Weekly Roundup – February 24, 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.)

After observing the Presidents’ Day holiday on Monday, the Court heard oral arguments in two cases on Tuesday and one Wednesday. Before Tuesday’s arguments, however, Acting Solicitor General Noel Francisco presented the newly confirmed Attorney General, Jefferson Sessions, to the Court. Chief Justice Roberts wished Sessions well on behalf of the Court.  Sessions did not stay for the oral argument.

The Court started off Tuesday with Hernandez v. Mesa, a case in which a U.S. Border Patrol agent fatally shot a 15-year-old boy on Mexican territory. The case presents complicated issues about the extent to which constitutional rights are available to people who are not in and do not have a connection to the United States. As ABC News explained, Robert Hilliard, representing Sergio Hernández’s parents, argued that the case was an easy extraterritorial case for five reasons: “the conduct of the police officer happened inside the U.S.; it was a civilian domestic police officer; it was a civilian plaintiff, not an enemy combatant; it was one of the most ‘fundamental rights, the right to life’ and lastly; the government of Mexico supports the claim.” Nonetheless, the justices appeared very concerned about the broader implications of ruling in favor of the plaintiffs.

Also on Tuesday the Court heard arguments in McLane v. Equal Employment Opportunity Commission, which presented the question of whether the Ninth Circuit was correct to apply de novo review when it ruled that a district court had construed “relevance” too narrowly in reviewing a subpoena issued by the Equal Employment Opportunity Commission during its investigation of a sex discrimination charge. Charlotte Garden of SCOTUSblog analyzes the arguments presented in this fairly technical-sounding case — although one that could have significant implications for EEOC investigations in the future. Interestingly, neither the EEOC nor the employer defended the Ninth Circuit’s position, and the Supreme Court had to appoint a friend of the court to defend that judgment.

On Wednesday, the court heard arguments in Kindred Nursing Centers v. Clark, in which the Kentucky Supreme Court ruled against enforcing arbitration agreements that relatives of two nursing home residents with power of attorney signed on their behalf. Matthew Loughran of Bloomberg BNA reports that this decision “could have a much broader application to limit the use of powers of attorney in the state generally.” Loughran discusses how the Justices’ questions during oral arguments focused on the scope of the state court decision beyond just arbitration agreements. U.S. News & World Report notes that President Trump’s daughter, Ivanka Trump, attended arguments oral arguments in the Kindred case Wednesday. She attended as an invited guest as Justice Kennedy. CNN reports that Ivanka met the Justice at the inaugural lunch at the Capitol last month. During her visit to the Court, she sat in a VIP section for invited guests.

On Wednesday, the Trump administration withdrew guidance that the Obama administration had issued requiring schools that receive federal funding to allow transgender students to use the bathroom consistent with their gender identity. This Obama-era guidance is at issue in the case of Gloucester County School Board v. G.G., currently scheduled for oral argument on March 28. On Thursday, the Clerk’s Office asked the parties to submit letters to the Court by Wednesday explaining what, if any, effect this withdrawal has on the case. Even before that order, however, the Chicago Tribune reported that G.G.’s lawyers told the press that the Supreme Court should hear the case and decide the scope of federal protections for transgender students.

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 4

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.

The Minority Leader remains unpersuaded. When he appeared on “The View” talk show on Tuesday, Schumer explained that Gorsuch’s refusal to tell him whether a ban on Muslim immigrants would violate the Constitution gave him an “eerie feeling.” Although no other senators have reported eerie feelings when talking with Judge Gorsuch, other Democrats have expressed concern about his unwillingness to answer questions on issues of executive authority and separation of powers.

Senator Kelly Ayotte, the New Hampshire Republican who is serving as Gorsuch’s escort for his meetings with Senators, came to the judge’s defense. “The judge has ethical responsibilities that he cannot answer questions about cases that may potentially come before the court,” she explained in an interview with CNN. “I’ve been in 58 meetings with him. He’s been very forthcoming. He has answered questions.” She added that Schumer simply “asked him questions he knew he couldn’t answer.” It’s all something of a scripted performance, explains Senate Majority Leader Mitch McConnell: “Everyone knows you are going to ask your best question and they are not going to answer it.”

