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 www.facebook.com/EdWhelanEPPC.

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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.)

‘Former Client Recommended Gorsuch for Tenth Circuit’

by Ed Whelan

The headline above surely isn’t as attention-grabbing, much less as conspiracy-mongering, as the actual headline on this New York Times article—“Neil Gorsuch Has Web of Ties to Secretive Billionaire”—but it does strike me as markedly more accurate.

For starters, the article itself describes the billionaire in question, Philip F. Anschutz, merely as “publicity-shy” rather than “secretive.” And if the NYT reporters wanted to learn more about Mr. Anschutz, they might have been able to get a useful lead or two from their own editorial-page editor James Bennet, whose brother, current Colorado senator Michael Bennet, worked for Anschutz for years.

But, more importantly, here’s the core of what the supposed “web of ties” between Gorsuch and Anschutz is alleged to consist of:

As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.

Two observations:

1. The article’s claim that Mr. Anschutz “successfully lobbied … the Bush administration to nominate Judge Gorsuch to the federal appeals court” strikes me as curious phrasing. To be sure, a lawyer for Anschutz sent a letter on his behalf to the White House recommending that Gorsuch be nominated. But are we really supposed to believe that the Bush White House, on the lookout for bright young conservatives to appoint to the federal bench, had to be “lobbied” by Anschutz to select Gorsuch?

Gorsuch, after all, was serving at the time in the Department of Justice as the principal deputy associate attorney general. As a former D.C. Circuit and Supreme Court law clerk who practiced law in D.C., he was well known in conservative legal circles. And as a native Coloradan and former clerk to Byron White, he was an obvious pick for the Tenth Circuit vacancy that opened up in Denver.

As it happens, someone in the Bush administration who was very involved in the process that led to the nomination of Gorsuch tells me that, as far as he recalls, Anschutz’s name never came up during the process. What he does recall is that the idea to nominate Gorsuch arose during the normal interplay between the White House Counsel’s office and senior DOJ leadership, and that both the White House and DOJ immediately responded enthusiastically.

2. The article’s claim that Mr. Anschutz “sought to secure [the Tenth Circuit seat] for [Gorsuch]” sounds nefarious. But it’s far more plausible that Anschutz simply recognized Gorsuch to be, as the letter puts it, “an exceptionally talented lawyer” who would make an excellent judge.

What, after all, could possibly have been in it for Anschutz? He lost his past (and potential future) lawyer to the Tenth Circuit, where Gorsuch (as Anschutz and his top legal team would surely have foreseen) regularly recused himself from all matters involving Anschutz and his companies. That’s hardly the stuff of a conspiracy.

Disclosure: As its publicly available tax returns show, the Anschutz Foundation has generously supported the Ethics and Public Policy Center, the think tank I run. For example, this return—the most recent I have been able to find quickly in searchable format—reflects a $20,000 contribution in 2012.

The Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

by Ed Whelan

In her opening statement at her 1993 confirmation hearing (transcript here), Ruth Bader Ginsburg explained that she could “offer no forecasts, no hints” on how she might rule on issues that might come before the Supreme Court:

You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. 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. [Emphasis added.]

As she put it later in responding to a question about possible constitutional protections against discrimination based on sexual orientation:

I cannot address that question without violating what I said had to be my rule about no hints, no forecasts, no previews. [Emphasis added.]

Instead, she explained, the Senate should “judge [her] qualifications principally on [her] written record” of judicial rulings, briefs, and articles,” and she was happy to discuss those at her hearing.

Senator Schumer Attacks Rule of Law

by Ed Whelan

Senate Democratic leader Chuck Schumer’s press conference today (ongoing as I write this) with supposed victims of Judge Gorsuch’s principled judicial decisionmaking is a stupid stunt that highlights that so many on the Left have a completely results-oriented approach to judging.

Liberal Harvard law professor Noah Feldman soundly denounces this whole line of attack as a “truly terrible idea” that contradicts the “whole point of a rule-of-law system.” As Feldman explains, the rule of law means that judges are “to decide cases under the law, not based on preferences for individuals.”

