Potential Judicial Picks from Texas

by Jonathan H. Adler

Among the judicial vacancies facing President Trump are two Texas seats on the U.S. Court of Appeals for the Fifth Circuit. According to the Texas Lawyer, a committee is about to begin work vetting potential nominees for these vacancies. Among those likely under consideration are Texas Supreme Court Justice Don Willett, U.S. District Court Judge Reed O’Connor, former Texas solicitor general James Ho, Texas Governor Greg Abbott’s deputy general counsel Andy Oldham, and two state appellate court judges, Michael Massengale and Brett Busby. Fifth Circuit court watcher Jason Steed thinks Willett and Ho are the leading candidates, and that seems to me like a reasonable initial assessment. Willett, after all, was on President Trump’s list of potential Supreme Court justices, and Ho is an accomplished and well-connected appellate lawyer who worked for Senator John Cornyn (R-TX).

This Day in Liberal Judicial Activism—February 15

by Ed Whelan

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

The Ginsburg Standard and the Schumer Double Standard

by Carrie Severino

Senate Minority Leader Chuck Schumer, a master of the double standard, has already embarrassed himself by attempting to rewrite history about the filibuster and invent a fictitious “60-vote standard” for the current nominee.  Not satisfied with his two Pinocchios for that fib, he’s now holding Judge Neil Gorsuch to a standard completely at odds with that applied to nearly all sitting members of the Court. As Gorsuch meets with more Senate Democrats today expect to hear him being held to unreasonable standards yet again as Senators cast about for some excuse to oppose this highly-qualified nominee with fans on both sides of the aisle.

The Senate historically was deferential in confirming the President’s judicial picks; it was only in the 20th century that the nominees were even asked questions, and it wasn’t until the Bork era that they faced serious partisan scrutiny.  The modern standard for nominees in answering questions during their confirmation hearings is the so-called “Ginsburg Standard.”  During her 1993 confirmation hearing, Justice Ruth Bader Ginsburg invoked her ethical obligation not to answer questions about cases likely to come before her on the Court.  Justice Ginsburg testified, “A judge sworn to decide impartially can offer no forecasts, no hints; for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”  Over the course of her hearing, Justice Ginsburg refused to answer nearly 60 questions out of concern for maintaining her judicial independence and impartiality.  Her reticence notwithstanding, Justice Ginsburg was overwhelmingly confirmed by a vote of 96-3.

Every subsequent nominee has followed the Ginsburg Standard.  Just a year after Ginsburg’s own confirmation, Justice Stephen Breyer stated, “I do not want to predict or commit myself on an open issue that that I feel is going to come up in Court.”  Chief Justice Roberts noted that this “has been the approach that all of the Justices have taken.”  Justice Alito similarly cited precedent and judicial ethics not to address questions that might come before the Court.  Justice Elena Kagan – despite having advocated for more candor from nominees when she was on the other side of the witness table – testified to the Senate Judiciary Committee that her “that it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that that might come before the Court in the future.”  Likewise in her hearing, Justice Sonia Sotomayor stated, “I can’t engage in a question that involves hypotheses.”

So it took veteran Court watchers by surprise when Senator Schumer faulted Gorsuch for not being willing to answer questions about hot legal topics including the constitutionality of a ban on Muslims, the Emoluments Clause of the Constitution, and about whether he had “grave concerns” about President Trump’s use of executive power.  After all, it doesn’t take a Constitutional law scholar to recognize that any of these issues could easily come before the Supreme Court in the future. 

Ginsburg Standard, meet the Schumer Double Standard.  Prior to Chief Justice John Robert’s confirmation hearing, Senator Schumer cited Roberts’ short time on the bench as one reason he should be more explicit about how he would rule in different cases.  However, when Justice Elena Kagan – who had never sat on any court – was before the Senate, he claimed that her judiciary questionnaire was so detailed they didn’t need to wonder what her judicial approach would be.  And while he mentioned cases to her that he personally disagreed with, he clarified that he didn’t expect her to comment on specific cases.  He didn’t ask Justice Sotomayor a single question about a case that might come before the Court.

It’s clear that, for Schumer, the overarching principle isn’t one of, well, principle.  It’s about the party of the nominee.  Last week on the Senate floor Senator Schumer said, “This new nominee to the Supreme Court has to pass a special test, in my opinion, of true independence from the President.”  That’s about as close as he will likely get to admitting his real objective: to hold Republican nominees to a stricter standard that he used for nominees of his own party.

