Judiciary

Quote of the Day

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.”

— Attorney General Jeff Sessions, quoted by CNN, criticizing a federal judge in Hawaii that has blocked President Trump’s travel ban.

Why Gorsuch May Quickly Adapt to the Supreme Court

New York Times: “Justices interrupt one another all the time, and it may not be easy for the new justice to find his place and to raise his voice this week, when he hears his first arguments. But a new study suggests that Justice Gorsuch has two things going for him: He is conservative, and he is male.”

From the study: “Conservatives interrupt liberals at significantly higher rates than liberals interrupt conservatives.”

“And male justices, perhaps not surprisingly, interrupt female justices far more often than the other way around.”

Roberts Could Soon be the Supreme Court Swing Vote

Rick Hasen: “Even before the Senate confirmed Neil Gorsuch as a justice of the Supreme Court, and before it “nuked” the filibuster for nominees, the Trump administration and conservatives were already plotting to fill the next vacancy. Indeed, they have made overtures to swing Justice Anthony M. Kennedy to get him to feel comfortable with retirement.”

“If Kennedy goes, or if a liberal justice gets sick or dies, Democrats have few levers to stop Republicans from confirming a nominee even more conservative than Gorsuch. The future, then, holds a Supreme Court where Chief Justice John G. Roberts Jr. is the swing vote — a scary eventuality for progressives.”

Democrats Have No Regrets Over Nuclear Option

“Democrats heard the argument throughout the Senate’s bitter debate over Neil Gorsuch: Don’t filibuster this Supreme Court nominee — save your leverage for President Trump’s next pick, the one who could change the court’s balance of power for a generation. But most Democrats decided that holding their fire this time would make no difference in the end,” Politico reports.

“Trump would choose the judges he wants, without regard to how Democrats might react, they concluded. And Majority Leader Mitch McConnell was intent on blowing up the filibuster for high court nominees, if not now, then next time in order to maintain the GOP’s grip on the court. His unprecedented blockade of Merrick Garland, Barack Obama’s Supreme Court nominee, made that clear, they believed.”

“So if Democrats were going to lose the filibuster regardless, best to go down swinging now on a nominee many found far too conservative — a move that would also please a liberal base still spoiling for a fight against Trump.”

A Partisan Supreme Court

Rick Hasen: “I’ve noted before that these days all the liberals on the Court have been appointed by Democratic presidents and all the conservatives on the Court by Republican presidents. This wasn’t true until Justice Stevens retired.”

“With today’s confirmation of Neil Gorsuch to the Supreme Court, not only does the trend continue but it is likely to accelerate thanks to the use of the nuclear option.”

“We can expect Republicans to pick reliably very conservative nominees when there is a Republican president and Senate, and Democrats to pick reliably liberal nominees when there is a Democratic president and Senate. (We well may have stalemate, as we had with Merrick Garland, when government is divided.)  There will be less need to pick someone who can satisfy a handful of the other side given the loss of the filibuster.”

Senate Confirms Gorsuch to the Supreme Court

Judge Neil Gorsuch “was confirmed by the Senate on Friday to become the 113th justice of the Supreme Court, capping a political brawl that lasted for more than a year and tested constitutional norms inside the Capitol’s fraying upper chamber,” the New York Times reports.

“The development was a signal triumph for President Trump, whose campaign last year rested in large part on his pledge to appoint another committed conservative to succeed Justice Antonin Scalia, who died in February 2016.”

Washington Post: “Gorsuch is expected to be sworn-in in the coming days, allowing him to join the high court for the final weeks of its term, which ends in June. It’s likely he will want to be sworn-in quickly — even if a ceremonial event is held later — so that he can get to work.”

White House Strategizing Over Next Court Vacancy

Politico: “While the White House is focused this week on shepherding Trump’s first Supreme Court nominee, Neil Gorsuch, through the Senate confirmation process, the president and his team are obsessed with the next possible vacancy.”

“The likeliest candidate is Kennedy, who has sat at the decisive fulcrum of the most important Supreme Court cases for more than a decade. Replacing him with a reliable conservative would tip the court to the right, even if no other seat comes open under Trump — whose team has taken to exploring every imaginable line of communication to keep tabs on the justice and to make him comfortable as he ponders a potential retirement.”

