Summarizing (others’) unsolicited advice on Judge Gorsuch, Part I

So it’s been two days since Judge Neil Gorsuch was appointed to inherit Mitch McConnell’s stolen property, i.e., the ninth seat on the Supreme Court. Apparently, I was not alone in offering unsolicited strategic advice to Senate Democrats.  Here are some examples from more visible analysts, with paraphrases of their advice followed by my assessments. (I’ve broken the original post into smaller, more digestible chunks.)

Steven Pearlstein (Washington Monthly): Obstructing Gorsuch is bad because it undercuts the Democrats’ image as the party that actually cares about governance, as well the party’s claim that the Supreme Court needs nine justices to function effectively. It also will induce wavering Republicans to side with their party in the face of partisan obstruction, instead of defecting from Team Trump on issues where Democrats might be able to garner their support. And even if a blockage forced Gorsuch’s withdrawal, the result would be a nominee whom Democrats would like much less. Rather than obstruct, Democrats should condition their shelving the filibuster on the adoption of a resolution that would bar Trump from filling any vacancies that might occur during the last year of his term. Republicans could demonstrate that their justification for blocking Merrick Garland wasn’t spurious and self-serving, and Democrats could still voice their opposition to Gorsuch by voting against the nomination.

My assessment:

  1. The argument about preserving the brand has some merit, but the party has a greater imperative right now when it comes to brand association. The Democratic Party has the image of a group that brings textbooks to a gunfight and can’t figure out why the folks with the guns keep winning. The party base is demanding payback for what happened to Garland, and given that priority, it will not treat full-tilt opposition to Gorsuch as indicative of the party’s lack of interest in governance.
  2. Treating Gorsuch as business as usual will earn Senate Democrats approximately zero votes on Obamacare, environmental protection, or any other policy priority. Republican senators have more much to fear from primary challenges, especially given their popularity ratings relative to Trump’s, than they do from failing to extend an olive branch to their Democratic colleagues.
  3. As for the proposed alternative to the filibuster, why would the Senate of 2019 feel compelled to honor a resolution passed in 2017, especially if the Republican majority were to grow after the 2018 election? The Senate could simply pass a new resolution, and Democrats would have no leverage to stop it. And if Senate Democrats think that Mitch McConnell and Orrin Hatch behaved disreputably in stonewalling the Garland nomination, why would they trust them to uphold the proposed deal?

Garrett Epps (The Atlantic): He’s agnostic on whether Democrats should filibuster, but he does think their (and Republicans’) questioning during the hearings should center on Gorsuch’s commitment to democracy in the face of the Trump administration’s attacks on it. Topics to be featured would include due process protections for immigrants; protections for free speech and free press in times of crisis; restraints on executive power; and the dividing line between permissible voting regulations and voter suppression.

My assessment: Whether or not Democrats filibuster, they will not possess the power to prevent hearings. So why not devote the hearings to something meaningful, given the present climate? The lines of inquiry posed by Epps will provide greater insight into Gorsuch’s outlook than would the tired two-step over abortion,  where senators can’t ask directly about Roe  and nominees won’t answer forthrightly. (It’s not as if we don’t already know Gorsuch’s position on Roe.) They also allow for senators to move beyond the cliched and not-terribly-informative debates over judicial activism and judicial restraint. Most important, they enable a discussion that properly places legal questions in a political context, but without defining that context predominantly as partisan.



How Senate Democrats Should Treat Garland’s Seat

For the past week, public attention has been focused predominantly on President Trump’s attack on Obama administration policies, longstanding political norms, and all actors who have demonstrated a desire to push back against “alternative facts,” a term that will supplant “enhanced interrogation techniques” as the most obscene euphemism in 21st-century American politics. But on Tuesday evening, the Tweeter-in-Chief will be announcing an appointment that, in all likelihood, will outlast his administration: the prospective ninth justice on the Supreme Court. Given the stakes, as well as the circumstances that have caused the seat to remain vacant for nearly a year after Justice Antonin Scalia’s death, the strategy deployed by Senate Democrats will be scrutinized especially closely.

