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by Ed Whelan

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Gridlock Chuck’s Political Game To Blow Up Senate Tradition

by Carrie Severino

Senator Schumer has publicly announced that he plans to lead a filibuster against Judge Gorsuch’s nomination to the Supreme Court. That’s no surprise. We all knew Gridlock Chuck would spring into action sooner or later. What surprises me quite a bit more is how much credit reporters are giving him for standing up for the traditions of the Senate. That is an inaccurate way of framing things, to say the least.

For decades, Democrats have been playing hardball when it comes to using the U.S. Senate as a tool to turn the federal courts into a rubber stamp for the left’s political agenda. They don’t want judges like Judge Gorsuch, who are willing to decide cases without regard to their outcomes – they want politicians in robes.

Senator Graham described it well: “What Senator Schumer is doing is changing 200 years of precedent in the Senate because he can not stand the pressure from the left.”

It was Schumer himself who orchestrated the 2003 filibuster of Miguel Estrada to the D.C. Circuit, the first time in Senate history that a judicial nominee with clear majority support had even been denied confirmation due to a filibuster. On seven cloture votes, Estrada received majority support each time, but never enough votes for cloture.

In fact, that era fundamentally transformed the way the Senate handles judicial nominations. The successful and strictly partisan filibusters of ten Bush appellate nominees shattered Senate traditions. The principle of self-restraint was discarded. While the right to filibuster existed throughout Senate history, it was not exercised to block nominees brought to the Floor with majority support from receiving confirmation votes. 

Until 2003, cloture motions to end a filibuster were filed on only 17 judicial nominees.  Apart from Supreme Court nominee Abe Fortas in 1968 – a nominee widely regarded as a crook, who faced broad bipartisan opposition – all were confirmed.

Prior to 2003, judicial confirmation battles occurred, but almost always without attempted filibusters. These included Justice Clarence Thomas, who was confirmed 52-48 on an up-or-down vote and many appellate nominees who had majority support but significant minority opposition. In these decades, even through highly contentious confirmation processes the principle of self-restraining the filibuster on judicial appointments was maintained.

Exercising the constitutional option on the Gorsuch nomination would reinforce Senate tradition that judicial appointments brought to the Floor are not blocked by filibuster and receive a confirmation vote.

And, lest you have any doubt that Democrats would exercise that option if given the opportunity, I’ll say two things:

First, Democrats have already done it, with respect to lower court nominees, so we have previous behavior to inform our understanding of how they might behave in the future.

Second, when Senator Reid and Vice Presidential Nominee Tim Kaine believed Hillary was going to win the presidency, they made it explicitly clear that they would invoke the constitutional option to confirm her Supreme Court nominees.

In summary, Gridlock Chuck has made it clear time and time again that he is willing to destroy every norm and tradition in the Senate for the sake of turning our federal courts into rubber stamps for a left-wing political agenda. Now he is at it again, by threatening to make Judge Gorsuch the first Supreme Court nominee in U.S. history with majority support to fail because of a filibuster. Republicans appear poised to restore the tradition of the Senate by invoking the constitutional option and voting to confirm Judge Gorsuch with a bare majority, and I look forward to standing with them if it comes to that.

Senator Schumer’s Washington Post Handmaidens

by Ed Whelan

Habituated as I am to the Washington Post’s left-wing bias, I’m still surprised by particular glaring instances. Take, for example, today’s front-page article, written by Robert Barnes, Ed O’Keefe, and Ann E. Marimow, on Senator Schumer’s filibuster threat against Supreme Court nominee Neil Gorsuch.

The article is titled (in the print edition) “Filibuster against Gorsuch promised.” It asserts early on:

Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. [Emphasis added.]

It later observes that “the 60-vote threshold has not caused a problem” for recent Supreme Court nominees.

Some observations:

1. What a strange headline. (I presume that the editors, not the reporters, are responsible for the headline.)

Filibusters aren’t usually “promised” (a word with very positive connotations); they’re threatened. Indeed, my quick Lexis search on WaPo articles over the last 10 years has filibuster associated with threat some 85 times, compared to a mere three for promise. (My search included cognates of the three words.)

To be sure, every threat could be recast as a promise (“the kidnapper promised to kill his hostage”), but the usual parlance is that filibusters are threatened.

And, no, the headline can’t be defended on the ground that Senator Schumer’s statement has gone beyond a threat. Indeed, the carryover headline (on page A5) sensibly speaks of “Filibuster threat….”