In Politico, Seung Min Kim assesses Gorsuch’s best chance for securing the support of some Democrats in the Senate, arguing that the judge should focus on Democratic senators who face an upcoming reelection in states that Trump won. He adds that Gorsuch’s “biggest liability remains Trump, whom Democrats will seize on during the confirmation fight.”

Gorsuch himself has resisted efforts to define and categorize his work as a judge. “I resist pigeon holes,” he said during his confirmation hearings for his appointment to the Tenth Circuit. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.” The Washington Post offers an in-depth profile of the judge that concludes that we should not be too quick with those pigeonholes: “Gorsuch himself is perhaps not so predictable. An examination of his development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist reveals that he is quite capable of surprise.” (The pitfall of pigeonholes was also the theme of an earlier New York Times article on Gorsuch’s views on gay rights.)

This Day in Supreme Court History—February 20, 2002

On this Day in 2002, the Supreme Court heard oral arguments in Zelman v. Simmons-Harris, one of the most significant Establishment Clause cases in recent years. The Court considered whether a state program that provides school vouchers to parents that can be used to pay for education at religious schools violates the First Amendment’s prohibition on government “establishing” religion.

Ohio established the Pilot Project Scholarship Program to provide educational choices to families with children who lived in the Cleveland City School District. Both the district court and  the Sixth Circuit Court of Appeals held that by effectively channeling state funds to religious schools, Ohio had violated the Establishment Clause .

At the Supreme Court, lawyers defending the voucher program insisted that the program was religiously neutral because the state selected voucher recipients based on income and place of residence, not religion. The parents, not the state, made the decision about whether the ultimate recipient of the voucher was a religious school or a non-sectarian school. U.S. Solicitor General Theodore Olson, who argued in support of Ohio’s position in the case, argued that because parents had a choice of sectarian and non-sectarian schools, a “reasonable observer” would not “believe that the government is putting its thumb in favor of religion on the scales here.”

Justice Stephen Breyer challenged this line of argument. Imagine you are a foreigner who comes to the United States and learns that billions of government dollars are going to the support of religious schools, Breyer asked one of the lawyers defending Ohio’s program. “Wouldn’t you then say the United States of America, like France or like England, the government of the United States endorses a religious education for young children by putting money up, massive amounts?”

The lawyer countered that the Ohio program allots more funding to parents whose children attend non-sectarian schools than those whose children attend religious schools, which he insisted showed that this program did not amount to governmental endorsement of a religion.

Justice Souter was also skeptical of Ohio’s arguments. He noted that 96 percent of the families who used the vouchers chose parochial schools, and asked whether that suggests “that there is perhaps something specious about this notion that it’s a matter of wide-open choice here.” Solicitor General Olson replied that the Court had previously ruled that parents’ “purely private choices” will not be “associated by a reasonable observer with a governmental decision.”

The lawyer representing the challengers to the voucher program pressed the following argument: “Millions of dollars of unrestricted public funds are transferred each year from the state treasury into the general coffers of sectarian, private schools, and that money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven. It is a given that if those funds are properly attributable to the state, the program violates the Establishment Clause.”

The audience erupted in laughter when Justice Stevens posed hypotheticals trying to locate where exactly the challengers’ lawyer would not find the Establishment Clause to have been violated. The lawyer said a voucher program in which one out of ten schools funded were sectarian would be a “borderline” case, to which Stevens responded: “Say there are a hundred: ninety-nine non-sectarian, and one sectarian… Give us something that isn’t borderline.”

On June 27, 2002, the Court ruled, in a 5-4 vote, that the voucher program did not violated the Establishment Clause. The majority reasoned that the program was enacted for the valid secular purpose of providing educational assistance to impoverished children in a failing public school system, and that the program offered private choice that did not advance religion. Justices Souter, Ginsburg, Stevens and Breyer dissented.

The Week Ahead – February 20, 2017

The February sitting of the Supreme Court will begin on Tuesday, February 21, as the Court will be observing President’s Day on Monday. Orders from Friday’s Conference are expected on Tuesday, and opinions may be handed down on Wednesay.

