The Nomination of Judge Gorsuch to the Supreme Court

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Lawyer 2 Lawyer – Law News and Legal Topics

The Nomination of Judge Gorsuch to the Supreme Court

02/17/2017

Michele Jawando: The Supreme Court and whoever we decided to sit on the Supreme Court shouldn’t be chosen via litmus test and promise votes in particular areas of the law. We will continue to need a justice who will serve independently even if it goes against the policy preferences of the President who nominated him. And I think as we continue to watch, we have to ask whether or not Judge Gorsuch can truly be the independent justice that the American people are expecting and whether not the American people deserve.

Carrie Severino: I hope he has given the same threshold that Justice Sotomayor and Justice Kagan did. Neither of them was filibustered, I think we have seen a very disjointed response from the Democrats. Some are saying let’s filibuster him and frankly anyone frankly anyone that President Trump puts up for the next 4-8 years. Some are saying he deserves a hearing, he deserves an up-or-down vote. I think at the end of day we will see him get that up-or-down vote.

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Bob Ambrogi: On January 31st President Trump announced that he had selected Neil Gorsuch Judge of the 10th US Circuit Court of Appeals as his nomination for US Supreme Court to replace the Late Justice Antonin Scalia.

J. Craig Williams: Well many praised Trump on his nomination, citing parallels to Justice Scalia, while others saw Judge Gorsuch’s documented conservatism as a possible threat to Supreme Court rulings.

Bob Ambrogi: So today on Lawyer 2 Lawyer we are going to take a look at the nomination of Judge Gorsuch reaction, his record on rulings and his potential impact on the Supreme Court if confirmed. And to help us do that we have a lineup of two guests, first of all let me introduce returning guest Carrie Severino.

Carrie is Chief Counsel and Policy Director of the Judicial Crisis Network. In that capacity, Carrie has testified before Congress on assorted constitutional issues and briefed Senators on judicial nominations. She has written and spoken on a wide range of judicial issues, particularly constitutional limits on government, the federal nomination process and state judicial selection. She early in her career was a law clerk to US Supreme Court Justice, Justice Clarence Thomas and also to Judge David B. Sentelle of the US Court of Appeals for the DC Circuit.

Welcome to the show Carrie Severino.

Carrie Severino: Hi, thanks so much for having me back.

J. Craig Williams: And Bob our next guest is Attorney Michele Jawando. She is the Vice President for Legal Progress at American Progress. Previously, Michele served as general counsel and senior advisor to Sen. Kirsten Gillibrand, a Democrat from New York, where she was responsible for a wide-ranging portfolio of policy issues pertaining to the federal judiciary and nominations.

As a member of Sen. Gillibrand’s senior staff, she was responsible for leading some of the office’s landmark work, including the passage of the 9/11 health bill; the repeal of Don’t Ask, Don’t Tell, or DADT; the confirmation of Supreme Court Justice Sonia Sotomayor and Justice Elena Kagan; and Sen. Gillibrand’s trailblazing work on military and campus sexual assault.

Welcome to the show Michele.

Michele Jawando: Thank you so much for having me.

J. Craig Williams: Michele, let’s start out with you. Can you give us a generalized reaction to Judge Gorsuch’s nomination?

Michele Jawando: Yeah, well, you know I always think it’s important to put this nomination in context that where we are with the Trump administration. In the very early days of the administration, we’ve seen memos that could potentially reopen and authorize torture, we’ve seen a deportation force open up the door through Executive Orders, we’ve seen an executive order currently being challenged that would ban Muslims and refugees. We’ve seen the firing of the acting Attorney General and the possible violations of the constitutions of Emoluments Clause while allowing his senior advisor to replace others on his national security team.