Schumer himself used to understand this (or at least to pretend to). Indeed, his opening statement at Justice Sonia Sotomayor’s confirmation hearing (see pages 24-25 of transcript) is replete with praise for her “hew[ing] carefully to the text of statutes, even when doing so results in rulings that go against sympathetic litigants”:

[S]he has ruled for the government in 83 percent of immigration cases against the immigration plaintiff, she has ruled for the government in 92 percent of criminal cases, she has denied race claims in 83 percent of cases and has split evenly on employment cases between employer and employee.…

In a case involving a New York police officer who made white supremacist remarks, she upheld his right to make them.

In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it.

So why is Schumer abandoning the rule of law in attacking the Gorsuch nomination?

Judicial Conference Calls for More Judges

by Jonathan H. Adler

The Judicial Conference of the United States is recommending that Congress create several dozen additional seats on the federal judiciary. Specifically, the Judicial Conference is calling for the creation of five new seats on the U.S. Court of Appeals for the Ninth Circuit, and 52 federal district court seats in parts of the country that have seen a dramatic increase in filings. The Conference also suggests that Congress could leave one seat open on the U.S. Court of Appeals for the Tenth Circuit, due to a low caseload. According to the Judicial Conference, Congress has not enacted “comprehensive judgeship legislation” in over twenty-five years.

Were Congress to follow the Judicial Conference’s advice, this would give President Trump more judicial seats to fill, primarily on federal district courts. I doubt that Congress is in any rush to increase the size of the U.S. Court of Appeals for the Ninth Circuit, however. That Court is already an unwieldy size. A more likely — and, perhaps, more controversial — course would be to create new appellate judgeships in conjunction with splitting the Ninth Circuit into two more-regular-sized courts, as has been proposed by Senator Jeff Flake, among others.

There are also members of Congress that wish to add seats to the U.S. Court of Appeals for the D.C. Circuit, in part to rebalance the court after then-Senate Majority Leader Harry Reid forced through all of President Obama’s nominations to the court. The problem with this idea is that the D.C. Circuit is in no need of additional judges. If anything, it has more than its current caseload requires. To be defensible, any increase in the D.C. Circuit’s size would have to be combined with an expansion of its jurisdiction. In all likelihood, the D.C. Circuit’s size will remain at eleven active judges.

This Day in Liberal Judicial Activism—March 15

by Ed Whelan

1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

 

2016—No plaintiff? So what?

 

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.” 

 

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”

This Day in Liberal Judicial Activism—March 14

by Ed Whelan

2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism:

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas. 

Democrats’ Empty Case Against Gorsuch

by Ed Whelan

This New York Times article on Democrats’ “most prominent planned line of attack” on Supreme Court nominee Neil Gorsuch shows that they have no ammunition.

Here’s how the article sums up the Democrats’ two-pronged attack:

[1] Judge Gorsuch’s rulings have favored the powerful and well connected. [2] And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process. [Bracketed numbers added.]

Let’s consider these two prongs:

1. In the article, Democrats manage to cite a grand total of three cases (out of some three thousand during Gorsuch’s judicial career) in support of their charge:

a. “In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.”

As I’ve explained in this extended account, the legal question in the case was whether a whistleblower provision that protects a driver when he “refuses to operate a vehicle” because of safety concerns protected a trucker who (as Gorsuch put in in his dissent) “chose instead to operate his vehicle in a manner he thought wise but his employer did not.” As Gorsuch points out, “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.” Nor is there any law giving judges free rein to second-guess whether an employer’s decision to fire an employee “was a wise or kind one.”

In short, Gorsuch was dispassionately applying the law.

b. “In another [case], he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school.”

I addressed this case in the second half of this post. I’ll note briefly here that Gorsuch’s opinion was unanimous, that it was joined by a very liberal Clinton appointee (Mary Beck Briscoe), and that it steadfastly sought to follow a 1982 Supreme Court precedent that it cited some twenty times. So it’s difficult to see how Democrats could make effective use of this case.

c. “Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was ‘in no way of her own making,’ it was ‘a problem other forms of social security aim to address.’”

I addressed this case in the first half of this post. Once again, we have a unanimous Gorsuch opinion joined by a very liberal Clinton appointee (Carlos Lucero this time). (The article notes this, but oddly doesn’t do the same for the autism case.)

