Neil Gorsuch is an outstanding choice for the Supreme Court. As President Trump said in making the announcement, this was indeed the most important criterion for many of us who voted for him. We look forward to many years of excellent jurisprudence from Justice Gorsuch.
The most important federalism issue for our work is the interference of the lower federal courts with criminal cases from the state courts. From 1953 to 1996, the general rule was that the federal courts on habeas corpus would reconsider de novo (from scratch) questions of federal law already decided by the state supreme court, as if they were a higher court with appellate jurisdiction. They are not, and such second-guessing on close questions is not the proper purpose of habeas corpus. Congress passed the key habeas reform of the Antiterrorism and Effective Death Penalty Act of 1996 to put the brakes on that, reserving relitigation on habeas corpus for correction of clearly wrong state court decisions only -- with "wrong" defined by Supreme Court precedent, not the lower federal courts' precedents.
As the short list got shorter, I did a few Lexis searches to see whether the nominees respected and applied the AEDPA reform as intended or whether they were among the judges who evaded it and had to be reversed by the Supreme Court. Judge Gorsuch, from the cases I was able to find, appears to be solidly in the former camp. That is not true of all of the candidates.
This is a very good day for federalism, for the Constitution, for the rule of law, and for the law-abiding people of the country. If the Democrats filibuster, go nuclear. It's worth it.
The most important federalism issue for our work is the interference of the lower federal courts with criminal cases from the state courts. From 1953 to 1996, the general rule was that the federal courts on habeas corpus would reconsider de novo (from scratch) questions of federal law already decided by the state supreme court, as if they were a higher court with appellate jurisdiction. They are not, and such second-guessing on close questions is not the proper purpose of habeas corpus. Congress passed the key habeas reform of the Antiterrorism and Effective Death Penalty Act of 1996 to put the brakes on that, reserving relitigation on habeas corpus for correction of clearly wrong state court decisions only -- with "wrong" defined by Supreme Court precedent, not the lower federal courts' precedents.
As the short list got shorter, I did a few Lexis searches to see whether the nominees respected and applied the AEDPA reform as intended or whether they were among the judges who evaded it and had to be reversed by the Supreme Court. Judge Gorsuch, from the cases I was able to find, appears to be solidly in the former camp. That is not true of all of the candidates.
This is a very good day for federalism, for the Constitution, for the rule of law, and for the law-abiding people of the country. If the Democrats filibuster, go nuclear. It's worth it.
Having reviewed his resume, and having read at least a dozen of Judge Gorsuch's well-written opinions on a variety of issues, he strikes me as highly qualified to sit on the Supreme Court.
Any opposition from the Dems is simply a knee-jerk reaction to the fact that he was nominated by Pres. Trump (I am still having a hard time with that salutation) and the fact that the GOP (wrongly IMO) refused to even consider Obama's nomination of Judge Garland.
The moving finger writes, and having writ, moves on.
The only question legitimately before us at this stage is whether Judge Gorsuch is well qualified for the Supreme Court. As you, Kent (and I, for what it's worth) agree, he is.
As you also correctly point out, there is essentially no sensible objection to him. Richard Nixon, a crook by anyone's reckoning, nominated Lewis Powell and William Rehnquist. Their qualifications, like those of Gorsuch, had nothing to do with the man who put them forward.
I see no way to oppose this choice other than juvenile foot-stomping. I fear that is what we're about to get.
My prediction is that it will be tolerated for a time, and then brought to an end. If the Democrats want to control the Court, they could have prevailed in the Senate in 2014 and in the electoral college last year. Having done neither, they should be grateful for a nominee of this quality.
Just curious, Bill, should we take any pause that Obama's former Solicitor General and the Denver Post have come out in support of him? There is being a brilliant justice and then there is being a brilliant version of Kennedy.
Theoretically, I like justices who follow the law even if it means leaving the reservation occasionally. That said, it only works if the liberals do the same. Unfortunately, there is not one liberal on the court who will vote apart from the bloc on a big decision. No one ever asks how Ginsburg will vote. Everyone knows that she and the rest will vote for the liberal position.
I think it would be suicidal to filibuster Gorsuch. If they do so with a candidate that everyone says is so well qualified, Mitch will have no choice but to nuke them. Trump is then completely free to shove Pryor down their pie holes if a future vacancy occurs with no political fallout.