This Day in Liberal Judicial Activism—February 14

by Ed Whelan

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Turow’s Reversible Errors—Part 2

by Ed Whelan

Continuing with my critique of Scott Turow’s Vanity Fair attack on Supreme Court nominee Neil Gorsuch (and numbering my points serially from my Part 1 post):

5. Turow scripts a set of questions for Senate Democrats to ask at Gorsuch’s hearing that will—get this!—“force[] [Gorsuch] to concede [Merrick] Garland’s qualifications” for a Supreme Court seat. E.g.:

In your view are you a better judge than Merrick Garland?

Do you have the same length of service as Judge Garland on the appellate court? (No)

Have you, like Judge Garland, served as the chief judge of the Circuit on which you sit? (No)

He even “expect[s]” that Republicans would “try to rule these questions about Garland somehow out of order” and that there might be a dramatic confrontation over them that should cause Senate Democrats to “get up and leave and boycott the confirmation process thereafter.”

All that Turow is showing is that he understands next to nothing about the confirmation process.

Earth to Turow: The very sound Republican strategy on the Scalia vacancy was established on the very day of Scalia’s death (exactly one year ago today, as it happens). It had nothing to do with Garland (even though it probably helped win him the nomination), and Republicans never disparaged Garland’s qualifications. As someone who has repeatedly stated my own admiration for Judge Garland, I am confident that it would not take any tricky cross-examination to get Gorsuch to avow the same. Nor would Republicans have the least concern about your oh-so-clever questions.

6. Turow also imagines that Gorsuch has “boxed himself in” to being questioned about his personal beliefs since “those beliefs, according to his own catechism, would not control how he would rule on the cases before him.”

So in Turow’s view, a Supreme Court nominee who says that his personal views will influence his judging can’t be asked about those personal views but a nominee who says that his personal views won’t influence his judging can be. On the basic measure of relevance, I can’t see how that distinction makes any sense.

In any event, Turow seems not to realize that all or nearly all Supreme Court nominees have put themselves in the same “box” that Turow imagines Gorsuch to be in. To take but one example, Elena Kagan stated at her hearing that “judging is about … how the law applies to [the] case, not how your own personal views, not how your own political views might suggest, you know, anything about the case.”

Moreover, insofar as the traditional practice of a nominee’s refusal to discuss personal views is justified, it rests heavily on the public interest in the appearance of judicial impartiality—an interest that would be disserved by a nominee’s expressing his personal views on contested issues, irrespective whether he says those view are or are not relevant to his judging.

7. Turow wants Democrats to use all possible weapons, including resorting to the filibuster (even if that means that Republicans will eliminate the filibuster). But, wait. I thought (see point 1 of my Part 1 post) that Turow insists that the Senate has a “constitutional mandate” to “allow a vote on whether or not to confirm” a Supreme Court nominee—​in other words, not to use the filibuster to prevent an up-or-down vote on the nomination.

Yes, Turow’s constitutional argument is insipid, but the fact that he would apply it (in the same essay, no less!) to the Garland nomination but not to the Gorsuch nomination shows what a hopeless hack he is.

8. Turow posits that Gorsuch might lead the Supreme Court not merely to overturn Roe v. Wade (and restore abortion policy to the democratic processes) but to go much further to establish “a constitutional right to life” that would amount to a “national ban on abortion.”

You see, Gorsuch wrote a dissertation and book that expressed his moral opposition to assisted suicide and “went on to suggest the possibility of a constitutionally enforceable right to life” against assisted-suicide laws. Plus, “assisted suicide is an obvious proxy for reproductive choice.” So we could be just around the corner from having a Supreme Court majority embrace a proposition that no justice has ever endorsed—and that Justice Scalia specifically rejected.

Turow’s Reversible Errors—Part 1

by Ed Whelan

In a piece for Vanity Fair titled “How the Democrats Can Stop Neil Gorsuch: And why they absolutely must,” lawyer-turned-novelist Scott Turow amply demonstrates that he’s more suited to fiction-writing than to legal analysis.

The author of Reversible Errors, Turow commits quite a few of his own:

1. Turow asserts that Supreme Court nominee Neil Gorsuch “is filling a seat that by any objective reading of the Constitution belongs to Merrick Garland.” He claims that Republicans, in declining to take any action on President Obama’s nomination of Garland, “read … out of the Constitution” the Appointments Clause set forth in Article II, section 2. In particular, he asserts that they “refused to fulfill [their] constitutional mandate” when they “refused to allow a vote on whether or not to confirm him.”