By most accounts, the nominee will be either Judge Neil Gorsuch, of the Tenth Circuit Court of Appeals, or Judge Thomas Hardiman of the Third Circuit. (The invaluable SCOTUSBlog has detailed analyses of Gorsuch and Hardiman, with respect to both their biographies and their track records on the bench.) Both are young (49 and 51, respectively), have solid conservative records, and are highly regarded by their peers. Gorsuch draws comparisons to Scalia because of their shared commitment to originalism and reputation for clear and vivid writing, while SCOTUSBlog’s Amy Howe expects Hardiman’s jurisprudence to resemble Justice Samuel Alito’s, as does a recent study attempting to estimate the “Scalia-ness” of potential Trump nominees. (That study estimated, based on three quantitative indicators measuring potential nominees’ similarity to Scalia in interpretive methodology and propensity to write separately, that both Gorsuch and the Eleventh Circuit’s William Pryor more closely resemble Scalia than does Hardiman.) Competing analyses, however, place Hardiman in between Justice Anthony Kennedy and Chief Justice John Roberts with respect to ideology.

These nominees are about as good as progressives could expect a Republican president to propose, given the presence of a Republican-majority Senate. Under normal circumstances, either nominee would be confirmed with minimal delay and half-hearted opposition. But under normal circumstances, there would be no vacancy for Trump to fill.

So how should Senate Democrats respond? Treating the nomination as business as usual would demonstrate that violating longstanding norms concerning Supreme Court nominations has no political consequences, and thus would legitimize the Republican obstruction of 2016. Moreover, it would demoralize the party’s base, which is spoiling for any opportunity to do unto Republicans what they had done to Obama over the previous six years. But successful obstruction of Gorsuch or Hardiman hardly guarantees that the next choice will be more acceptable, and unless you can credibly commit to obstruction of indefinite length, the Senate will probably end up confirming someone worse for you than the original nominee. (If you can make this commitment but fear the political repercussions, think about what constitutional law would have been had Robert Bork been seated instead of Anthony Kennedy.) Whichever strategic choice Senate Democrats make should keep the following principles in mind:

  • Dealing in good faith will get you nowhere. In this climate of hardened partisan polarization, one should not expect that cooperation will be reciprocated. There is no formal mechanism by which any bargain struck between the parties’ leaders could be maintained, and the threat of primary challengers, especially on the Republican side, offers a strong deterrent to compromise.
  • Don’t fear the nuclear option. According to CNN,

    Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say.

    Democrats privately discussed their tactics during a closed-door retreat in West Virginia last week. And a number of Democrats are trying to persuade liberal firebrands to essentially let Republicans confirm Trump’s pick after a vigorous confirmation process — since Trump is likely to name a conservative to replace the late conservative Justice Antonin Scalia.

    The reason for the tactic: Republicans are considering gutting the filibuster for Supreme Court nominees if Democrats stay largely united and block Trump’s first pick. By employing the so-called “nuclear option,” Senate Majority Leader Mitch McConnell could move to reduce the threshold for clearing a filibuster from 60 votes to 51 votes.

    The problem with this approach is that the Senate majority will eliminate the filibuster as soon as its deployment sufficiently frustrates their goals. Failure to obstruct the first nominee simply means that the filibuster will be eliminated for the next nominee for whom obstruction is threatened. Yes, there are some Republican senators who, out of commitment to the institution or fear of someday being in the minority, advocate the preservation of the filibuster. Whether their advocacy will persist in the face of relentless attack from the base, and especially the portion of the base that cares deeply about the Supreme Court, is an open question. Democrats should not assume that institutional loyalty will prevail over the need to avoid a primary challenge.