Of course, judging by their actions over the last eleven days, I'm not sure that they are not suicidal.
Why was the GOP "wrong" to prevent a floor vote on Judge Garland?
(1) Obama had tried to filibuster Alito.
(2) The GOP was merely following the Biden Rule and the Harry Reid Rule about confirmations in an election year of a second-term president.
Even more to the point--whether or not, in a vacuum, a second-term president's SCOTUS nominee should get an up-or-down vote--we don't operate in a vacuum. The Democrats started the judicial wars--Jimmy Carter got judges confirmed AFTER he lost the election. Then Senate Dems started stiffing Reagan judges and Bush 41 judges. The GOP Senate repaid Clinton, but not equally to how Bush 41 was treated (more holdovers for Bush 41, than Clinton). Additionally, certain of Clinton's nominees were flat-out offensive (e.g., Frederica Massiah-Jackson) due to their lack of qualifications.
Then Bush 43 renominated some holdovers for Clinton, and we saw how Leahy & Co. treated his judges.
IMO, Biden, Reid and McConnell were all wrong in refusing to even consider a nominee's qualifications.
I don't like tit-for-tat politics when it comes to Supreme Court nominations. But, as you point out, that's where we are at, and have been for some time.
Perhaps, the Dems will come to their senses and not die (at the hands of a nuke) on the Gorsuch battlefield. They should pick and choose their battles with T. And, I suspect, there will enough of them in the days to come, if the first two weeks are a guide.
Good instincts.
Life in this town has taught me to get nervous when Mr. X or Program X has "bi-partisan support," because most of the time that has turned out to mean support on terms designed by the Democrats and then sold to the Republiccans. And of course I'm old enough to remember Souter and Blackmun, so I'm well aware that Republican instincts can be wrong.
Friends of mine who have gone through his opinions think he's quite good, however, and I have started to defer in my Golden Years.
Then there's this: I smell a chess game here. I don't know how resolute either side is or will become. This could be the skirmish before a bigger battle, a testing of mettle.
Stay tuned.
Is Gorsuch more Kennedyesqe or Robertesque than Scalia-like? Great question. From the opinions I have read, I can't answer that question with any confidence.
Take a look at his opinion in the Fourth Amendment case of United States v. Ackerman, 831 F.3d 1292 (2016). What do you think? Does it read like anything that Scalia or any of the current justices would write? He definitely has a very inquisitive mind -- discussing (but not resolving) issues that were not raised by the parties.
I know one opinion does not make a judicial philosophy. But it may shed some light on how his judicial mind works, especially with respect to cutting-edge criminal justice issues where the Court has not provided clear guidance.
Yes, but it's hard to say McConnell is "wrong" when Reid & Biden pocketed the benefits of their wrong. So, if McConnell acted as you suggested, he'd be acquiescing to a double-standard. And, given that Obama was part and parcel of the wrong treatment, why should McConnell feel inclined to give an olive branch?
As for Gorsuch, his dissent in Williams v. Jones, 571 F.3d 1086 (10th Cir. 2009) really says a lot.
In light of Laffler, his dissent would cast him as more Scaliaesque than Kennedyesque, at least with respect to the Sixth Am. right to counsel in the context of rejected plea bargains.
I am still not sold on his being more like Scalia than Kennedy or Roberts with respect to the wide range of criminal justice issues that the Court confronts.
Perhaps, Kent will provide hos thoughts on this issue. Or, perhaps, he would rather refrain from doing so at this time?
I don't believe he is another Souter. But knly time will tell what his core judicial philosophy truly is
The Lafler opinion (since it was on habeas) is one of the worst decisions in recent memory. Lawless is about the mildest term I can come up for it.
I am hoping he leads the charge to overrule Zavydas v. Davis, which is another atrocious decision, and one which does violence to our polity every day. The issue in that case can be summed up thusly:
Who should bear the risk that a criminal alien's country won't take him back? The society as a whole or the criminal alien? To ask the question is to answer it. To frame it in legal terms, does the Constitution require the risk be placed on society as a whole.
I am presently doing a more thorough review of his habeas corpus opinions before I write more on the subject.
I am particularly interested in your thoughts on his arguably controversial habeas opinion in Prost.