All posts by Chris Schmidt

This Day in Supreme Court History—April 26, 1978

On this day in 1978, the Supreme Court decided First National Bank of Boston v. Bellotti, a seminal case involving corporate speech rights.

In a 5-4 ruling, the Court struck down a Massachusetts law that prohibited corporations from spending money to influence the outcome of referenda, unless the referenda issue “materially affected” them.

Justice Lewis Powell Jr. wrote the majority opinion. The Court had repeatedly upheld the speech rights of media outlets and the right of corporations to advertise, Powell noted. These First Amendment decisions were based not on corporate business interests, but on a concern for “the preservation of free and uninhibited dissemination of information and ideas.” By denying corporations the ability to spend money to advance their views on issues that cannot be “proved to affect adversely their property or business interest,” the Massachusetts law deprives the public of their views on issues of general public interest. Massachusetts failed to identify an interest that was important enough to justify the restriction of public access to ideas and information, Powell wrote. “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”

In a footnote to his opinion, Powell noted that the Court’s ruling “implies no comparable right in the quite different context of participation in a political campaign for election to public office.” The Court would later recognize the right for corporations to spend their money in political campaigns in the controversial 2010 Citizens United case.

Chief Justice Burger and Justices Blackmun, Stewart, and Stevens joined Justice Powell’s opinion.

Justice White wrote a dissent in which Justices Brennan and Marshall joined. The First Amendment does not forbid the state from interfering with “managerial decisions of this kind,” wrote Justice White. “Government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena.” Because of their wealth, White explained, corporations can “acquire an unfair advantage in the political process.” He noted that the Court’s holding invalidated a longstanding statute and brought into question similar statutes in 30 other states as well as federal law.
Justice Rehnquist filed a separate dissent in which he argued a corporation does not necessarily need the right of political expression to carry out its functions, and the state law does not violate corporations’ Fourteenth Amendment protections. “Court observers were startled by the view of Justice Rehnquist, almost universally regarded as the most conservative member of the Burger court, on an issue with such powerful ideological consequences” the New York Times reported.  

This Day in Supreme Court History—April 22, 2014

On this day in 2014 the Supreme Court announced its opinion in Schuette v. Coalition to Defend Affirmative Action.

The case involved a 2006 amendment to the Michigan constitution, approved by a statewide referendum, that prohibited “all sex- and race-based preferences” in public education, employment, and contracting. The referendum was organized in response to Grutter v. Bollinger, the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s use of affirmative action. Following passage of the amendment, an alliance of progressive interest groups—the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary—challenged the amendment in court, claiming that it violated the Equal Protection Clause of the Fourteenth Amendment.

The Court denied the challengers’ claim. Six justices agreed that Michigan’s amendment did not run afoul of the U.S. Constitution, although they divided on their reasoning. Writing the opinion of the Court, Justice Kennedy insisted that the case was not about the constitutionality of using race as a factor in determining admissions, but whether states can choose to prohibit race preferences. This issue should be determined by the voters, Kennedy insisted, and nothing in the Constitution prevented them from concluding that government use of race classifications could “perpetuate the same racism such policies were meant to alleviate.”

The case produced several concurring opinions. Justice Scalia made clear his belief that the Equal Protection Clause not only did not prevent Michigan from adopting this policy, but that it required them to do so. Justice Breyer, who unlike the other justices in the majority had been a consistent defender of the constitutionality of affirmative action, wrote his own concurrence, emphasizing that regardless of one’s view on affirmative action, this was a matter that Michigan’s voters should be allowed to decide for themselves.

Justices Sotomayor and Ginsburg dissented. (Justice Kagan had worked on this case when she was Solicitor General and recused herself.) Justice Sotomayor wrote the dissenting opinion on behalf of herself and Justice Ginsburg, and, for the first time in her five years on the Supreme Court, she chose to read her dissent from the bench. In previous postings on this blog, I analyzed in some detail Sotomayor’s first oral dissent. Most of the remainder of this post draws from from those previous posts (available in full here and here):

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

 

Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position….

According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She concluded her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Chief Justice Roberts wrote a short concurrence to take issue with Justice Sotomayor’s effort to frame the case as about the constitutionality of affirmative action rather than about deference to the decision making of Michigan’s voters. He wrote: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

This Day in Supreme Court History—April 12, 1937

On this day in 1937, the Supreme Court handed down NLRB v. Jones & Laughlin Steel, a cornerstone of what became known as the “Constitutional Revolution of 1937.”

In National Labor Relations Board v. Jones & Laughlin Steel Corporation, ten former workers of Jones & Laughlin Steel brought a suit against the company, asserting that they were illegally fired after they attempted to unionize and join the Steel Workers Organizing Committee. The recently created National Labor Relations Board ordered Jones & Laughlin Steel to rehire the employees and compensate them for any back pay owed them.

The law that created the NLRB, the National Labor Relations Act of 1935, also known as the Wagner Act, was a critical component of President Franklin D. Roosevelt’s New Deal program of legislative reforms. An unprecedented attempt to address the unequal bargaining power dynamic between employers and employees, the Wagner Act prohibited employers from punishing employees for organizing or joining a union and required them to engage in collective bargaining with unionized workers.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. In challenging the law, Jones & Laughlin argued that its provisions regulating the bargaining relationship between employees and employers went beyond Congress’s commerce power.