  • Don’t fixate on whether the nominee shifts the balance of power on the Court. There has been a temptation to minimize the significance of the current vacancy, since a conservative would be replacing another conservative. That temptation should be avoided. There’s no reason not to run up the score when it comes to staffing the Court with ideologically compatible justices. After all, Republicans would have been more sanguine about losing Scalia had they held a margin greater than 5-4 at the time of his death. And a nominee who doesn’t shift the Court’s center of gravity still has value in that the majority party can trade in a departing justice for a much younger model.
  • For goodness’ sake, how about some counter-messaging? In all likelihood, Senate Democrats are not going to be able to block the nomination. But if they’re fighting about the parameters of future nominations–and if they’re not, they really need to be–they need to stop ceding the intellectual high ground. Conservatives have beaten the drum for Scalia’s brand of originalism so effectively that large swathes of the public believe that channeling the framers represents the only legitimate form of constitutional interpretation. Why not take advantage of the hearings to build support for an alternative that’s conceptually sound and publicly appealing? It’s either that or search for gotchas in the nominee’s personal or professional background, and if gotchas didn’t keep Clarence Thomas off the Supreme Court, they’re not going to keep off Gorsuch or Hardiman either. The gotcha strategy also doesn’t help the party build a “brand name” that can help it win support for its future nominees; instead, it creates the impression that the party wielding it does so out of desperation because it cannot contend in the realm of ideas.

Democrats were unable to make electoral hay out of the unprecedented treatment of Judge Merrick Garland’s nomination, and they probably will have little success at using the upcoming hearings as a chance to get a second bite at that apple. But too many circumstances militate against treating the Republican nominee as if 2016 had never happened.


What Obama’s winter vacation plans should be

In case you doubted that Senate Republicans’ campaign of obstruction against Supreme Court nominee Merrick Garland has stunk of bad faith from the outset, recent statements from several high-ranking Senate Republicans should put your doubts to rest. The emerging plan seems to be not only to deny President Obama the opportunity to fill the ninth seat on the Court, but to obstruct anyone put forth by Hillary Clinton as well. We have been treated to fatuous rhetoric about how respect for democracy requires that the vacancy be filled by the new president, but now it seems that this principle, dubious as a matter of history or constitutional law, will evaporate in light of the likelihood of another Democratic president.

Here’s Ted Cruz on the subject:

“I think there will be plenty of time for debate [on whether to consider Clinton’s nominees]…. There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

(It turns out that Breyer wasn’t quite as sanguine about the prospect of an eight-member Court as Cruz made him sound. Justices Sotomayor and Ginsburg are decidedly more hostile, and even Justice Thomas has indicated dissatisfaction with the status quo.)

Here’s John McCain promising to be “united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” He later tried to walk back that statement, claiming that he promised only to scrutinize her nominees closely rather than bar their consideration altogether, but you can decide whether that more charitable reinterpretation has more credibility than the initial statement.

And as if on cue, a number of legal commentators have rushed in to lend a patina of intellectual respectability to this shabby effort. There’s Cato’s Ilya Shapiro arguing at The Federalist that the Senate would be within its rights never to confirm another Supreme Court nominee, no matter the consequences to the judiciary. There’s Eric Segall making the case that an eight-member Court would be preferable to a nine-member Court, in that the former would have to achieve higher levels of consensus on controversial cases. And there’s Michael Stokes Paulsen writing at National Review about how shrinking the Court to six, either by legislation or Senate commitment to atrophy, would produce a Court less prone to judicial activism, or at least the bad kind that produces decisions liberals like, because two-thirds is greater than five-ninths.

Does anyone really believe that these arguments would have surfaced had a Republican presidential nominee been primed to assume the presidency? In that scenario, we’d be hearing about how elections have consequences, and how FDR demonstrated the evils of tinkering with the size of the Supreme Court for short-term partisan or ideological advantage. (It’s telling that the defenders of obstruction have to go back to the Reconstruction era to find examples of obvious manipulation.) Ultimately, though, it’s the senators, not the law professors, who whose views will prove more consequential for the Court’s fate. And we’ll have more clarity about their fate after next week’s election.