The passive voice in the headline is also odd. Why not “Schumer threatens Gorsuch filibuster”? I’m guessing that the answer is that the headline editors sensed that it wouldn’t poll as favorably.

2. The passage indented above gets the Senate tradition exactly backwards. Yes, Senate rules have since 1949 nominally allowed cloture votes on Supreme Court nominees. (And, of course, they allowed the same thing for lower-court and executive-branch nominations up until Democrats abolished the filibuster for those nominations in November 2013.) But the tradition under those rules is that cloture votes have been rare—which is all the more remarkable since any single senator has the power to insist on a cloture vote.

According to the Washington Post’s Glenn Kessler, there have been only four cloture votes on Supreme Court nominees (among the more than 30 nominations to reach the Senate floor since 1949): In 1968, the bipartisan negative votes on cloture blocked LBJ’s effort to elevate Abe Fortas to chief justice. In 1971, a motion to invoke cloture on Nixon’s nomination of William H. Rehnquist failed, but a final merits vote on the nominations was allowed that same day. (That would indicate that the cloture vote wasn’t part of a filibuster effort but was instead done for other reasons, but I haven’t researched the matter.) In 1986, Democrats failed to block cloture on Reagan’s elevation of Rehnquist to chief justice. And in 2006, the Democrats’ filibuster effort against the Alito nomination failed.

In short, the reporters confusingly—and, it seems to me, artfully—misuse “Traditionally” to refer to what the Senate rules allow rather than to the actual practice under those rules.

3. On an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees, far from “overhauling the way justices have long been approved,” would ensure the continuation of that traditional practice.

4. By speaking of a supposed “60-vote threshold” and measuring recent nominees’ final confirmation votes against that supposed threshold, the reporters buy into the very spin that Senate Democrats have been making—and that their own WaPo colleague Glenn Kessler has punished with Two Pinocchios.

5. The bigger picture here is that Senate Democrats have been trying to lay the groundwork to depict their extraordinary potential filibuster as something ordinary—and to paint Republicans as the aggressors for moving to abolish the Supreme Court filibuster. Their goal, of course, is to lower the political costs of filibustering the Gorsuch nomination and to raise the political costs for Republicans to abolish the filibuster.

Barnes, O’Keefe, and Marimow have shown themselves to be eager handmaidens of the Democrats.

This Day in Liberal Judicial Activism—March 24

by Ed Whelan

1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

No Deal

by Ed Whelan

Politico reports that some Senate Democrats might try to pursue a deal with Senate Republicans that would “allow confirmation of [Supreme Court nominee Neil] Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent [Supreme Court] vacancy during President Donald Trump’s term.”

There is no reason for any Senate Republicans to entertain this foolish deal. Such a deal would give Senate Democratic leader Chuck Schumer a preemptive veto over the next Supreme Court nominee.

If Senate Democrats are serious about filibustering the Gorsuch nomination, that shows that there is no plausible nominee of a Republican president whom they wouldn’t filibuster—and no one worthwhile who would ever get Schumer’s okay.

It’s time to put Senate Democrats to the test. If they defeat cloture on the Gorsuch nomination (by preventing 60 yes votes on cloture), the only sensible response from Senate Republicans is to do what Senate Democrats boasted they would do in the same scenario: abolish the filibuster for Supreme Court nominees.

It makes no sense for Republicans to allow a double standard under which Supreme Court nominees of a Republican president are subjected to a filibuster but Senate Democrats, when back in the majority, would be free to abolish the filibuster for Supreme Court nominees of a Democratic president.

This Day in Liberal Judicial Activism—March 23

by Ed Whelan

1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

2004—The Left is adept at what Abraham Lincoln labeled “lullaby arguments”—false claims designed to lull the listener into a sense of complacency. In testimony at a Senate hearing, law professor Cass Sunstein argues that a constitutional amendment on marriage is unnecessary because the prospect that the Supreme Court would invent a constitutional right to same-sex marriage is utterly fanciful:

It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench.

Sunstein was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices in that case, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” So much for Sunstein’s claim that any concern that the Court might “hold that there is a constitutional right to same-sex marriage” was “a reckless conception of what is on the horizon” and “indefensible by reference to anything any Supreme Court Justice has said.” 

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.