After a string of controversial decisions striking down New Deal legislation, the Supreme Court changed course. In a 5-4 decision, the Supreme Court upheld the bargaining provisions of the Wagner Act. Chief Justice Charles Evans Hughes delivered the opinion of the Court, arguing that the commerce power extended to regulations designed to prevent a potential strike at Jones & Laughlin, since a work stoppage would have an “immediate, direct, and paralyzing effect upon interstate commerce.” “Collective bargaining is often an essential condition of industrial peace,” Hughes asserted, and a “refusal to confer and negotiate has been one of the most prolific causes of strife.”

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.

Should Democrats Filibuster the Gorsuch Nomination? Pro & Con

Here are the arguments for why Senate Democrats should filibuster:

  1. Garland. They need to protest what Republicans did to Judge Garland’s nomination last year. Democrats need to take extraordinary action to make it clear the extreme wrong of the Republican refusal to hold hearings.
  2. Gorsuch. Judge Gorsuch will be such a conservative justice that Democrats need to do all they can to try to stop his nomination.
  3. The Base. The progressive base and liberal pressure groups are energized and are demanding that Democratic senators do all they can to stop the nomination. Even if a filibuster is unlikely to prevent Gorsuch from taking his seat, it could be seen as a partial victory and might further energize the base for future battles.
  4. Long Game. The most likely consequence of a filibuster—i.e., the “nuclear option” of a Senate rules change that eliminates the filibuster for Supreme Court nominations—is not as bad as it sounds. A straight majority vote process might even allow a future Democratic-controlled Senate to get a more liberal justice onto the Court.

And here are the arguments for why Senate Democrats should not filibuster:

  1. Futility. The Republicans have the votes to change the rules, eliminate the filibuster, and put Gorsuch on the Court. Why not focus on battles that can be won?
  2. The Next Justice. Gorsuch is conservative but widely respected and clearly qualified. And he is taking the seat that had been occupied by the conservative Justice Scalia. Why not preserve the filibuster for a future court battle in which the nominee might be more problematic (less qualified and/or more extreme) and/or the current ideological balance of the Court will be at stake?

This Day in Supreme Court History—April 3, 1962

On this day in 1962, Engel v. Vitale, a seminal religious liberty case, was argued at the Supreme Court.

In 1951, the Board of Regents for the State of New York authorized a prayer for recitation at the start of each school day. The prayer read: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.” Students were allowed to opt out of participating.

Five parents of school children—two Jews, an agnostic, a Unitarian, and an Ethical Culturalist—sued the head of the board of education in New Hyde Park, New York, arguing that the prayer violated the First Amendment. The lead plaintiff was Steven Engel, one of the Jewish parents.

Arguing on behalf of the plaintiffs at the Supreme Court, attorney William Butler insisted the prayer doubly violated both the religious liberty provisions of the First Amendment. It violated the Establishment Clause, because the prayer expressed a preference for certain religious beliefs. And it violated the Free Exercise Clause, because it coerced children to participate in a religious proceeding.

Butler relied in particular on Justice Felix Frankfurter’s concurrence in McCollum v. Board of Education, a seminal 1948 Establishment Clause case. The lawyer directly addressed Frankfurter, who was still on the bench when the Court heard McCollum, noting that Engel’s claim relied heavily on the Justice’s “brilliant dissertation” in the McCollum decision in which he wrote, “the law of imitation operates and non-conformity is not an outstanding characteristic of children.”

“So far as I’m concerned, you may assume I remember it,” the Justice responded, eliciting laughter from the audience.

“Would the little child or would Johnny leave the classroom or would the parent be expected to ask the school system to excuse his child or who may be singled out as a non-conformist?” Butler asked. “And I must adopt Mr. Justice Frankfurter’s thesis in McCollum that the law of imitation applies and little children want to be with other little children.”

Butler explained that most of his five clients were religious and not opposed to prayer, but that it should not be incorporated into a public school system. Such incorporation is “the beginning of the end of religious freedom,” he said.

Justice William O. Douglas noted that when the justices enter the Supreme Court courtroom, there is an announcement, “God save the United States.” “Is that case on its way here?” the Justice asked Butler. “If it is, I’m glad I’m not bringing it,” Butler replied.

Butler also borrowed from language in Chief Justice Earl Warren’s opinion in Brown v. Board of Education, where Warren wrote that “to separate children from one another solely because of their color may leave an indelible mark upon that child for the rest of his life.” Butler argued religious separation would also be an “unfair separation” which could leave an indelible mark on a child’s mind.

To his opponents’ argument that his clients were a minority trying to impose its views on the majority, Butler explained: “Our answer to that is simple. We say that the Constitution, the very purpose of the Constitution, is to protect the minority against the majority. It’s to protect the weak against the strong in matters of keeping separate forever the functions of the civil and the religious.”

