The Week Ahead – February 6, 2017

The Supreme Court is still in recess this week, but the nomination of Judge Neil Gorsuch means that the Court remains in the spotlight. Vice President Pence gave a speech to the conservative Federalist Society in Philadelphia last week, and according to CBS News, he stated that an attempt by the Democrats to filibuster the nomination would be “unwise.”  The Vice President noted that there has never been a successful filibuster of a United States Supreme Court Associate Justice nominee, and that Judge Gorsuch is willing to meet will all senators if they would like to. If there is a filibuster, however, President Trump has urged Senate Majority Leader Mitch McConnell to unleash the “nuclear” option. The nuclear option allows the nomination to move forward with a bare majority vote regardless of any filibuster, instead of the current 60-vote threshold to end a filibuster. For those interested in more information on the filibuster, the Washington Post’s “Fact Checker” explains some of the rules and history and takes issue with the language some Democrats have used in asserting that Judge Gorsuch must meet a 60-vote standard.

Scott Bomboy of Constitution Daily outlined the procedures for the next steps of Judge Gorsuch’s nomination. The Senate Judiciary Committee must authorize an investigation of Gorsuch, which includes a questionnaire for him to complete, an FBI investigation, and a rating of his qualifications issued by the ABA. After these are completed, a public Senate hearing will occur. After consideration by the Senate Judiciary Committee, his nomination will be sent to the Senate for a vote. (The nomination can move to the full Senate even if — as is highly unlikely here – the Committee votes against him.)

Linda Greenhouse of The New York Times recently discussed how the Supreme Court may respond to President Trump and evaluate any constitutionality debates that may arise from his actions. She argues that because Republican-controlled Congress appears unlikely to push back against Trump, the judiciary is now the only government branch “standing between the new administration and constitutional chaos,” and “going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.” Greenhouse notes that Chief Justice Roberts has in the past been deferential to broad claims of executive power related to national security, albeit sometimes in the minority. In particular, in  Boumediene v. Bush, the Supreme Court, in an opinion by Justice Kennedy, held that detainees at Guantanamo had the right to file habeas petitions. Chief Justice Roberts, however, joined what Greenhouse calls “a hyperbolic dissenting opinion by Justice Scalia that opened with ‘America is at war with radical Islamists’ …” And she notes that Roberts “also filed a dissenting opinion of his own, in which he asked rhetorically who had won the case. The answer, he said, was ‘certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.’”

In light of these concerns, Greenhouse urges the Senate Judiciary Committee to ask Judge Gorsuch about how he would have approached Boumediene.

Concerns about the role of the judiciary when confronted national security claims made by the executive were highlighted over the weekend when President Trump issued a series of tweets criticizing Judge Robart, the federal district judge who last week stayed Trump’s executive order on immigration. (That order is now on appeal in the Ninth Circuit and could well go to the Supreme Court next, possibly in the form of a request for a stay.) In one tweet, Trump said that he “cannot believe a judge would put our country in such peril. If something happens blame him and court system.” Numerous observers interpreted this and other tweets as attacks on an independent judiciary. And this too could play a role in the Gorsuch hearings: Professor Eric Posner argued in The New York Times that Judge Gorsuch must condemn those attacks or risk losing his support in the legal community.

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.


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