear.

Although the Democrats did not, in the end, get as much out of the hearings as they had hoped to, it is important to note one important achievement of the hearings, although one that transcends partisan politics and should be counted as a win for the American constitutional system. The hearings offered four days of discussion about the value of the rule of law and the independent judiciary. On this point, Democratic and Republican senators and the nominee himself were all on the same page. It’s an important point to be heard, never more so than today.

The Week Ahead – March 27, 2017

The Court has oral arguments in eight cases scheduled for this week. On Monday, the Court will hear arguments in four cases, three of which are consolidated. The three consolidated cases of Dignity Health v. Rollins, Advocate Health Care Network v. Stapleton, and Saint Peter’s Healthcare System v. Kaplan present the issue of whether the Employee Retirement Income Security Act of 1974’s (ERISA) church-plan exemption applies to plans operated by organizations, such as hospitals, that are affiliated with churches although not themselves churches.

The defendants in the cases are all religiously affiliated operators of hospitals whose employees sued, alleging that the plans do not qualify for the exemption. Advocate Health Care Network is a ministry of the Lutheran and Church of Christ denominations that operates Illinois hospitals. Saint Peter’s Healthcare System is a Catholic ministry that operates a New Jersey hospital. Dignity Health operates several California hospitals sponsored by nuns. The federal agencies that administer ERISA (the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation) have treated the pension plans of such hospitals as exempt from ERISA for more than 30 years.

The exemption from ERISA depends on a definition of “church plan” in the Act. ERISA, as originally drafted, exempted any plan “established and maintained for its employees by a church.” Amendments in 1980 state that a “plan established and maintained for its employees … by a church … includes a plan maintained by an organization … controlled by or associated with a church.” The Atlantic discusses this case in depth, here.

On Monday, the Court also will hear arguments in TC Heartland LLC v. Kraft Foods Group Brands LLC, which analyzes whether the patent venue statute, 28 U.S.C. § 1400(b), providing that patent infringement actions “may be brought in the judicial district where the defendant resides[,]” may be supplemented by 28 U.S.C. § 1391, which contains a subsection (c) that, in some cases, deems a corporate entity to reside in multiple judicial districts. Kraft Foods sued in Delaware, alleging that TC Heartland had infringed Kraft’s patent for a “liquid water enhancer” – a product that allows people to add flavoring to plain water.  Heartland sought to transfer the case to Indiana, its state of incorporation, arguing that Section 1400 does not authorize the case to be heard in a Delaware forum. SCOTUSblog explains that the case allow the Court to focus on forum shopping so extreme in patent ligitation that a single judge in  Marshall, Texas has been was assigned approximately one quarter of the nation’s patent cases in the last three years.

On Tuesday the Court will hear arguments in Lee v. United States. Lee analyzes whether a noncitizen defendant was prejudiced by inadequate legal advice when he rejected a plea offer notwithstanding strong evidence of guilt, and the plea would have resulted in mandatory and permanent deportation. The petitioner in the case, Jae Lee, is a Tennessee man from South Korea. Lee immigrated to the U.S. in 1982 and became a restaurateur. He was charged in 2009 with possession of ecstasy with intent to distribute. Lee’s attorney recommended that Lee plead guilty to receive a shorter sentence, and falsely told him that a guilty plea would not result in Lee’s permanent and mandatory deportation.  Lee sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate counsel. Although the government agreed that the attorney had given inadequate advice, the lower courts ruled that Lee could not show that he was prejudiced by that advice because evidence of his guilt was overwhelming. The ABA Journal discusses the legal question and relevant precedents in more depth.

On Wednesday the Court will hear two consolidated cases that arise from the 1984 murder of a District of Columbia woman: Turner v. United States and Overton v. United States. The cases ask whether the petitioners’ convictions must be set aside under Brady v. Maryland, which held that suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material to guilt or punishment, regardless of the prosecution’s good or bad faith. The petitioners are D.C. men who were convicted, based largely on testimony from alleged eyewitnesses. Decades later, it was revealed that prosecutors had not turned over multiple pieces of discovery that would have strengthened the defendants’ cases. The men sought unsuccessfully in lower courts to vacate their convictions.

Constitution Daily has more on the cases’ history.

Finally on Wednesday, the Court will hear arguments in Honeycutt v. United States, where the Court will analyze whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. The Honeycutt brothers, Tony and Terry, operated a hardware store in Brainerd, Tennessee. Tony owned the store with their father; Terry was a salaried sales employee. In less than three years, the store sold more than 15,000 bottles of a water purifying product called “Polar Pure.” The police told the family that the product’s iodine ingredient could be used to cook methamphetamine, but they kept selling it. The government indicted the brothers on conspiracy to distribute methamphetamine precursors, among other crimes. Tony pled guilty and accepted a forfeiture judgment. Terry went to trial, and was convicted of 11 counts. The district court declined to order forfeiture against Terry, on grounds that he had no ownership in the store, was salaried, and “did not stand to benefit personally from the illegal sales.” The ruling was reversed and remanded on appeal. The Court will decide whether the statute may empower a federal court to order a defendant to forfeit proceeds that he did not “obtain” under a theory of joint and several liability. The New York Law Journal takes a deeper look at the case and the issue of joint and several liability in forfeiture cases.

On Monday, the Court granted cert in two new cases – a bankruptcy case called U.S. Bank National Association v. Village at Lakeridge, and a securities case about the duty to disclose called Leidos, Inc. v. Indiana Public Retirement System. It also called for the views of the Solicitor General in Snyder v. Doe, which is about the application of the Ex Post Facto clause to sex offender registration. On Friday the Court will meet for Conference, and orders will be released next Monday.