Trump Nominates Thapar to Sixth Circuit

by Jonathan H. Adler

Yesterday, President Donald Trump announced his intent to nominate Judge Amul Thapar to one of two open seats on the U.S. Court of Appeals for the Sixth Circuit. For Bench Memos readers, this should come as no surprise. Judge Thapar is currently a federal district court judge in Kentucky, and previously served as a federal prosecutor. His nomination was urged by Senate Majority Leader Mitch McConnell.

This Day in Liberal Judicial Activism—March 22

by Ed Whelan

1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Gone Tweeting

by Ed Whelan

I’ll be doing little if any live blogging during Judge Gorsuch’s confirmation testimony, as Twitter, for all its faults, seems a vehicle better suited for instant responses.

My Twitter handle is @EdWhelanEPPC. I also invite you to consult my repository of commentary on the Gorsuch nomination, collected on this single page (to enable ease of searching for cases or topics).

Fellow Students Refute Student’s Claim of Sexist Gorsuch Comments

by Ed Whelan

NPR reported yesterday that Jennifer Sisk, a “former law student of Judge Neil Gorsuch, … alleges that that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

But a slew of students who took the same ethics course from Gorsuch—some in the same class as Sisk—are powerfully refuting her claim. From their accounts, it seems quite clear that Sisk (who has Democratic ties) was misunderstanding Gorsuch’s devil’s-advocate posturing of hypotheticals.

In a letter to the Senate Judiciary Committee, Baker Arena, a student in the same class as Sisk and a self-described “liberal feminist Democrat,” explains:

In the Legal Ethics class I took from Judge Gorsuch, the textbook we used contained numerous hypothetical ethical dilemmas that attorneys could potentially face in their practice. Judge Gorsuch would use these dilemmas in the textbook in his lectures to illustrate the fact that there are few black and white solutions to the ethical issues attorneys face daily. Adept at challenging the views of students (and sometimes frustratingly so), Judge Gorsuch would use the Socratic method and play devils advocate in his lectures as the class debated the appropriate course of action to confront the ethical issues at hand. If a valid point was made in favor of one course of action, he would present counterfactual points to illustrate the compelling arguments in favor of another course of action. Through the constant debate of ethical dilemmas that semester, we left with a greater appreciation of the nuances attorneys must account for in making ethical decisions consistent with our code of professional responsibility.

I was present in the class at issue and sat directly in front of the accusing student. I recall the hypothetical ethical dilemma discussed in the lecture that day. In that hypothetical ethical dilemma, a female law student, suffering financial hardship, is asked at an interview if she planned on having children and using the firms maternity leave policies. The female student in the hypothetical was planning on having children but nervous to tell the potential employer, for fear she might not get the position. Judge Gorsuch began to lead the class in debate as to what the appropriate course of action should be for the female law student. Judge Gorsuch made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to. In fact, as a man, I had never really considered the extent of pregnancy related discrimination that women face in the workplace until this very class. True to form (and the Socratic teaching style), Judge Gorsuch also presented counterarguments presenting the hardships employers face due to paid maternity leave policies, which I, as a liberal feminist Democrat, as well as the majority of my colleagues rejected.

During Judge Gorsuch’s presentation of such counterarguments, I do not recall him accusing women of taking advantage of paid maternity leave policies, much less espousing such accusations as his personal beliefs. In class and in our conversations outside of class, Judge Gorsuch was always extremely respectful, inclusive, tolerant and open-minded. Additionally, Judge Gorsuch’s never shared his personal views on legal or ethical matters in class and was somewhat of an enigma. Had he made the statements he is accused of making, I would have surely noticed as they would be out of his character and had he said such things, I potentially would have even said something to him concerning these statements. That is not the Judge Gorsuch I know.

Ruthie Goff, who took Judge Gorsuch’s legal ethics class in 2015, writes (link to come):

I purposefully took Ethics with [Judge Gorsuch], because I wanted to be pushed and challenged on the difficult questions I would face as a woman entering the legal community. That’s exactly what his class did. Judge Gorsuch asked tough and sometimes uncomfortable questions, and I appreciated every one of them.…

One such scenario asked us to consider whether or not an employer can ethically ask a female applicant if she plans to have a family soon. At first, I thought absolutely not because that’s not fair nor can that be ethical. The discussion proceeded much in that way until Judge Gorsuch finally revealed employers are not prohibited from asking that question but only from making the final decision based on that answer. That’s the rule and the law. As much as I disagreed, I understood why the Judge pushed us so hard. The point was to get us to understand that the law will challenge us to resolve difficult issues in ways that we may not agree with, but in a way we have a legal and ethical duty to do so. During this discussion, I never felt as though he was expressing his personal belief regarding the scenario but was doing his job in remaining neutral and guiding us to an understanding of how we must sometimes divest ourselves of personal beliefs in order to apply the rules of ethics and the rule of law.”