Gorsuch Apparently Plagiarized Passages in Book

Supreme Court nominee Neil Gorsuch “copied the structure and language used by several authors and failed to cite source material in his book and an academic article,” Politico reports.

“The documents show that several passages from the tenth chapter of his 2006 book, The Future of Assisted Suicide and Euthanasia, read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them.”

A White House statement: “There is only one explanation for this baseless, last-second smear of Judge Gorsuch: those desperate to justify the unprecedented filibuster of a well-qualified and mainstream nominee to the Supreme Court.”

Gorsuch Could Be Key to Holding GOP Majorities

James Hohmann: “On paper, this is a golden age for the GOP. There are 33 Republican governors, the most since 1922. In 25 states now, Republicans have unified control of the governorship and legislature. Iowa, Kentucky, Missouri and New Hampshire joined that club last November when the GOP took control of five more House chambers and two more Senate chambers. Today there are 4,195 Republican state legislators, compared to 3,132 Democrats.”

“Gorsuch, once confirmed, will be well positioned to provide the decisive vote on a host of issues that might help cement this Republican hold on power, or at least give the party a leg up in future elections. He could vote to allow states to restrict voting, give more leeway to partisans in the round of redistricting that will begin after the 2020 election and further loosen campaign finance limitations. Don’t forget Bush v. Gore, when the Supreme Court – on a party-line vote – delivered the presidency to George W. Bush.”

McConnell’s Huge Gamble Is About to Pay Off

“When Neil Gorsuch is confirmed to the Supreme Court this week, Mitch McConnell will clinch a place in history after pulling off one of the most audacious gambles in modern political history,” Politico reports.

“The immediate payoff to the Republican Party is enormous and indisputable, starting, of course, with another staunch conservative on the court who could remain there for decades. But Republicans also credit McConnell with saving the Senate majority and electing President Donald Trump, by giving traditional conservative voters a powerful motivator to turn out for a nominee they were less than enthused about.”

Wall Street Journal: “The likely rules change is causing consternation in both parties about the health of the Senate as an institution, but few members can see a way out of the current partisan showdown.”

Senate Democrats Have the Votes to Block Gorsuch

Senate Democrats “appeared to secure the votes necessary to filibuster the Supreme Court nomination of Judge Neil Gorsuch, sending the body hurtling toward a bitter partisan confrontation later this week,” the New York Times reports.

“With an announcement from Sen. Christopher Coons (D-DE) during the Senate Judiciary Committee’s hearing to vote on Judge Gorsuch’s nomination, Democrats had found their 41st vote in support of a filibuster. The Senate Judiciary Committee was poised to approve the nomination later on Monday in a likely party-line vote to move President Trump’s selection to the Senate floor.”

“If the filibuster holds, Republicans have hinted strongly that they will pursue the so-called nuclear option, changing longstanding practices to elevate Judge Gorsuch on a simple majority vote.”

Schumer Says Gorsuch Won’t Get 60 Votes

Senate Minority Leader Chuck Schumer (D-NY) predicted that “it looks like Neil Gorsuch will not reach the 60-vote margin” needed to overcome a filibuster in the Senate, NBC News reports.

If there aren’t 60 votes, Republican Senate Majority Leader Mitch McConnell (R-KY) could use the “nuclear option,” changing Senate rules so only 51 votes would be necessary to confirm the nominee.

McConnell responded: “What I can tell you is Neil Gorsuch will be confirmed this week … how that happens will depend on our Democratic friends.”

McCaskill Won’t Support Gorsuch Nomination

Sen. Claire McCaskill (D-MO) “will vote to filibuster Neil Gorsuch, becoming the 36th Democratic senator to vow to block President Donald Trump’s Supreme Court nominee from confirmation,” Politico reports.

“McCaskill’s announcement Friday pushes the Senate ever-closer to a major confrontation next week over the chamber’s rules. If Democrats can secure five more votes to deny Gorsuch the 60 votes he needs to advance, Senate Majority Leader Mitch McConnell (R-KY) is likely to gut the supermajority requirement on Supreme Court nominees using the ‘nuclear option.'”