All posts by Chris Schmidt

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.

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.

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 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.

This Day in Supreme Court History—February 8, 1794

On this day in 1794, Supreme Court arguments opened in the case of Glass v. The Sloop Betsey. A French privateer, Pierre Arcade Johannene, had captured a Swedish-owned vessel—The Betsey—and delivered it to a Baltimore port. Johannene was probably acting under the presumption that the Betsey was a British vessel. France and Britain were at war at the time, and French privateers often brought captured British ships to American ports to determine what to do with the cargo (this despite President Washington’s declaration that America would remain neutral in the conflict).

Upon arriving in Baltimore, there was a dispute over what to do with the cargo on the Betsey. The vessel was from Sweden—another neutral party in the conflict between France and Britain—and the cargo on board belonged to both Swedes and Americans. One American sued in the U.S. District Court in Maryland to recover his share of the cargo, but the court held that it lacked jurisdiction to hear an admiralty dispute. On appeal, the circuit court agreed, leading Glass to the Supreme Court.

After four days of arguments at the Court, Chief Justice John Jay delivered the Court’s unanimous decision on February 19, 1794. The Court held that the lower federal courts had jurisdiction to hear admiralty cases and remanded Glass back to the District Court.

Although the legal question at issue in Glass was a relatively technical jurisdictional question, Jay made clear in his opinion for the Court that he saw at stake much larger questions involving the sovereignty of the new nation. Johannene apparently took the Betsey to Baltimore under the presumption that since no American court had the jurisdiction to decide ownership of the cargo, France would establish a court in the United States to adjudicate these kinds of admiralty disputes. Jay was having none of this. “[N]o foreign power can of right institute or erect any court of judicature of any kind within the jurisdiction of the United States” without express permission. The new courts of the new nation would deal with legal disputes on its shores.

In Praise of the Supreme Court Confirmation Process

It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)

Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.

When John Roberts sat before the Senate Judiciary Committee in September 2005, he gave an opening statement in which he explained that after having served as a lawyer in the Justice Department, he entered private practice, where he argued cases before the Supreme Court. It was not until this point in his career that “I fully appreciated the importance of the Supreme Court in our constitutional system,” he noted.

 Here was the United States, the most powerful entity in the world, aligned against my client, and yet all I had to do was convince the Court that I was right on the law, and the Government was wrong, and all that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a Government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law, any rights are meaningless.

This is indeed a remarkable thing. We are fortunate that most of the time we can take the rule of law for granted. But there are times when this basic, essential principle is threatened, and at times like these we need find opportunities to stop and reflect upon its importance. The upcoming confirmation hearings for Judge Gorsuch will give us this opportunity.



This Day in Supreme Court History—February 1, 1790

On February 1, 1790, U.S. Supreme Court sat for the first time. They met on the second floor of the Merchants Exchange Building in New York City, the nation’s capital at the time.

In addition to Chief Justice John Jay, associate justices William Cushing of Massachusetts and James Wilson of Pennsylvania were present. Missing from the first sitting of the Court were Justices John Rutledge of South Carolina, John Blair of Virginia, and Robert Harrison of Maryland.

The scene at the Court’s scheduled opening on February 1 was “uncommonly crowded,” according to one press account. Among those in attendance were New York City’s mayor, the federal judge for the district of New York, the Recorder of New York, and the Marshal of the district of New York.

The Court dedicated its first sessions to organizational proceedings. The justices appointed a court crier and a clerk, and admitted lawyers to the bar. The Court heard no cases that day. In fact, it heard no cases during its entire first term. The next year, the Court reconvened in Philadelphia, the new national capital.

This Day In Supreme Court History—January 13, 1988

On this day in 1988, the Court decided Hazelwood School District v. Cathy Kuhlmeier, holding that students do not have a First Amendment right to publish a school newspaper free from school administrator editorial oversight.

The Spectrum, the school newspaper of Hazelwood East High School in Missouri, was written and edited by students. In May 1983, the school principal ordered the editors to withhold articles dealing with divorce and teenage pregnancy that he found inappropriate. Cathy Kuhlmeier and two other students sued the school district. The district court held that the school district had not violated the First Amendment. The Eighth Circuit Court of Appeals reversed.

In its 5 to 3 decision, the Supreme Court held that the students’ First Amendment rights were not violated. The majority opinion, written by Justice Byron White, gave the following reasons for the decision. First, the student newspaper was not a public forum. The school administrators had never demonstrated an intent to open it to “indiscriminate use” by student reporters and editors, or by the student body. Rather, they used the paper “as a supervised learning experience for journalism students.” Thus, school officials could regulate the contents of the paper “in any reasonable manner.” Second, educators do not violate the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities when “their actions are reasonably related to legitimate pedagogical concerns.” And third, in this case, the principal’s editorial deletions were reasonable.

In dissent, Justice Brennan stated that the principal had “violated the First Amendment’s prohibitions against censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose.” He wondered whether the reasoning of the majority’s opinion meant that administrators could censor a student who says “socialism is good” in a political science class or a “gossip who sits in the student commons swapping stories of sexual escapade.” He warned that recognizing the educator’s “undeniable, and undeniably vital, mandate to inculcate moral and political values” not be understood as “a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of all but the official position.”