To Justice Potter Stewart observation that the prayer did not specifically address a Christian God, Butler replied that the Board of Regents’ decision about the prayer referred the God as “him,” and Judaism does not necessarily believe in a male god. “It believes that God is coming,” he said. “Now what form that God is going to take may be a different matter.” Butler also argued the prayer excludes Orthodox Jews because such Jews pray only in synagogues, only with yamakas on, only in Hebrew and some pray only facing east.

Stewart also asked Butler whether he objects to the recitation of the National Anthem with the words “Under God.” Butler said he does not object to the recitation of the anthem in schools because it is essentially a “political utterance” and not a religious one.    

Representing the Board of Education, attorney Bertram Daiker said the district received only one request since 1958 for a student to be excused from participation in the prayer, and no requests to be excused from a classroom. The Declaration of Independence has four references to “the Creator,” and the Supreme Court had “said many times that ‘we are essentially a religious people,’” he said.

Chief Justice Warren challenged Daiker by asking whether he would approve of the Court’s requiring every litigant before it to deliver the prayer in question. Daiker said he would not approve because such a compulsion would be unconstitutional. Justice Hugo Black pressed him on whether the children’s enrollment and attendance were compulsory. Daiker countered that most of the district’s parents know their children can opt out of the prayer.

Justice Warren stated that Butler’s clients object to the recitation of a prayer in schools “where they will be indoctrinated with the prayer as a matter of training and where they will be held up to contempt or ridicule if they or their parents should want them to be excused and pointed out as being different from the rest of the children.” Daiker responded, stating the prayer is not the teaching of religion, but merely “acknowledging publicly that we have a god.”

Also defending the law at the High Court was Porter Chandler, who represented sixteen parents who supported the prayer. He argued his clients “feel very strongly that it is a deprivation of their children’s right to a share in our national heritage and that it is a compulsory rewriting of our history in the fashion of George Orwell’s 1984 to do what these petitioners are now seeking to do.”  Chandler also stated that states in at least half of country included daily prayers, Bible readings, or hymns in their public schools.

On June 25, 1962, the Court ruled 6-1 in favor of Engel, holding that the state-mandated prayer, despite its nondenominational character and the possibility of a student opt-out, violated the First Amendment. Justices White and Frankfurter did not take part in the decision; Justice Stewart dissented.

 

The Gorsuch Report—Going Nuclear?

It’s showdown week for the Gorsuch nomination. Today, the Senate Judiciary Committee debates and votes on the nominee. Democratic committee members scored a minor victory after the hearings had concluded when they were able to head off the effort of Republican committee members to have a quick vote on Gorsuch. The Democrats asked for more time so they could receive and review written responses to questions posed by the senators. The Committee vote on Gorsuch today is expected to fall along party lines (11 Republicans in support; 9 Democrats opposed).

Then the real fireworks are expected when the nomination comes to the full Senate.

Senate Majority Leader Mitch McConnell has announced that the Senate will vote on the Gorsuch nomination by the end of the week, in advance of Congress’s two-week recess. The first step to get to a Friday vote will be for McConnell to move for a full-Senate vote for cloture (i.e., to end debate and bring the nomination to a Senate vote). Under current rules, invoking cloture for a Supreme Court nominee requires 60 votes.

Some Democrats, led by Senate minority leader Charles Schumer, have vowed to filibuster to prevent a vote. To pull this off, Democrats need to secure at least 40 of their 48 senators to vote against moving the nomination to a full Senate vote.

Do the Democrats have the votes? It’s not clear. So far, three Senate Democrats—Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), and Joe Donnelly (Indiana)—have said they would vote for Gorsuch. (Each represents a state Trump won in November and each is up for re-election next year.) Thirty-six have said they support a filibuster. It’s going to be a close call.

If the Democrats do successfully filibuster the Gorsuch vote, McConnell has made clear that he will use the so-called “nuclear option,” meaning that Republicans will change the Senate rules so that filibusters are no longer allowed for Supreme Court nomination votes. (In 2013, a Democratic-controlled Senate did away with filibusters for lower court nominees.)

What are the Democrats hoping to achieve? Some have suggested that the collapse of the Republican effort to rewrite the Affordable Care Act has emboldened the Democrats, and their leaders are trying to take advantage of the moment to show their unity and strength. Liberal pressure groups are demanding that Democratic senators take a stand. Perhaps some even believe they can win this battle. Senator Schumer has said that he believes Republicans can’t get the sixty votes required for cloture.

Is this a wise strategy for the Democrats? Harvard’s Cass R. Sunstein thinks not. “Two wrongs do not make a right,” he writes in his BloombergView column. “The system for confirming Supreme Court justices is badly broken, and if you insist that it’s all about power, it will stay that way.” Sunstein’s colleague Noah Feldman finds more strategic grounds for the same conclusion: “Neil Gorsuch is no progressive. But liberals could do worse—much worse. And it’s the Senate Democrats’ job to do what they can to reduce the risk of an unqualified, radical Trump nominee in the future.” In the Daily Beast Eric Segall also argues against the filibuster; Rick Hasen does the same in his Election Law Blog. For a sampling of the case for the filibuster, see Joshua Holland writing in the Nation and Bill Scher in Politico.

 

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 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 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.