Will Hauptman, who was also in the same legal ethics class as Sisk, has also written to the Committee to “refute the … veracity” of Sisk’s claim:

Although Judge Gorsuch did discuss some of the topics mentioned in [Sisk’s] letter, he did not do so in the manner described. The judge frequently asked us to consider the various challenges we would face as new attorneys. Among those challenges were balancing our desire to perform public service with our need to pay off student loan debt, and the tension between building a career in a time-intensive profession and starting a family and raising children—especially for women. The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group. And despite the soberness that these topics sometimes imparted on the class, our conversations were always respectful and cordial.

It is clear that my classmate and I have a different account of what happened in class. But had Judge Gorsuch truly made the statements described in the letter, I would remember—the statements would have greatly upset me. And I would not be writing you in support of the judge if I felt he would not treat all people with equal dignity.

Jordan Henry, a female student who took Judge Gorsuch’s ethics class in the fall of 2016 (one semester after Sisk), tells the Committee that Sisk’s allegations “in no way reflect my experience with Judge Gorsuch as a professor and a mentor.” In what seems like a discussion of the same textbook hypothetical, Henry writes:

I recall a day in class that was devoted to diversity and some of the issues that face women and others in the profession. The textbook noted that there is a lot of attrition among women lawyers. Judge Gorsuch encouraged discussion on this point and asked students to share their experiences. I shared an experience where I was asked about family planning in a job interview and the overriding concern seemed to be whether I would need maternity leave. Judge Gorsuch thanked me for sharing my experience and used it to demonstrate that gender inequality in the profession was not just theoretical, but something that may occur to the classmate sitting next to us. He prepared us to confront these issues when they arise.

Catherine Holgrewe, who took Judge Gorsuch’s ethics class, has issued this statement (link to come):

Judge Gorsuch was an exemplary professor and treated every student with absolute respect. He took an active interest in our educational and professional success. Judge Gorsuch always made time in his busy schedule to further discuss class materials and offer professional advice and support. I have never heard Judge Gorsuch ever speak disrespectfully to or about anyone. As a former student, I am a witness to the respect that he showed towards his female students and fellow professors at Colorado Law. The supposed remarks he made in his 2016 Legal Ethics class are completely out of character and I find very hard to believe are accurately relayed. 

Nathan Davis, another student in Sisk’s class and “a life-long Democrat,” attests (link to come):

I have no recollection of Judge Gorsuch acting in the manner described in the letter, nor do I remember Judge Gorsuch making any insensitive or chauvinistic remarks at any point during the semester. I was fully aware that my professor was a federal judge and am certain that I would recall such outlandish behavior. Nothing I witnessed at any point gives me any reason to question Judge Gorsuch’s moral fitness to serve on the Supreme Court. 

Kate Waller, who took classes in both legal ethics and antitrust from Judge Gorsuch, states (link to come):

[Judge Gorsuch] never demonstrated anything but the utmost respect and integrity for all students and viewpoints. Judge Gorsuch believed in unbiased, well-reasoned arguments, and never appealed to emotions or politics.

While I was not in the class during which the alleged incident occurred, I can unequivocally say that I never witnessed him make any discriminatory statements about women or other minorities, nor demean or belittle anyone. He expected his students to appeal to logic and he demonstrated the same levelheaded, apolitical focus on reason over emotion.

Glen Matthews writes (link to come) of Judge Gorsuch’s ethics course:

Every week Judge Gorsuch did what was expected from him in the Ethics class he taught at the University of Colorado School of Law. I was a student in his class my final semester of law school. During each class, he posed provocative legal ethical questions and hypotheticals to his class. The class at issue was no different in that we explored difficult issues and topics that affect nearly all parents in the legal profession; specifically, how will the obligations of being an attorney impact my ability to effectively parent? Additionally, we discussed the ethical implications, if any, of applicants applying for jobs while knowing they were soon planning to start or expand their families.

The tone and tenor of that discussion seemed similar to ethical discussions we had about disclosing a client’s secrets after their death, or how the rising cost of a legal education creates a disincentive to enter public service. The point of this class was to explore difficult ethical questions—questions with no easy answers. Judge Gorsuch’s comments in this instance were in keeping with the dilemmas posed, which were admittedly difficult, and were not inappropriate or demonstrating bias. 