So President Obama’s winter break plans should be straightforward: Have a nominee lined up for every single federal judicial vacancy. If voters elect Clinton and a Democratic Senate majority–if we get the latter, we’ll almost certainly have gotten the former too–then he should spend the last two weeks of his presidency pushing nominees through. It’s not as though he’ll have much else to do, in all likelihood, and Clinton would get to conserve political capital for other battles she’ll be fighting. (If voters go in a different direction, then all bets are off, of course.)

Some possible objections:

  • What about Hillary Clinton? Won’t she feel miffed about being denied the opportunity to fill these seats, should she win election? This problem could be solved easily by Obama’s inviting Clinton to make the judicial selection process a joint effort.
  • Will nominee quality be compromised by such a rushed effort? There are compelling arguments that the vetting process has gone too far in the level of scrutiny to which potential nominees are subjected. But even if you think the level of scrutiny is appropriate, it’s hard to believe that the Obama administration doesn’t have a list of already-vetted candidates upon whom it could draw. The presence of such a list would be testament to the effects of years of obstruction for obstruction’s sake.
  • Won’t inter-party comity in the Senate be damaged by such hardball? (Long pause to let convulsive laughter subside…) In the short run, there could be damage to what’s left of comity. But in the long run, seeing evidence that obstructing moderate nominees has political costs might lead to a more cooperative Republican caucus.


So, President Obama, if you want one more legacy item (or two, if ISIS gets crushed before January 20, 2017), here’s your opportunity. At the risk of sounding cliched, don’t throw away your shot.

Court strikes down Texas abortion restrictions

Turns out there are limits to how much anti-abortion propaganda  Justice Anthony Kennedy can swallow before his digestive system revolts:

The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas must fall.

The Texas law at issue, HB2, represented a new anti-abortion strategy focusing on supply-side limitations on abortions. The provisions struck down today required doctors performing abortions to have admitting privileges at a nearby hospital, and abortion clinics to be built to the standards of ambulatory surgery centers. Building on a line of argument that had convinced the Supreme Court to uphold a ban on so-called partial birth abortions in 2007, the Texas legislature had publicly justified its policies as protections for women’s health.

But Justice Stephen Breyer, writing for a five-justice majority, dismissed these claims as pretexts masking the statute’s true purpose: sharply curtailing the availability of abortion throughout the state. Hospitals are already required to accept patients needing emergency services, so the admitting privileges requirement adds nothing for women’s health, but enables anti-abortion hospital boards to prevent doctors from providing abortions in their own facilities. And the building standards requirement struck the majority as overkill, given the percentage of women who receive medical abortions and thus require no surgery at all, as well as the existence of riskier procedures, such as colonoscopies and childbirth (!), which may be performed at facilities lacking such requirements. Combined with the uncontroverted findings of the district court that demonstrated the law’s on-the-ground impact since its enactment in 2013, these arguments led the majority to conclude that the law imposed an “undue burden” on women’s right to choose, in violation of the standard set forth in the Court’s last major ruling on abortion.

The impact of today’s ruling in Whole Women’s Health v. Hellerstedt cannot be overstated. Almost half the states have facility requirements comparable to Texas’, while 14 require providers to have some affiliation with a local hospital. But beyond the decision’s nullification of these laws lies a more prospective benefit: the shift in tone that signals the Court’s greater willingness to scrutinize claims offered in defense of restrictions on abortion. Part of what frustrated pro-choice activists about the replacement of Roe v. Wade‘s trimester framework with the undue burden standard from Planned Parenthood was the potential plasticity of the latter approach. Without anything concrete to anchor an understanding of what makes some burdens undue and others justifiable, the application of the standard depends on the predilections of the judge applying it. Breyer’s majority opinion and Justice Ruth Bader Ginsburg’s pointed concurring opinion (“it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions'”), with their deep dives into the social science findings supplied by both the petitioner and amicus curiae, send a clear message to the states that specious justifications for restrictions on abortion will be labeled and treated as such.

