The Week Ahead – April 3, 2017

As ISCOTUSnow noted earlier today, this is showdown week for the Gorsuch nomination. Since this morning’s post, there have been two big developments. First, as expected, the Senate Judiciary Committee voted in favor of confirming Gorsuch on a party-line vote. Second, as was less certain, enough Democrats announced their intention to vote against cloture, which is the procedure that ends a filibuster. As ABC News reports, four Democrats today (Chris Coons, Dianne Feinstein, Patrick Leahy, and Mark Warner) announced their intention to against cloture, bringing the total to the 41 necessary to maintain a filibuster. (Since then, Ben Cardin (MD) has also said that he wil vote against cloture.) In the past few days, three Democrats — Joe Donnelley (IN), Heidi Heitkamp (ND), and Joe Manchin (WV), all from states that Trump won — announced that they will vote for cloture.

The focus now shifts to the full Senate. Senate Majority Leader McConnell has announced that the Senate will vote on the Gorsuch nomination on Friday. And he has reiterated his threat to invoke the “nuclear option,” eliminating the supermajority needed to end debate and proceed to a merits vote for Supreme Court nominees. Making good on this threat would require the votes of 51 Senators, however, meaning that McConnell can afford only one defection from his caucus. It remains to be seen if he will be successful. Ted Barrett, in an opinion piece for CNN written before today’s events, explains that

“The Senate may be a week away from turning into the House. Senators from each party . . . worry that by getting rid of the 60-vote threshold to defeat a filibuster on the nomination, the Senate is one step away from turning into a mirror-image of the House — a chamber where bipartisanship isn’t needed to pass bills and whichever party is in the majority can govern with little or no input from the minority party.”

There has been much commentary about the wisdom, or lack thereof, of a filibuster by the Democrats (see our earlier post for some links), but today there is also some interesting commentary about how the Democrats got to this point. According to a New York Times op-ed by a former staffer to now-retired Senator Harry Reid, who served as both majority and minority leader for the Democrats, the Democratic Senators went into the confirmation hearing with an open mind but were offended and angered by Gorsuch’s demeanor and — more so — his refusal to answer even the most uncontroversial questions. The Victoria Bassetti of the Brennan Center makes a similar argument in more detail.

The Supreme Court has no oral arguments scheduled this week, but it issued orders and opinions today, Monday, April 3. In the first of two grants, Jesner v. Arab Bank, PLC, the Court will consider the extent to which the Alien Tort Claims Act imposes liability on corporations. (The defendant bank in Jesner is accused of helping to finance terrorist activity.) Ayestas v. Davis, the second case granted today, focuses on federal courts’ obligations to provide resources to habeas petitioners who need help developing their ineffective assistance of counsel claims.

In the first of two opinions issued today, Justice Sotomayor wrote for seven justices in McLane v. EEOC, ruling that appellate review of district court determinations whether to enforce or quash EEOC subpoenas is based on abuse of discretion, not de novo review. Justice Ginsburg concurred in part and dissented in part. And in Dean v. United States, Chief Justice Roberts wrote for a unanimous Court, holding that a district court judge may take into account mandatory sentences that must run consecutive to other sentences in exercising sentencing discretion.

Finally, Justice Sonia Sotomayor will speak at two events in upstate New York on Tuesday, April 4. First, she will speak at the Schacht Fine Arts Center on the Troy campus of the Sage Colleges in Troy, New York. The event is part of Centennial Celebration of the Sage Colleges, and will feature a question and answer discussion with Justice Sotomayor. Later on Tuesday, she will headline a speaking event at the University at Albany – State University of New York. She will be discussing her 2013 best-selling autobiography My Beloved World and the event will also include a question and answer discussion.


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