(00:05:20)

And I think what that tells us is that this administration has made very clear that there is a type of agenda that they are putting forth, and now we are at this moment we are a Supreme Court nominee and we all recognize the great importance of what that means. This isn’t just four years of an administration with his relative youth we are talking about potentially 30 to 40 years. It is incredibly important that we have an independent and sensible check to this type of administration and making sure that this nominee reflects our broad American constitutional values. And so I think that’s really where I begin this conversation and also the evaluation of whether or not Judge Gorsuch can sit on the court.

J. Craig Williams: Carrie let me ask you just as a preliminary matter, I noticed that you had clerked for Judge Sentelle that Judge Gorsuch also clerked for Judge Sentelle. Were you at all peers in your clerkships, did you know him at all?

Carrie Severino: No, we weren’t clerking at the same time. I did get to meet him once he hosted our annual barbecue for the judge. And so, I got to meet him, unfortunately, I should have been more getting along with the host and saying more things and mostly I just shook his hand and said thanks so much for hosting. I didn’t happen to get to meet him that time, so hopefully I’ll get a chance to going forward, but it’s always nice to see a former dental 06:42 clerk doing great thing.

J. Craig Williams: Well, had you known, you probably would have made more of an effort to get to know him, but, so yeah, so what is your reaction. I mean that you’ve written that — you wrote an article just yesterday in RealClearPolitics that Democratic Hysteria over Gorsuch is Predictable Posturing, what’s your impression of Judge Gorsuch?

Carrie Severino: Well I was kind of more thrilled with the choice. I think he’s brilliant, his academic career is without compare, and he has such a great record on the court. He has been on like the Court of Appeals for more than a decade, has people who respect him so well from both sides of the aisle. He actually has a very high rate of unanimous opinions. He gets along well with his colleagues and I think he’s just someone that is very, very difficult to find any kind of fault with.

He’s been very explicit about wanting to put politics aside and look at the law as it’s written, that’s why you have people like Neal Katyal, President Obama’s former acting solicitor general, a very qualified but Liberal lawyer who says this is someone that Liberals should support. There was a recent Yale law professor, same thing, saying this is someone that Liberals should say, there’s no one better you’re going to find in the court that’s willing to stand up for the Constitution and the separation of powers in particular, I think that’s why Democrats just want to change the subject.

You hear a lot of talk about people complaining about things that President Trump has done, but he is not the one being appointed to the Supreme Court.

In 4 to 8 years you won’t have to worry about that anymore. Gorsuch is, and I think that Michele is quite correct there, because he’s someone who will be there for life. And so we should look at him closely, but you can’t try to just change the subject and complain about things that aren’t related at all to his own record. Let’s talk about his records which I think is excellent and really stands on its own.

J. Craig Williams: Let’s talk about his record. Michele you wrote that you feel that Judge Gorsuch is way out of step with the values and views of the American people. What is it about his record that makes you say that?

Michele Jawando: You know, listen, President Trump made very clear that there was a litmus test for determining who his Supreme Court nominee. When he outsourced this election, he made very clear that the next nominee would need to be ready to overturn Roe versus Wade or expand gun rights.

But we know that Supreme Court justices should never be chosen via litmus test. The appropriate measure for any Supreme Court justice is whether they could faithfully apply the history in the entire text of the Constitution, not just some, and recognizing the very transformative nature of the amendments and the interest of every one in this country. So when I think about the record of Judge Gorsuch, there are a few things that stand out. Whether or not there is this pattern of hostility on issues around women’s access to health care. Many recalls that in his 2013 ruling in Hobby Lobby, Judge Gorsuch really help to continue the conversation about corporate personhood and extended that frame to include religious freedoms and religious protections.

I mean he has made clear with that decision that corporations are people and in addition closely held corporations even have religious belief under the Religious Freedom & Restoration Act and I think most Americans don’t actually believe that.

(00:10:02)

Now yes, the Supreme Court later agreed with Judge Gorsuch’s views, but that’s not quite surprising from a very conservative Pro-Business Roberts Court. But at the time of that decision one of the dissenting judge noted that that ruling was unprecedented, in fact she quoted, “the decision of a female employee as to which contraceptive drug or device to use remains a private matter of individual choice,” and I think most Americans would agree with that.