Far from being dictated “by any objective reading of the Constitution,” Turow’s gross misreading of the Appointments Clause is so “silly” and “obviously fatuous” that no reasonably well-informed person could intelligently advance it in good faith. As I have explained repeatedly, the Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything.

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So Turow’s claim that Republicans had a “constitutional mandate” to “allow a vote on whether or not to confirm” Garland has zero basis in the Constitution’s text and contradicts the Senate’s longstanding practice on nominations subject to the Appointments Clause.

But if you’re disinclined to think through this yourself and don’t want to take my word for it, how about (among countless others) liberal law professor, and Supreme Court confirmation expert, Michael Gerhardt or President Obama’s former White House counsel Kathryn Ruemmler?

2. In support of his assertion that Gorsuch is “extremely conservative,” Turow cites two studies. One, in the best tradition of modern junk social science, ranked the candidates on President Trump’s Supreme Court list by this “tried-and-true [insert hilarious laughter] approach”:

• If a judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.

• If both senators are from the president’s party, the judge is assigned the average ideology of the two senators.

• If neither home-state senator is from the president’s party, the judge receives the ideological score of the appointing president.

So, you see, don’t bother actually trying to take a serious look at Judge Gorsuch’s judicial record over ten years. You can just assign him the “ideology” of Wayne Allard, who was the Republican senator from Colorado when George W. Bush appointed Gorsuch.

The second “study” that Turow finds so probative looks only to the “political donations made by federal judges before taking their seats.” Such donations may surely offer some insight (even if imperfect) into a judge’s preferences for political candidates, but it’s difficult to see why anyone would look to them to measure a judge’s judicial record.

3. Turow complains of the “rank partisanship” of the National Review essay that Gorsuch wrote in 2005 lamenting the Left’s “overweening addiction to the courtroom as the place to debate social policy.” Never mind that Gorsuch was expressly endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal.” What Turow finds “infuriating” is that Gorsuch failed to “recognize that conservatives have been equally, if not more guilty[,] of the same thing”—and Turow cites the “conservative effort to eradicate gun control, to allow for unlimited campaign spending, [and] to overturn Obamacare” as examples.

I’ll pass over for now the merits of Turow’s examples and limit myself to the observation that I don’t see how he can fault Gorsuch for writing an essay in 2005 that fails to address or distinguish conservative litigation efforts that occurred (or at least became prominent) only years later.

4. Turow imagines that Gorsuch’s “supposed sympathy to [sic] legislative judgments” is belied by his Tenth Circuit vote in the Hobby Lobby case. But Turow gets Hobby Lobby wrong.

Turow says that Gorsuch “struck down on grounds of freedom of religion those provisions of the Affordable Care Act that obligated employers to pay for their employees’ contraceptive care.” The trusting reader would think that Gorsuch ruled that a provision in Obamacare violated the First Amendment’s Free Exercise guarantee. But the HHS contraceptive mandate was an Obama administration regulation, not a statutory provision. And Gorsuch and his Tenth Circuit colleagues ruled (as the Supreme Court majority did) on the basis of the federal Religious Freedom Restoration Act, not the First Amendment. Further, they did not strike down the regulation; they held merely that RFRA meant that it could not be applied to Hobby Lobby.

In short, contrary to Turow’s confusion, Hobby Lobby illustrates Gorsuch’s respect for “legislative judgments.”

More in Part 2.

Anniversary of Justice Scalia’s Death

by Ed Whelan

Today marks the first anniversary of Justice Scalia’s death. I encourage you, if you are so disposed, to use the occasion to pray for the repose of his soul and for the continuing consolation of Mrs. Scalia and the Scalia family.

On National Review Online’s home page, former Scalia clerk Ryan J. Walsh has an excellent essay in which he presents “five life lessons” that he learned from this “profoundly good man.”

This Day in Liberal Judicial Activism—February 13

by Ed Whelan

2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

This Day in Liberal Judicial Activism—February 12

by Ed Whelan

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.


Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

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.

Trump’s First Appellate Judicial Pick?

by Jonathan H. Adler

All eyes may be on President Trump’s nomination of the Honorable Neil Gorsuch to the Supreme Court, but there are over one hundred additional vacancies on the federal courts. At some point, President Trump will have to begin selecting lower court judges. Is it too soon to speculate on who these nominees might be? Perhaps, but if pundits can talk about the 2020 presidential race (as some have), we can indulge at least a little speculation.