This Day in Liberal Judicial Activism—March 21

by Ed Whelan

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury.

The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there  is no real constitutional violation here anyway.”

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.) 

Property Rights and the Supreme Court

by Roger Clegg

After Judge Gorsuch has answered all the inevitable questions about the right to an abortion and the right to assisted suicide, maybe just for fun he could be asked about some rights that are actually in the Constitution, like the takings clause and the contracts clause, for example. George Leef has some thoughts on them here and here.

Nominee Kagan: No Comment on Whether Precedent Is Correct

by Ed Whelan

As I explained last week, the Ginsburg Standard means that a Supreme Court nominee should refuse to answer any question about whether a particular precedent was rightly decided (except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might come before the Court.

At her confirmation hearing, Justice Elena Kagan adopted exactly this approach: “I do not think it would be appropriate for me to comment on the correctness of a precedent of the Court.” (Written responses, answer to Sessions question #14.) When asked to “name the more poorly reasoned Supreme Court case, in your view, of the last fifty years” (emphasis added), she replied:

I do not think it would be appropriate for me to grade recent decisions of the Supreme Court, as the status of those cases as precedent and their application to new factual circumstances are issues that may come before the Court. One relatively recent decision (although not in the last 50 years) that was poorly reasoned and that is unlikely to come before the Court again is Korematsu v. United States, 323 U.S. 214 (1944). [Answer to Cornyn question #22 (emphasis added).]

Time after time during oral questioning and in her written responses, she refused invitations to express her opinion on dozens of cases.

Inappropriate Political Questions of Judge Gorsuch

by Carrie Severino

As we prepare for the latest Supreme Court confirmation hearing process, it seems appropriate to recall these important lines of inquiry from recent confirmation hearings: 

Judge Ginsburg, the president who nominated you has been accused of carrying on a 12-year affair with Gennifer Flowers and in an 60-minutes interview admitted he had caused ‘pain in his marriage.’ How do you square your role as a defender of women’s rights with the many reports of his infidelity?”

“Judge Breyer, earlier this year President Clinton was sued for sexual harassment by Paula Jones and has been engaged in a smear campaign against his accuser.  I want to give you the opportunity to distance yourself from this scandal-ridden administration – would you like to comment?”

General Kagan, President Obama ignited controversy at this year’s State of the Union address by publicly taking the Supreme Court to task for a decision he disagreed with.  Do you feel it’s appropriate for a sitting President to use the authority of his office to criticize decisions with which he disagrees?”

If you don’t have a vivid recollection of any of those questions, it’s no surprise.  Those types of explorations of a Supreme Court nominee’s commentary on political questions and debates have never actually come up because they are entirely inappropriate during the confirmation process. Many presidents have said and done controversial things in the past, but never have their judicial nominees been called to account for them.  

Until now.

Senate Democrats appear ready to take the judicial confirmation process to a new low in this area. Senator Schumer has already criticized Judge Gorsuch for not responding to questions they both know he cannot ethically comment on as a sitting federal judge (as Ed Whelan has discussed).  And Senators Klobuchar, Leahy, and Schumer have tested out the idea that Gorsuch’s commitment to judicial independence should have to meet an artificially high standard.

But this criticism of Gorsuch’s independence is part of a long line of attacks that don’t get traction against the judge because they are completely at odds with his record.  Democratic efforts to cherry-pick Gorsuch’s record to find cases that went against sympathetic parties were roundly denounced as misguided, misleading, and inconsistent with the judge’s full record on the bench.  It’s profoundly ironic that the same people who lauded Merrick Garland’s nomination – a judge whose jurisprudence was characterized by exceptional deference to the executive branch – are now concerned that Gorsuch is insufficiently independent, when his record on the bench shows him to be an outspoken critic of deference to the executive branch and a stickler for maintaining the constitutional limits on government power.  They should be applauding Gorsuch’s approach to presidential power, not trying to trap him in gotcha questions no judge should be expected to entertain.

But even if these attacks were not so silly in light of Gorsuch’s own record, they should be universally rejected as inappropriate for a judicial hearing.  A sitting judge should not be asked to wade into the political swamp.  The focus of this week’s hearings should be his record, and he shouldn’t be asked to weigh in on criticism of President Trump any more than he should be asked his opinion of Obama’s thinly-veiled threats against the Court or Bill Clinton’s sexual exploitation of Monica Lewinsky and his subsequent character assassination of the intern he seduced. 