On Tuesday, the Court will hear arguments in Hernandez v. Mesa and McClane Company v. EEOC. Hernandez concerns the shooting death of Sergio Adrian Hernandez Guereca, a fifteen-year old Mexican national, and whether the border patrol agent who shot him on Mexican territory violated the Fourth Amendment protection against unjustified deadly force. (There are also other issues presented.) Orin Kerr at the Washington Post provides a pre-argument analysis of Hernandez. “One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad,” he writes. He notes that important questions of, for example “what kind of Internet surveillance is permitted hinges on the question.” Yet the case presents the Fourth Amendment question in a factual “setting that appears to implicate almost none of the real stakes of the answer.”

McClane, the second case being argued on Tuesday, considers EEOC subpoenas and whether or not circuit courts should review them de novo (without deference to the district court’s decision) or review them deferentially to the district court’s decision, as is the practice of all circuit courts except for the Ninth Circuit.

On Wednesday, the Court will hear arguments in Kindred Nursing Centers v. Clark. Kindred concerns the Federal Arbitration Act and whether it precludes a state supreme court from holding an arbitration agreement unenforceable based on the lower court’s skepticism of the benefit presented by pre-dispute arbitration agreements. Ronald Mann from SCOTUSBlog provides an argument preview. He also explains that although the Court has recently decided similar arbitration cases in favor of upholding arbitration agreements, this will be the first such case presented to the 8-member Court. Nonetheless, he suggests that the case is likely to come out the same way. Although many of these cases were decided 5-4, with Justice Scalia in the majority (and often as the author), the last such cases were not so close. Indeed, Mann notes that Justice Breyer “consumed a good bit of last year’s argument in DIRECTV[, Inc. v. Imburgia], musing about the problems that the justices face when lower courts intentionally flout unpopular lines of cases like the court’s arbitration cases.”

On Thursday, Justice Ginsburg will speak at the Linser Auditorium at The George Washington University to discuss her most recently published book, My Own Words, along with book contributors Mary Hartnett and Wendy W. Williams. My Own Words features a selection of her writings and speeches spanning her life and career, and is the first book that Ginsburg has published since her appointment to the Court in 1993.

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 3

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.

Remembering Justice Scalia. The late Justice Antonin Scalia died on February 13, 2016, just one year ago. Writing in Forbes, Evan Young, a Scalia clerk, remembers the justice and endorses his nominated replacement. “Neil Gorsuch is the perfect next Justice to occupy this special seat, just as Antonin Scalia was the perfect next occupant in 1986.”

Next Steps. We now have a date for the beginning of confirmation hearings before the Senate Judiciary Committee for Judge Gorsuch: March 20. “If the hearing goes smoothly, and the full Senate votes to confirm him soon afterward, Gorsuch could be on the court before the end of the court’s current term in June,” writes Lawrence Hurley of Reuters. In the Chicago Tribune, conservative commentator Marc A. Thiessen predicts that “at a bare minimum, Democrats will maintain a united front to delay Gorsuch’s nomination as long as they can.” This may lead Republicans to choose the “nuclear option” of getting rid of the filibuster for Supreme Court confirmation votes. “If Democrats try to block or even delay a vote, go ahead and push the nuclear button,” urges Thiessen.

Weekly Roundup – February 17, 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.)

The Supreme Court was not especially busy this week, with its only official event a Conference in Friday. Nonetheless, there are still a few news stories of note. Monday marked the first anniversary of Justice Antonin Scalia’s death. USA Today reported that Justice Scalia “made quite an impression on a first-year law student from Colorado named Neil Gorsuch,” noting that Judge Gorsuch was in attendance when Scalia gave the Oliver Wendell Holmes Jr. Lecture at Harvard Law School in 1989. During that event, Scalia discussed his philosophy on adhering to the Constitution and other laws as they were written, and said “[j]udges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.” USA Today notes that if he is confirmed, Judge Gorsuch will be the first Justice to have been influenced by Scalia while still in law school. Nonetheless, his influence has already been widely felt. Justice Elena Kagan has stated Scalia’s teachings “changed the way almost all judges, and so almost all lawyers, think and talk about the law,” and that “we’re all textualists now.”