One of President Trump’s first nominations to the appellate bench may be one of the finalists for the Supreme Court nomination: Judge Amul Thapar, who currently sits on the federal district court for the Eastern District of Kentucky. According to numerous reports, Judge Thapar was one of a handful of potential nominees who met with the President, largely at the urging of Senate Majority Leader Mitch McConnell. In addition to being a federal judge, Thapar is a former U.S. Attorney. He has substantial private sector experience and has taught at law schools on the side.

Among the current appellate vacancies is a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit. An additional Kentucky seat will open up at the end of this month. With McConnell in his corner, this would seem to make Judge Thapar a near shoo-in for a seat on the Sixth Circuit. So later this spring, when the White House unveils its first slate of appellate nominations, do not be surprised to see Judge Thapar on the list.

Cooper Out for Solicitor General

by Jonathan H. Adler

Politico reports that Chuck Cooper, a former Justice Department official who is close with Attorney General Jeff Sessions, has withdrawn his name for consideration as Solicitor General. The story quotes Cooper’s statement:

I am deeply honored by any consideration that I may have received by Attorney General Sessions and President Trump for appointment as the Solicitor General, but I have asked them to discontinue any further consideration of me for that critically important position

As I noted here, the other leading candidate for the position has been George Conway, a prominent New York litigator who is also Kellyanne Conway’s husband. Unless a dark horse emerges, it would seem that he is likely to be the next SG.

Update: According to this CNN report, in addition to Conway, there are two other prominent conservative attorneys under consideration to be Solicitor General, Christopher Landau and Kannon Shanmugam.

This Day in Liberal Judicial Activism—February 10

by Ed Whelan

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

This day in Liberal Judicial Activism—February 9

by Ed Whelan

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

Shameless Schumer

by Ed Whelan

Never mind (as I noted last week) that the Washington Post’s Fact Checker, Glenn Kessler, has already explained that there is not, and never has been, a 60-vote “standard” for Supreme Court nominees. Senate minority leader Chuck Schumer continues to propagate the silly notion that such a standard exists.

For seven of the eight current Supreme Court justices, the senators unanimously consented to affording them a straight up-or-down vote. The lone exception was Samuel Alito, whose nomination then-Senator John Kerry tried to filibuster from the ski slopes of Davos, Switzerland. So while there is one recent precedent for an irresponsible Democratic filibuster effort against a superbly qualified nominee of a Republican president, there is no broader practice that supports Schumer’s talk of a 60-vote “standard.”

To be sure, Schumer remains free to try to rally his fellow Democrats to filibuster the Gorsuch nomination. As I’ve explained, all things considered, I’d be happy to see him try. But Schumer’s effort to pretend that this wouldn’t be an extraordinary step shouldn’t be taken seriously by anyone.

Senator Shaheen: No Filibuster of Gorsuch

by Ed Whelan

On the Senate floor yesterday evening, Democratic senator Jeanne Shaheen of New Hampshire strongly declared that neither she nor any of her fellow Democrats she’s “talked to” have any intention of filibustering the Gorsuch nomination. Here’s the Congressional Record transcript of her remarks (page S845):

I wanted to respond to my colleague from South Dakota because I think for Senator Thune to come to the floor and castigate Democrats for holding up Judge Gorsuch, who has just been nominated, and for suggesting we are going to filibuster, the fact is, throughout most of last year we saw the Republican majority in this body hold up the nominee of Merrick Garland, President Obama’s nominee.

For the first time in history [sic -- not true], this body refused to hold a hearing on a nominee for the Supreme Court, refused to give an up-or-down vote, and to suggest that we should not get a fair hearing on the nominee to the Supreme Court — Judge Gorsuch — I think is just not [something that's]* going to be good for the American people.

Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote. Everybody I have talked to agrees he should get a hearing and an up-or-down vote. [Emphasis added.]

And here’s a video that captures the last part:

This would seem to be “game over” for any Democratic filibuster effort.

I will note that Shaheen’s communications director promptly insisted on Twitter that Shaheen didn’t mean what she said and that by “up-or-down vote” she “meant a cloture vote”! So it’s possible that Shaheen will try to backtrack.

* As the video shows, the transcript is mistaken when it says “someone who is” (which makes no sense).