This Day in Supreme Court History—March 27, 2013

On this day in 2013, the Supreme Court heard oral arguments in United States v. Windsor, a landmark case in the evolution of marriage equality rights.

Windsor was a challenge to a provision of the federal Defense of Marriage Act (DOMA) of 1996. The provision at issue stated that under federal law, “marriage” and “spouse” applied only to marriages between a man and a woman. The effect of this provision was to deny same-sex couples federal marriage benefits.

The New York couple at the center of the lawsuit, Edith Windsor and Thea Clara Spyer, wed in Canada in 2007. New York legally recognized their marriage. Spyer died in 2009, leaving her estate to Windsor. But since their marriage was not recognized under federal law, Windsor did not quality for a marital tax exemption and she had to pay $363,000 in federal taxes. Windsor filed suit, arguing that the provision of DOMA limiting marriage to heterosexual couples violated her due process and equal protection rights.

The Supreme Court ruled in Windsor’s favor. In his opinion for the Court, Justice Kennedy noted that DOMA’s provision ran up against federalism principles, “which allow states to largely chart their own course,” as well as equal protection concerns. The issue, he wrote, was one of “basic fairness and human dignity.” The effect of DOMA was to impose a “disadvantage, a separate status, and so a stigma” on same sex couples that denied them equal protection under the law.    

The Court held that same-sex couples are guaranteed federal benefits if they lived in a state that recognized same-sex marriage. The decision did not however, guarantee a federal right to same-sex marriage. This issue would not be decided until two years later, in 2015, when the Court decided Obergefell v. Hodges.

Week in Review – March 24, 2016

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.)

The Supreme Court heard oral arguments in six cases this week: Murr v. Wisconsin, Howell v. Howell, City of Los Angeles v. Mendez, Water Splash v. Menon, Microsoft Corp. v. Baker and Impression Products v. Lexmark International. Descriptions of the cases provided by ISCOTUSnow can be found here.

The Court also issued opinions on Tuesday and Wednesday. On Tuesday, the Court issued opinions for three cases: Manuel v. City of Joliet, SCA Hygiene Products Aktiebolag v. First Quality Baby Products LLC, and National Labor Relations Board v. Southwest General Inc. Manuel, involved a man who brought a civil rights action against police officers for his false arrest and prolonged detention after his arrest. Justice Kagan delivered the majority opinion in favor of Manuel, concluding that Fourth Amendment protections extend to pretrial detention. In SGA Hygiene Products, the Court examined whether unreasonable delay in litigation can bar a claim for patent infringement brought within the six-year statutory period of limitations. Justice Alito delivered the majority opinion, stating that unreasonable delay cannot bar such a claim. Finally, in National Labor Relations Board, the Court looked at the Federal Vacancies Reform Act of 1998 which determines who may fill a vacant office that requires presidential appointment and Senate confirmation in an acting capacity. Chief Justice Roberts delivered the majority opinion, holding that once the President has nominated someone to a position, that person may not serve in that job in an acting capacity. As a practical matter, this restricts the President’s ability to appoint acting officials while waiting for Senate confirmation.

On Wednesday, the Court issued opinions for three cases: Czyzewski v. Jevik Holding Corp., Star Athletica v. Varsity Brands, Inc., and Endrew F. v. Douglas County School District. In Czyzewski, Justice Breyer delivered the opinion on behalf of six justices (Justices Thomas and Alito dissented, holding that a bankruptcy court cannot authorize a settlement that provides for the distribution of assets in a way inconsistent with the priorities set by the Bankruptcy Code Czyzewski thus establishes that a corporation cannot pick and choose which creditors to pay by using settlement instead of going through the normal bankruptcy process.

Star Athletica examines the federal Copyright Act of 1976 and the standard that should be applied to determine if a feature of a design is copyrightable. Justice Thomas delivered the opinion of the Court, affirming the decision of the Sixth Circuit, stating: “An artistic feature of the design of a useful article is eligible for copyright protection if the feature can be perceived as a two- or three-dimensional work of art separate from the useful article and would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” Jeff Webb, founder of Varsity Brands, which makes the cheerleader uniforms at issue in the case, issued a statement following the decision. “We were honored to serve as advocates and fighters for the basic idea that designers everywhere can create excellent work and make investments in their future without fear of having it stolen or copied.”

Endrew F. analyzes the level of “free appropriate public education” guaranteed by the federal Individuals with Disabilities Education Act (IDEA). Endrew, an autistic student, was enrolled in a private school because his parents believed that the public school he attended could not adequately address his needs. The Court concluded that to satisfactorily provide a free appropriate public education, the school district must offer “individualized education programs” for students with disabilities that enable students to make “progress appropriate in light of the child’s circumstances.” Chief Justice Roberts delivering the majority opinion, stating:

“When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’”

Anya Kameyetz of NPR published an article about the decision, mentioning that Supreme Court nominee Neil Gorsuch, in similar cases, has consistently ruled in favor of school districts, stating: “Gorsuch’s opinions in eight out of 10 cases involving students of disabilities all tended toward limiting the responsibilities of school districts — for example, if they leave school of their own accord out of frustration. IDEA’s standard of a “free appropriate public education,” reads Gorsuch’s opinion in one of these cases, ‘is not an onerous one.’”

Throughout the week, the Senate Judiciary Committee has been conducting its confirmation hearing for Supreme Court nominee Judge Neil Gorsuch. ISCOTUSnow has provided daily updates on the hearings, the first three of which can be found here: day one, day two, and day three.

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.