Recently in Judicial Selection Category

Filibuster Folly

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The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

Democrats Retake Mantle of Stupid Party

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No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

Confirmation Hearing Follies

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I've been following the Gorsuch confirmation hearing off and on today, sometimes listening and sometimes following SCOTUSblog's live blog.  It's pretty much the usual, predictable, and often lamentable stuff that confirmation hearings have become today.

One point I thought I would mention.  At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group.  Seriously?  I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events.  There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing.  But far right?

How do we define "far" and "extreme"?  By the absolute value of the distance of one's views from the American median, of course.  Is the Federalist Society any further from the median than Senator Leahy himself?  No.

I will leave the comment thread open for discussion of the hearing generally.  Here is a seed question:  Who has been the biggest jerk among the Senators so far, and why?

What Exactly is "The West"?

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Several Senators supporting Judge Gorsuch, including Sen. Michael Bennet (D-CO) have made comments about him being from "the West" in contexts that imply that California (home of Justice Kennedy and originally of Justice Breyer) is not "the West."  Is it?

Purely geographically, of course, California is farther west than Colorado, Texas, or Arizona.  But is a movie set in California a "Western"?  The Birds?  Nope.  Magnum Force?  Nope.  Beach Blanket Bingo?  Nope. 

Okay, maybe there is something to that.
According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent."  He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
No, I am not taking this out of context.  Follow the link to read the whole speech for yourself.

Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions.  On a personal level, it is unfortunate that his nomination was scuttled on political grounds.  But judicial nominations are never based purely on merit.  (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.)  Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them.  Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats.  That's democracy, the worst form of government except for all the others.

Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not.  For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy.   Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster?  Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason.  The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for him.  To vote against him, much less filibuster, on that basis would be unprincipled, to use Senator Leahy's word.

Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan.  Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.

The Gorsuch Scandal

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The ever-reliable New York Times has unearthed documents showing that, twelve years ago, Supreme Court nominee Neil Gorsuch supported the harsh interrogation policies of the Bush Administration.

The Times' article has a breathless quality to it, but there's a problem with its outrage: At the time, Gorsuch was Principal Deputy Associate Attorney General.  In other words, as one-time Acting AG Peter Keisler notes  --  in a quotation placed far down the article  --  Gorsuch, "helped shape arguments and litigation strategy but not the underlying national security policy decisions, which 'had already been made'...These are cases he was working on as an attorney for [his client] and advancing its positions."

Readers should correct me if I'm wrong, but, when a lawyer takes on the defense of a child killer, or some gruesome sex-torture murderer, doesn't the Times, together with its defense bar friends, say that the attorney is "fulfilling the highest and most honorable calling of the legal profession"?  Advancing the government's case for effectively extracting intelligence from terrorists, however, gives you dirty hands?

Welcome to the case against Judge Gorsuch.

How Not To Pick a Supreme Court Justice

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Sen. Chuck Schumer, who is leading the opposition to confirming Tenth Circuit Judge Neil Gorsuch to the Supreme Court, thinks that an effective way to do so is to feature the litigants who have lost cases before Gorsuch. The stupidity and danger to the rule of law of this tack is not possible to capture in words, but Ed Whelan gives it a good try here.

The idea that we should select Justices by focusing on which side won (or lost) in the cases they heard as lower court judges is just breathtaking.  It used to be that result-orientation was exactly what you wanted to avoid in judges; now, according to the Gorsuch opposition, it's exactly what you seek.

As long as the opposition is so fond of this perverted approach, however, I hope it will also trot out the numerous killers and rapists Judge Gorsuch ruled against, thus to hasten his taking his seat on the Court.

Lesson 2: Lower Court Appointments Matter

Here is the second lesson to be learned from the debacle noted this morning.

Supreme Court appointments are critically important, but lower court appointments are important, too.

The Supreme Court is one court of nine people.  It cannot and does not correct every wrong decision rendered by lower courts.  Not even close.  The high court takes about 1% of the cases it is asked to take.  It takes a higher percentage when the Government is asking, but not all.