Does Anyone Really Not Understand This?

by Ed Whelan

On SCOTUSblog, law professor Michael Gerhardt offers a good primer on what lies ahead for Judge Neil Gorsuch in the confirmation process. Gerhardt, who teaches constitutional law, has advised the Clinton White House and Senate Democrats on various Supreme Court confirmation battles.

Because the elementary point is somehow still contested by some, I will highlight that Gerhardt recognizes that Senate Republicans had the constitutional power to defeat the Garland nomination by inaction (even as he opposed their strategy):

The Constitution barely sketches the process for making Supreme Court appointments. Article II provides the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Besides the fact that Article I empowers each chamber of Congress “to determine rules” for its internal governance, the Constitution confers discretion on the president and the Senate over how to exercise their respective authorities.…

Once there has been a Supreme Court nomination, senators can exercise their “Advice and Consent” authority in several ways. They can withhold their advice and not undertake any other action, as the Senate did with President Barack Obama’s nomination of the highly regarded judge Merrick Garland to the seat opened as a result of the death of Justice Antonin Scalia almost a year ago. They can defer to presidents, as they did in approving all nine of President Franklin Roosevelt’s Supreme Court nominations. They can hold hearings and decide to take no further action, as occurred when the Senate could not invoke cloture to stop a filibuster against President Lyndon Johnson’s nomination of then-Justice Abe Fortas as Chief Justice of the United States. They can hold hearings and vote against the nomination, as the Senate did when it rejected President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987. They can hold hearings and approve the nominations, as the Senate has done since 1900 with virtually every Supreme Court nominee with strong credentials and mainstream constitutional views. [Emphasis added.]

Just one observation on Gerhardt’s repeated “They can hold hearings and …” line. As I’m sure Gerhardt would agree, and as is implicit in his first paragraph, senators don’t have to hold hearings in order to proceed on a Supreme Court nomination. The Constitution says nothing about Senate committees or hearings, and no hearing on a Supreme Court nominee took place before 1916. That said, the hearing is now a routine and accepted feature of the process (and my clarification here certainly isn’t intended to suggest that it be bypassed).

ACLU’s Disabled Review of Gorsuch

by Ed Whelan

Well, this is curious.

On the ACLU’s website, Claudia Center has a piece claiming, as its title blares, that “Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases.” Center invites “attention to [Judge Gorsuch’s] decisions on disability rights” and says that two of his cases “stand out.”

Oddly, though, Center doesn’t provide links to either of the two cases that she says she wants to draw attention to (even as she includes several other links). Gee, why might that be?

Perhaps because anyone looking at Gorsuch’s two supposedly “troubling” opinions would readily discover that each was unanimous and that each was joined by a very liberal Clinton appointee (Carlos Lucero in one, Mary Beck Briscoe in the other). Perhaps because anyone reading those opinions would discover that Center’s account of them is not trustworthy.

Let’s first consider Gorsuch’s opinion in Hwang v. Kansas State University (joined by Lucero).

The plaintiff in the case, Grace Hwang, was an assistant professor at Kansas State. Upon learning before the fall term that she needed treatment for cancer, she sought, and Kansas State gave her, a six-month paid leave of absence. As that six-month period was expiring, she sought additional leave through the entire spring semester. Kansas State refused, and Hwang sued under the federal Rehabilitation Act, claiming that she had been discriminated against on the basis of disability.

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, Hwang had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. (By contrast, Gorsuch spells out, “an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job,” and “allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation.”)

No one who reads Center’s account of the case would understand any of this. Center would have us believe that Hwang asked merely “for further short leave” because of a “flu epidemic” on campus. But Gorsuch’s opinion makes clear that Hwang wanted the entire spring term off and that she was complaining that she wasn’t being treated the same as those university employees who were eligible for “sabbaticals lasting up to a year.”

The second case that Center criticizes is Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. (joined by Briscoe). 

Gorsuch’s opinion ruled that parents who withdrew their autistic son, Luke, from a public school in order to place him in a private residential program were not entitled under the Individuals with Disabilities Education Act to recover from the school district reimbursement of their tuition expenses for the residential program. Specifically, Gorsuch’s opinion determined that the public school had been providing Luke a “free and appropriate public education” (“FAPE”) that satisfied the statute.