How total was today’s victory for the pro-choice movement? Even Roe opponents Chief Justice John Roberts and Justice Samuel Alito (who had voted while on the Third Circuit to uphold the spousal notification requirement struck down in Planned Parenthood v. Casey) could not bring themselves to defend the Texas law. Instead, they advocated returning the case to the lower courts to develop further the factual record on how the law was actually affecting women’s access to abortion. Given the facts relied upon in the majority opinion, it is unclear what further evidence these justices would have needed to see, but a remand would have bought some time and maybe enabled a junior version of Scalia to arrive at the Court to cast the decisive vote to uphold the statute. Only Justice Clarence Thomas was willing to issue a full-bodied defense of the statute.

It would be foolish to counsel the pro-choice community against complacency in the wake of today’s ruling, as no one has ever seriously advocated on behalf of complacency. But it does seem worthwhile to remind it that anti-abortion activists have been tactically resourceful and willing to play the long game. Moreover, their perspective commands legislative majorities in states containing a sizable majority of women of child-bearing age. So while two stringent restrictions were invalidated today, others will be forthcoming. But today the Supreme Court signaled that supporters of new regulations will be facing an uphill battle.

Supreme Court goes minimalist in jury selection ruling

How egregious must a state’s racially discriminatory behavior in jury selection be before the Roberts Court, with its pervasive skepticism toward claims of racial discrimination, is willing to rap the perpetrator’s knuckles? On Monday, we found out when the Supreme Court voted 7-1 to overturn a Georgia man’s death sentence because the state had used its peremptory challenges to systematically strip the jury of all African-American potential jurors. (Unlike challenges for cause, under which jurors may be removed only for specified reasons pointing to bias, peremptory challenges do not require any justification.) Notably, the opinion was self-assigned by Chief Justice John Roberts, who once wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Under the leading Supreme Court precedent on peremptory challenges, Batson v. Kentucky (1986)once a defendant claims that the prosecution has struck potential jurors in a racially discriminatory manner,  the state shoulders the burden of offering a race-neutral justification for its removals. The defendant then must demonstrate that the state’s proffered justification was pretext for illicit discrimination. This last stage is the one where Batson claimants tend to get stuck: trial judges tend to take prosecutors’ explanations at face value, appellate judges defer strongly to trial judges’ rulings on Batson motions, and defendants typically lack the evidence needed to demonstrate that prosecutors were not, in fact, behaving race-neutrally.

What was different in the scenario featured in Foster v. Chatman? First, the defendant, Timothy Foster, was able to invoke Georgia’s Open Records Act to force disclosure of the prosecution’s file from his trial. Without this information, his Batson claim would have been rejected, much as his previous two Batson claims had been.Instead, Foster was able to reveal the arsenal of smoking guns left by the prosecution. Second, the Supreme Court, with the notable exception of Justice Clarence Thomas, did not display typical levels of deference to the state courts’ rulings on Foster’s Batson motions. Chief Justice Roberts explained thoroughly, and in pointed prose, how the Georgia prosecutors’ race-neutral justifications for its peremptory challenges could not withstand even the most cursory scrutiny. The result was a ruling that garnered the support of most of the Court’s conservatives, as well as all of its liberals.

As I argued in an earlier post, this ruling should not have been surprising, given the evidence unearthed by the defendant. Any suspense would have to come from the scope of the ruling. Few should have expected the Court to consider whether peremptory challenges as a practice could be reconciled with the Fourteenth Amendment, a position Justice Thurgood Marshall rejected in his Batson concurrence. In Marshall’s view, peremptory challenges were inherently about hunch-playing, and since there was no way to ensure that prosecutorial hunch-playing would be free of invidious stereotyping, prosecutors should be limited to challenges for cause. But Marshall concurred alone, unable to persuade even his fellow liberal William Brennan to join him, and no other justice has subsequently taken Marshall’s position.