Corinne Purtill, of Quartz wrote on Wednesday about Justice Ruth Bader Ginsburg’s February 6, 2017 speech at Stanford University.  Justice Ginsburg gave some advice that she finds to be useful at both work and in her life. The advice, she explained, “comes from my savvy mother-in-law, advice she gave me on my wedding day. ‘In every good marriage,’ she counseled, ‘it helps sometimes to be a little deaf.’ I have followed that advice assiduously, and not only at home through 56 years of a marital partnership nonpareil. I have employed it as well in every workplace, including the Supreme Court.” She explained that “when a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.” The Justice remarked that she has used this strategy while working on the Supreme Court, and stated that she and her colleagues on the Court make sure they maintain respect and friendship, adding “Collegiality is crucial to the success of our mission.” Video highlights of Justice Ginsburg’s remarks, along with a summary, can be found Stanford News. ISCOTUSnow discussed other coverage of the lecture on Monday.

The official confirmation process of Judge Neil Gorsuch has also begun this week. According to The Washington Times, Judge Gorsuch has delivered his questionnaire to the Senate. The questionnaire is the first step in the confirmation process, and reveals extensive detail of his career in law and justice. Judge Gorsuch reported that he has never had an opinion he wrote overturned by the Supreme Court, although one was vacated. The Washington Times article highlighted some of the cases in which Judge Gorsuch refused to give the executive branch free reign, noting that Democrats on the Judiciary Committee will undoubtedly want “a proactive show of independence.” The Washington Post announced on Thursday that his confirmation hearings will begin on March 20, 2017.

For more information on the nomination of Judge Gorsuch, check out ISCOTUSnow next week for “The Gorsuch Report: the Latest News on the Nomination Process” where we will update in more detail the latest news on his nomination.


Remembering Justice Scalia–One Year Later

Just over a year ago, the nation lost Justice Antonin Scalia, one of the most significant members of the Supreme Court in recent history. “Nino Scalia will go down in history as one of the most transformational Supreme Court justices of our nation,” Justice Kagan stated. Justice Breyer described him as a “legal titan.”

Antonin Scalia was born in 1936 to a college professor and a schoolteacher in Trenton, New Jersey. He received his bachelor’s degree in history from Georgetown in 1957, his law degree from Harvard in 1960. A talented student, Justice Scalia graduated at the top of his high school, undergraduate, and law school classes. After law school, he practiced as a commercial lawyer. Then, beginning in 1967, he taught law at the University of Virginia. In 1971, he went to work for the Nixon and Ford Administrations in a variety of positions; from 1974 to 1977, he served as the Assistant Attorney General for the Office of Legal Counsel. He returned to teaching law, this time at the University of Chicago, in 1977. In 1982, he was appointed to the United States Court of Appeals for the District of Columbia Circuit. In 1986, President Reagan nominated him to the Supreme Court, and the Senate confirmed him with a unanimous vote.

Scalia was a passionate and influential advocate of originalism—a theory of constitutional interpretation based on adherence to the public meaning of the text at the time of ratification. But he would on occasion soften some of the sharp edges of the theory. He called himself a “fainthearted originalist,” by which he meant that he sometimes accepted longstanding precedent even when it did not align with the original meaning of a constitutional provision. His most famous demonstration of his version of originalism came in his opinion for the Court in District of Columbia v. Heller (2008), where he concluded that the original meaning of the Second Amendment was to protect an individual’s right to have a gun in the home for purposes of self defense. He supported his conclusion with pages and pages of history from the Founding Era; Justice Stevens, writing in dissent, felt compelled to write his own originalist analysis, matching Scalia’s historical treatise with one of his own. In addition to his originalism, Justice Scalia was well known for his biting dissents and witty, colorful writing. For a Supreme Court justice, his prose were unusually memorable.