Although you wouldn’t know it from Center’s account, Gorsuch’s opinion steadfastly sought to follow the Supreme Court’s 1982 precedent of Board of Education v. Rowley, citing it some twenty times. Here’s one excerpt (some citations and footnotes omitted):

How do we know when a school district has or has not provided a disabled student with a FAPE? To be sure, the term is hardly self-defining. Fortunately, however, the statute and Supreme Court afford some additional direction, indicating that we must ask, more specifically, whether Luke’s December 2003 IEP [“individualized education program”] was “reasonably calculated to enable [him] to receive educational benefits,” Bd. of Educ. v. Rowley, 456 U.S. 176, 207 (1982). If the IEP was so calculated, the school district can be said to have provided a FAPE; if not, then not.

The Supreme Court has further explained that this standard is not an onerous one. “Congress did not impose upon the States any greater substantive educational standard than would be necessary to make … access meaningful․ [T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. So, for example, the Court found no support in the text or history of the Act for the proposition that Congress sought to guarantee educational services sufficient to “maximize each child’s potential.” Id. at 198. Instead, we are told, Congress sought only to require a “‘basic floor of opportunity,’” id. at 200, aimed at providing individualized services sufficient to provide every eligible child with “some educational benefit,” id. (emphasis added). We are also reminded that the “primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Id. at 207. From this direction, we have concluded that the educational benefit mandated by IDEA must merely be “more than de minimis.”

As Center notes, the question of what counts as a “free and appropriate public education” is pending before the Supreme Court, and it is certainly possible that the Court will revisit what Rowley means. But when Center complains about the allegedly “narrow and outdated standard used by Judge Gorsuch,” she obscures the critical point that Gorsuch (and Briscoe) reasonably drew that standard from the Supreme Court’s decision in Rowley.

My limited point here is not to argue that Gorsuch’s opinion was clearly correct. (That would take a lot more work, both for me and for you.) Rather, it is to highlight that an opinion that strives to hew to longstanding Supreme Court precedent and that is joined by a liberal Clinton appointee is a remarkably weak reed on which to base a claim that Gorsuch’s record on disability cases is “troubling.” (Nancy Pelosi has also tried to use this case against Gorsuch; David Freddoso has critiqued her folly.) 

Thank You, Vice President Pence

by Ed Whelan

At Congress Hall in Philadelphia last Saturday, Vice President Mike Pence delivered a powerful speech (full C-Span video here) in support of Supreme Court nominee Neil Gorsuch. In his speech, Pence kindly cited and quoted me:

Two American Constitution Society Leaders Support Gorsuch

by Ed Whelan

From 1995 to 2005, Supreme Court nominee Neil Gorsuch practiced law at the elite D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Here’s a powerful letter from dozens of his former law partners, “Democrats, independents, and Republicans” who “represent a broad spectrum of views on politics [and] judicial philosophy” but who “all agree on one thing”: Neil Gorsuch “is superbly qualified” for the Supreme Court and “is a man of character, decency, and accomplishment.”

Notable among the letter’s signatories are two individuals who are part of the “leadership” of  the American Constitution Society (the left-wing counterpart to the Federalist Society)​: David Frederick, a member of ACS’s board of directors, and Geoffrey Klineberg, a former Blackmun clerk who is on ACS’s board of advisors (and was formerly on its board of directors).

Some further excerpts from the letter:

Throughout his time with us, Neil demonstrated both a powerful intellect and a sterling character. In every aspect of his private practice, Neil excelled. He was a skilled and creative trial lawyer, a legal draftsman of concision and wit, and above all else a wonderful colleague who devoted himself fully to the best interests of our clients and was a pleasure to work with.

We saw Neil in times of professional triumph as well as in times of disappointment. Through highs and lows he was steadfast: courteous, collegial with co-counsel and adversaries, respectful of courts and the rule of law itself. He was as considerate and respectful of the night guard at our trial office in Paducah, Kentucky, as he was of captains of industry. He never displayed bias or hostility against anyone, and earned friends and admirers wherever he went.

Neil’s equal regard for everyone extended to his work as a litigator. He zealously represented all of his clients – plaintiffs and defendants, individuals and corporations, nonprofits and small businesses, paying clients and pro bono clients – without regard to ideology. For Neil, each client deserved the best arguments that could be mustered, consistent with the facts and the law.…

Neil is not only a good and humble man, he is also an outstanding jurist. We are fully confident that he will decide cases on principled grounds; that he will work tirelessly to get each case right, on its particular merits; that he will be thoughtful about the views of his colleagues, and will deliberate respectfully and productively to reach consensus where that is possible; and that he will demonstrate the integrity and ability that we all saw in our years as his colleagues.