The question, then, was whether the Court would set further constraints on the use of peremptory challenges. That did not happen either; what we got was a straightforward application of Batson principles, aided by all that juicy documentary evidence. What will happen when, as is typically the case, such evidence is not readily available? The majority didn’t offer much guidance. Perhaps the cost of a near-unanimous ruling was a narrow holding, but while that narrow holding serves Timothy Foster well, it does little for the next Timothy Foster in the system.

I know justices, I’ll have the best justices

Here, courtesy of AP, is the list of names Donald Trump is floating as potential Supreme Court nominees:

  • Steven Colloton of Iowa (8th Circuit Court of Appeals since 2003)(served as associate independent counsel for the Whitewater investigation.)
  • Allison Eid of Colorado (Colorado Supreme Court since 2006)
  • Raymond Gruender of Missouri (8th Circuit Court of Appeals since 2004)
  • Thomas Hardiman of Pennsylvania (3rd Circuit Court of Appeals since 2007)
  • Raymond Kethledge of Michigan (6th Circuit Court of Appeals since 2006)
  • Joan Larsen of Michigan (Michigan Supreme Court since 2015)
  • Thomas Lee of Utah (Utah Supreme Court since 2010)
  • William Pryor of Alabama (11th Circuit Court of Appeals since 2004; previously state’s Attorney General)
  • David Stras of Minnesota (Minnesota Supreme Court since 2010)
  • Diane Sykes of Wisconsin (7th Circuit Court of Appeals since 2004; previously associate justice of Wisconsin Supreme Court)
  • Don Willett of Texas (Texas Supreme Court since 2005)(not a fan of Trump)

If Jim Geraghty’s post at National Review earlier that day was representative, conservatives were getting antsy over the lengthy interval since Trump’s March 21 promise to release a list of potential nominees. But they’ll probably see little to dislike in this list, stocked high with young nominees with sterling conservative credentials and a paucity of heterodox rulings needing absolution from conservative voters and commentators. (Ian Millhiser at Think Progress describes why Pryor and Sykes, two of the favorites from this list, would be a nightmare for progressives. For other criticism, see here and here.) Trump certainly got his money’s worth from the Heritage Foundation and any other movement conservative outlets to which he outsourced this task. And anyone indulging in the Naderite fantasy that a presidential election without Bernie Sanders offers a Tweedledee vs. Tweedledum should think really, really hard about the prospect of several of these individuals holding seats on the Supreme Court for the next 30 years.



Judge Palin?

Just in case you thought daytime TV needed one more courtroom show:

Sarah Palin, whose last reality-TV showAmazing America With Sarah Palin, was not exactly a smash hit, is getting a second chance at daytime-TV stardom.People reports that the former Alaska governor has signed a production deal with Warm Springs, a production company based in Montana, for a courtroom reality show in the vein of Judge Judy. “Palin’s telegenic personality, wide appeal, and common-sense wisdom make her a natural for this kind of format,” an unnamed source told the magazine.

I guess that if I were attaching terms such as “wide appeal” and “common-sense wisdom” to Sarah Palin, I’d want to stay unnamed too.

Just the same, a Judge Judy-type show might be right up the former vice-presidential candidate’s alley. Her lack of a J.D. won’t be an obstacle in addressing the kinds of disputes featured on daytime TV courtroom reality shows; it’s not as though she’ll be expected to parse complex statutory language. She’s polarizing, but the people turned off by her aren’t likely to be sitting at home on weekday afternoons eagerly awaiting her latest pronouncements. These shows are about delivering a semblance of rough justice and allowing viewers to feel superior to one or both of the hapless participants. “Judge” Palin should have no trouble delivering on both fronts. And without this kind of crucial hands-on experience, how else is she going to make Donald Trump’s Supreme Court short list?

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