I hope Judge Gorsuch will maintain the dignity of his judicial office by passing on this line of questioning, even if some Senators decide to degrade the dignity of their office by engaging in it.

This Day in Liberal Judicial Activism—March 19

by Ed Whelan

1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954​)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

This Day in Liberal Judicial Activism—March 18

by Ed Whelan

1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

The Gorsuch Hearing: Nuts and Bolts

by Ed Whelan

Here are the basics, as I understand them, of next week’s Senate Judiciary Committee hearing on the Supreme Court nomination of Judge Neil Gorsuch. (I’ve compiled my writings on the Gorsuch nomination on this single page, to enable easy review and searches.)

The hearing will last four days, from Monday through Thursday.

Monday’s session, which will begin at 11 a.m., will consist entirely of opening statements by senators. There are 20 senators on the committee, so at 15 10 minutes per senator, that’s five more than three hours of opening statements. Judge Gorsuch will then make his opening statement.

Judge Gorsuch’s testimony will take place on Tuesday and Wednesday. Senators will each have a first round of 30-minute Q&As, so that will take ten hours (not counting breaks). Chairman Grassley will open, followed by ranking member Feinstein, and then alternating back and forth between Republicans and Democrats—Hatch, Leahy, Graham, Durbin, Cornyn, Whitehouse, Lee, Klobuchar, Cruz, Franken, Sasse, Coons, Flake, Blumenthal, Crapo, Hirono—and then finishing with the two most junior Republicans on the committee, Tillis and Kennedy. I doubt that the first round will be completed on Tuesday.

The committee will then have a second round of questioning, which might be as long as 20 minutes per senator (or nearly seven hours total). That second round should be completed on Wednesday.

On Thursday (or perhaps starting late Wednesday), the various panels of witnesses will testify. 

This Day in Liberal Judicial Activism—March 17

by Ed Whelan

1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!


More on the Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

by Ed Whelan

A follow-up to yesterday’s post on the Ginsburg Standard:

As then-Judge Ginsburg explained at her confirmation hearing (transcript here), her record of opinions, law-review articles, speeches, and briefs provided the “most tangible, reliable indicator of [her] attitude, outlook, approach, and style” as a judge. Insofar as the hearing sought “helpful clarifications” of that record, it served a useful and legitimate purpose. But insofar as it instead sought to induce her to offer “forecasts” or “hints” about how she might rule in cases that might come before her, she regarded herself as ethically bound not to provide any such forecasts or hints.

Adhering steadfastly to the Ginsburg Standard is not easy, as Ginsburg herself observed: “I appreciate now more than ever how difficult it is for the [nominee] to maintain that line [i.e., the line ‘between judicial philosophy and votes in particular cases’] and not pass beyond it into forecasting or giving hints about votes in particular cases.” Part of the reason that steadfast adherence isn’t easy is that it’s politically tempting to win praise for endorsing popular precedents and for criticizing unpopular ones. (Some Democrats have argued that Ginsburg didn’t live up to her stated standard; as I explained way back during the Roberts nomination, that would be an indictment of Ginsburg, not an argument against the Ginsburg Standard.)

When senators ask a Supreme Court nominee to state whether the nominee believes that a particular precedent was rightly decided, they are either (a) seeking to have the nominee offer a hint on how the nominee would rule in a case that arguably involves the meaning or scope of that precedent on a matter that involve, or (b) using the precedent as a proxy for exploring the nominee’s judicial philosophy. Even when the inquiring senator has the latter motivation, answering the question risks giving a hint and thus violating the Ginsburg Standard.* Plus, there are plenty of other available means to explore the nominee’s judicial philosophy.

In short, the most sensible and principled way to apply the Ginsburg Standard is to refuse to answer any question about whether a particular precedent was rightly decided, except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might foreseeably come before the Court.

An additional reason to take this approach is that appellate judges decide cases by reading briefs, conducting oral argument, and conferring with each other. But a question whether a judge believes that a particular precedent was rightly decided seeks to shortcut this deliberative process, and answering that question (in the absence of careful study of the case) gives the impression that judging is little more than picking the results one likes.

* Linda Greenhouse misses this elementary point when she oh-so-cleverly advises senators: “Don’t accept the standard nominee response that ‘I can’t answer because that question might come before the court.’ It has already come before the court.” (Emphasis in original.)