The death of a sitting Supreme Court Justice has become an increasingly rare event. Only one other justice (William Rehnquist) has passed away while still in office in the past half century. (Scott Boddery in the Washington Post considers reasons deaths of sitting justices have become so unusual.)

Scalia’s seat on the Court remains empty today, over a year after his death. Republicans in the Senate refused to hold hearings on President Obama’s nominee, Merrick Garland, claiming that Justice Scalia’s seat should not be filled until after the presidential election. It was an unprecedented, longshot strategy to try to avoid allowing a Democratic President to fill the conservative justices seat. It has appeared to work. The Republicans won the presidency and preserved their Senate majority, and the new President’s nominee to the Court, Neil Gorsuch, a judge whose commitment to originalism and conservative record put him in close alignment with Justice Scalia, is poised to fill the vacant seat.

The Week Ahead – February 13, 2017

The Court has no oral arguments scheduled for this week, but will have Conference on Friday.

Late on Thursday, the Ninth Circuit declined to issue a stay of the district court’s TRO of President Trump’s travel ban. It also set a schedule for full briefing. On Friday, the Ninth Circuit issued an order, prompted by at least one judge (presumably not one of the judges on the original panel) asking the parties to brief whether the court should rehear the motion for a stay en banc. Those papers are due later this week.

It remains to be seen whether the Court will weigh in on the travel ban, as the Trump administration has sent mixed signals on whether it will seek review. The Washington Post reports that Chief of Staff Reince Preibus said Friday night that the administration is considering an appeal to the Court. This came minutes after another official said the administration would not seek certiorari. The Post speculates that the Administration might ask the Court for immediate intervention.

The New York Times reports on Trump’s options, which include two roads to the Supreme Court: a conventional petition for review following the Ninth Circuit’s full review of the appeal or an emergency application asking the Court to stay the trial court’s ruling. If he does the latter, the Court could act within days. Times reports  that the Justices would not hear arguments, but would “issue a very brief order announcing the outcome with little or no legal reasoning.” The case has become particularly tangled procedurally, in part as a result of the Administration’s insistence on an appeal. An interesting and quite critical look at the Ninth Circuit’s actions so far can be found here.

In an unusual confluence of popular culture and the Supreme Court, an upcoming case was highlighted at the Grammy Awards on Sunday night. Actress and transgender activist Laverne Cox, who appears on the Netflix show, Orange is the New Black, introduced Metallica and Lady Gaga. During her introduction, Cox said: “Everyone, please Google ‘Gavin Grimm.’ He’s going to the Supreme Court in March. Hashtag stand with Gavin.” Gavin Grimm is the teenage boy whose rights are at issue in Gloucester County School Board v. G.G., a Supreme Court case scheduled to be argued at the end of March. As the Washington Post explains, the case began when Grimm and his parents sued to require the school district to let him use the boys’ restroom. The district court and the Fourth Circuit both ruled in Grimm’s favor, but the Supreme Court stayed those orders pending its review. The litigation implicates an Obama Administration interpretation of federal anti-discrimination law, and LGBTQ activists are now lobbying the Trump Administration not to backtrack.

Check out ISCOTUSnow this Wednesday for “The Gorsuch Report: The Latest News on the Nomination Process” where we will update the latest news on Judge Gorsuch’s nomination.

Weekly Roundup – February 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, while the Supreme Court was in recess, Justice Ginsburg spoke at Stanford University, delivering the 2017 Rathbun Lecture on a Meaningful Life. Ginsburg addressed topics including the importance of collegiality at the Court, her desire to change the Electoral College and her criticism of the death penalty, and what it means to lead a meaningful life. “I tell the law students I address now and then, if you’re going to be a lawyer and just practice your profession, well, you have a skill, so you’re very much like a plumber. If you want to be a true professional, you will do something outside yourself,” Ginsburg stated. “Something to repair tears in your community. Something to make life a little better for people less fortunate than you. That’s what I think a meaningful life is – living not for oneself, but for one’s community.”