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, the professor 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. 

d. As the article notes, “Judge Gorsuch’s defenders have accused Democrats of cherry-picking.” At his hearing, Gorsuch and Senate Republicans will have plenty of cases to cite to show that Gorsuch neutrally applies the law.

It’s not Gorsuch’s job to be a “friend of the little guy” (as the article’s headline sums up the Democrats’ position) or a friend of the big guy or a friend of any party. So, yes, individuals whose plights win our sympathy will lose their cases when they have weak legal claims. That’s what the rule of law means.

e. Democratic leader Chuck Schumer, of course, doesn’t get it (or at least pretends not to). He complains that Gorsuch “sort of expresses sympathetic words in many of these cases, but then his decision is coldly—he would say pragmatic, we would say coldly—on the side of the big interests.”

No, Senator Schumer, Gorsuch would not “say pragmatic.” Gorsuch soundly rejects the notion that judges have broad discretion to read statutes in furtherance of their own assessments of what is “pragmatic.” Gorsuch would instead say that he was striving to apply the law dispassionately in these cases. And any fair reading of them would support his account.

2. Democrats’ second charge can be readily disposed of. No one who knows Judge Gorsuch or who has examined his record with care has any basis for concern that he will exercise proper judicial independence, whether from President Trump or from any other political considerations. That’s obviously part of the reason why the ABA’s judicial-evaluations committee gave Gorsuch its “strongest affirmative endorsement.”

Democrats, I gather, will try to fault Gorsuch for not speaking out against various things that President Trump has said or done. But the idea that it’s incumbent on, or proper for, a Supreme Court nominee—who is also a sitting federal judge—to inject himself into political disputes is a very odd one.

In short, this second line of attack, like the first, will operate primarily to show that Democrats don’t understand the proper role of a judge.

(By the way, my posts on the Gorsuch nomination are being compiled on this single page, for easy searching.)

This Day in Liberal Judicial Activism—March 13

by Ed Whelan

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.


Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”


In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”  

 

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violated the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

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.

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Leading Members of Supreme Court Bar Endorse Gorsuch

by Ed Whelan

Members of the Supreme Court bar who collectively* “have argued more than 500 cases before the Court” and who “hold a broad range of political, policy, and jurisprudential views” have signed a letter to the Senate Judiciary Committee stating that they “are unified in offering our support of Judge Gorsuch’s nomination.”

Prominent liberal signatories include former Stanford law school dean Kathleen M. Sullivan, American Constitution Society board member David C. Frederick, and Lisa Blatt (head of Arnold & Porter’s Supreme Court practice).

* I will note that the 30 or so signatories include two wannabes—two GOP-affiliated attorneys from the same law firm who are eager to be in the company of leading members of the Supreme Court bar but who between them have argued a grand total of one case before the Court. 

ABA Committee Unanimously Awards Gorsuch Its ‘Strongest Affirmative Endorsement’

by Ed Whelan

The American Bar Association’s Standing Committee on the Federal Judiciary has unanimously awarded Supreme Court nominee Neil Gorsuch its highest rating of “Well Qualified.”

Here’s the Committee’s fuller explanation (emphasis added) of what “Well Qualified” means for a Supreme Court nominee:

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.

Diverse Group of Law School Classmates Support Gorsuch

by Ed Whelan

Dozens of Neil Gorsuch’s Harvard Law School classmates—“Democrats, Republicans, Libertarians and independents; progressives, conservatives and moderates; religious and non-observant; married, single and divorced; men and women; straight and gay”—have signed a powerful letter setting forth why they support his Supreme Court nomination.

Among the signatories is prominent Democrat Norm Eisen, who was special counsel for ethics in President Obama’s White House (as well as ambassador to the Czech Republic).  

Excerpts from the letter:

[W]e attended law school with Judge Neil Gorsuch—a man we’ve known for more than a quarter century—and we unanimously believe Neil possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the United States Supreme Court….

Judge Neil Gorsuch is a person for all seasons. For Republicans, Neil personifies a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by his decisions. For Democrats, he is a reasonable, qualified, intelligent person who will give each case fair and impartial consideration on its merits with sensitivity to our nation’s history, values, aspirations and constitutional traditions. For all Americans, he is a person of integrity who respects the rule of law and will ensure that it applies equally to all.