Bad appointments to lower federal courts can have very long-lasting effects.  The Ninth Circuit was expanded during Jimmy Carter's single term.  The appointments he made, no doubt strongly influenced by California Senator Alan Cranston, produced the notorious "Ninth Circus" that plagued the Far West for an entire generation.

One of those appointees is reported to have said, regarding the Supreme Court and Ninth Circuit decisions, "They can't reverse them all."  Whether he really said that and whether, if so, he was joking (as he claims) is beside the point.  It is undeniably true.  The Notorious Ninth commits far more errors than the Supreme Court can possibly correct, and it does so knowing that many of these decisions are contrary to what Supreme Court precedents actually require.  Even when they are eventually reversed, those errors do damage in the interim, and the interim can be a long time.

During the Bush 43 Administration, the judge-pickers had a motto of "no more Souters" for the Supreme Court, but they did not apply that principle to the lower courts.  They made some solid picks, but they made some that cannot be explained on any basis other than politics and personal connections.
An op-ed in the WSJ makes this case convincingly, here.   It gets to the point quickly:

Moderates could do a lot worse than Judge Neil Gorsuch--and we probably will if he isn't confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Republicans control both the White House and the Senate, and the idea that they will allow Democrats to, in effect, designate the next Justice to accord with their own policy preferences is a fantasy.  If left-wing petulance forces Sen. McConnell to change the rules to "go nuclear," what, exactly, does the Left think is going to happen next?  

Here's a clue:  Needing only 50 votes next time (with Vice President Pence as the tie-breaker), Trump may feel free to name a more doctrinaire nominee than he has now.  Justice Breyer is 78; Justice Kennedy is 80; and Justice Ginsburg is 83.  The likelihood of at least one additional vacancy for Trump to fill, and possibly three, is anything but remote.

Still, if the Left wants to dig in its heels, it's fine with me.  Three more Clarance Thomases will warm the cockles of my cold, textualist heart.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

To Nuke or Not to Nuke?

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Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

How to Confirm Justice Kethledge

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Or Justice Sykes or Justice Pryor or Justice Gorsuch, etc.

It has become reasonably clear that the Democrats will filibuster anyone Mr. Trump nominates.  They will do this by declaring such a person "outside the mainstream," which means simply outside the sort of "mainstream" that embraces a Constitution that meanders with the fashion of the day.  And we all know the fashion of the day gets dictated by the same groups that now support [Ed. note:  I first said "bring us"] Black Lives Matter, expansive drug legalization, and the narrative of America as a callous and racist cauldron.

In other words, there will be a filibuster against anyone Trump will, or should, nominate.

Is there an effective strategy, short of the nuclear option (i.e., eliminating the filibuster) to get a sensible, mainstream conservative confirmed?

Yes, there is.  I'll call it the Middle Way.
The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.

The Scope of the Victory

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The Washington Post's coverage of Trump was as biased as I have seen during a campaign.  It did not outdo the NYT, but neither did it make much of an effort to resemble neutral journalism.  It was one snarky, condescending article after the next. I'm expecting oddles of sour grapes over the next few days.  For now, however, it does an accurate, short summary of the extent of Trump's victory:

Because his adopted party maintained its majorities in the Senate and the House, Trump can now advance a very ambitious agenda. He gets to pick Antontin Scalia's replacement, vindicating Mitch McConnell's decision to deny Merrick Garland a hearing and ensuring that the GOP will control all three branches of government. Because Barack Obama has relied so much on executive actions since the 2010 midterms, if he chooses, Trump can roll back many of the president's signature achievements. The Republican Congress can also use budget reconciliation to eviscerate Obamacare. TPP is definitively dead.

I want to emphasize especially the key role Sen. McConnell played in giving our country the opportunity, at least, to build on Justice Scalia's legacy rather than overrule it bit-by-bit.

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