On Tuesday, a three-judge panel from United States Ninth Circuit Court of Appeals heard arguments from attorneys for the state of Washington and the U.S. Department of Justice about President Trump’s Executive Order mandating a travel ban affecting seven Muslim-majority countries and refugees. The parties argued over whether a federal judge’s temporary restraining order precluding enforcement of the order, should be stayed. On Thursday, the Ninth Circuit issued an opinion refusing to stay the TRO. It did not reach all of the issues presented in the case, however, and it set a briefing schedule for fuller consideration.

Before the Ninth ruled, Adam Liptak of the New York Times argued that the issue will likely end up before the Supreme Court, but the decision from the Ninth Circuit might have the ultimate impact. He explained, “[n]o matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.” As of this writing, less than 24 hours after the Ninth Circuit decision, the federal government has not asked for Supreme Court intervention, and there are reports that the administration is considering rewriting the Executive Order.

The audio from the Ninth Circuit hearing was streamed live on Youtube and on CNN and MSNBC, with more than 137,000 people listening to the Youtube broadcast. Timothy McLaughlin from Reuters reports that around 2.6 million people tuned into the broadcast either online or on a news network. The hearings were conducted across a conference call, meaning only the audio could be broadcast; McLaughlin writes, “the lack of visuals did not scare away those interested – and even led some to liken the experience to huddling around a radio in the pre-TV era.”

That President Trump has been vocal in his dissatisfaction with the court rulings on his Order and has been disparaging of the judges and courts is affecting the confirmation process for Supreme Court nominee Judge Neil Gorsuch. In a meeting with Sen. Richard Blumenthal (D-CT) on Wednesday, Judge Gorsuch reportedly stated that Trump’s recent criticism of the judiciary, stemming from the stay on his executive order, was “demoralizing and disheartening.” The White House, however, has denied that these statements referred directly to the President, and Judge Gorsuch has not spoken publicly.

Julie Hirschfeld Davis of the New York Times argues that Gorsuch’s comments serve to emphasize the importance of the peculiar tension between Trump and the judiciary, writing, “The spectacle of a Supreme Court nominee breaking so starkly with the president who named him underscored the unusual nature of Mr. Trump’s public feud with the judiciary.” She goes on to say that “Mr. Trump’s rhetorical battle with the judiciary may also end up harming his cause in a case that may end up before the Supreme Court, by potentially stiffening the resolve of judges who feel their independence is under attack.” On the other hand, Rick Hanson at the Electoral Law Blog argues that Gorsuch’s statements were more of a strategic move made to secure his confirmation.

Finally, in an op-ed for the Washington Post, Jason Murray argues that liberals should resist the impulse to reject Gorsuch because he has “a fierce commitment to the rule of law”, is “remarkably similar. . .to Supreme Court Justice Elena Kagan,” and that “[t]his zeal for the rule of law gives. . . every confidence that Gorsuch, like Kagan, will stand firm against any effort by the Trump administration to abuse executive power.”

For more on the Gorsuch nomination, check out ISCOTUSnow’s Gorsuch Report on Wednesdays.

The Gorsuch Report—Week 2

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.”

In an article posted on Politico, Democratic Senator Chuck Schumer laid the groundwork for challenge to Gorsuch. The Senate is “doing its job by critically evaluating” Gorsuch, he explains, emphasizing the distinction between the Senate supporting a judge for a federal bench position, and supporting a judge for a Supreme Court bench position.

Feinstein and others have noted Gorsuch’s young age: at 49-years-old, Gorsuch would be the youngest member of the Court by seven years (Justice Kagan, 56, is the next youngest). Since 1900, only 12 justices have been nominated at a younger age than Gorsuch. Current justice, Clarence Thomas, was nominated by George H.W. Bush in 1991, at the age of 43.

Another common topic of commentary is how Gorsuch compares to the late Justice Scalia, whose seat he would take if confirmed. The Huffington Post breaks down Gorsuch’s stance on a variety of constitutional issues, concluding Gorsuch is a “Scalia-in-waiting.” Adam Liptak of the New York Times explains that the most notable difference between the two is that Gorsuch’s “tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding.”

On this blog, Professor Christopher Schmidt discusses  the particular value of the Supreme Court confirmation process during times like these when the value of the legal process and the courts are under challenge.