J. Craig Williams: Carrie, how do you take a look at that, how do you respond to the Democrat’s allegation about the Stolen Seat of Merrick Garland?

Carrie Severino: Yeah, well, let me just quick respond a little bit to the allegations part, Hobby Lobby, being about something having to do with this hostility women’s rights. I don’t think Gorsuch has any opposition to contraceptives that I know about, and I think his decision was based entirely in the law which as Michele pointed out 5 of this 9 justices of Supreme Court agreed with that was upheld, it simply — if you don’t like the way the law defines personhood for example, that’s certainly something you can change, but that’s not something a Judge has the ability to change.

His commitment to religious freedom is something that crosses a lot of barriers. For example, there is a Yellowbear case I believe it’s called; he stood up for the rights of a convicted felon who had brutally murdered his own child. I mean a really, really bad guy, right? He wasn’t because he loves convicted felons or child murderers, it’s because he knew this guy, in this case it was a Native American religion that he has a right to act as a 11:32. This isn’t something where he made the decision because he agrees with, in that case, the owners of Hobby Lobby on their particular religious belief; he realizes that that’s something that the Religious Freedom Restoration Act actually supports.

To go to the Stolen Seat allegation, this seat doesn’t belong to Democrats, doesn’t belong to President Obama, it doesn’t belong to Merrick Garland, it belongs to the American people. This is a seat on the United States Supreme Court, the Constitution lays out very clearly how those seats are to be filled, and that’s by nomination with the President, confirmation with the advice and consent in the Senate. And the Senate has lots of ways they can choose to give or withhold that advice and consent. There is a lot of people claiming it’s unconstitutional not to hold a hearing or not to hold a vote, that’s simply false. Two-thirds of the nominations that have been rejected historically, it’s been done so without giving them a vote, they are simply not acting on the nomination.

So it’s something that is clearly constitutional, The Washington Post Fact Checker qualified that, and that’s what the Republicans were saying at the time is, let’s wait for the outcome of the election. Remember, that was back when everyone was pretty sure the Republicans were going to lose that election.

So this wasn’t a game that’s saying, oh good, now a Republican can replace the seat. No, this was saying; give American people a voice. It turned out the American people chose differently than everyone thought, at the end of October, even they would, they said, they wanted Donald Trump to fill that seat.

So now here we are in a similar situation where Obama was at the beginning of his presidency, slightly farther in of course, where he had a Justice Sotomayor as a replacement on the Supreme Court for a Justice Souter, that wasn’t one that the Republican said, no, no, no, we don’t like this guy, we’re going to block everyone, he is going to put out, neither did they do that for Justice Kagan. They gave both of those candidates hearings and an up-or-down vote. There was no attempt to filibuster them. I simply think the Democrats ought to offer the same courtesy to Judge Gorsuch.

Bob Ambrogi: As we are recording this, the talk of the new cycle was Judge Gorsuch’s comments yesterday calling the President’s recent criticism, the judiciary, “disheartening and demoralizing”, something that everybody seems to agree about, agree on about Judge Gorsuch’s, is that he is unlikely to tolerate any excesses of Executive Branch authority, any misuse of Executive Branch authority, Michele, I am just wondering does that make you feel any better? Are you any more welcoming of the potential of Judge Gorsuch on the Supreme Court given what’s happened over the last couple of days?

Michele Jawando: Well, I definitely want to respond to that, but I first must raise and bring up kind of the unprecedented moment that we found ourselves in last year with Chief Judge Merrick Garland. This was the first time in history we saw members of the Senate Republican members of the Senate who didn’t have the decency to meet with the most — what many considered the most experienced moderate nominee. He was not beloved across the progressive community, he was someone who was often seen as a — in some ways an olive branch to Republicans in the Senate. And remember, this opening occurred in February of 2016, many people say, oh, this was an election year. Yes, and history tells us that appointments and confirmations of Supreme Court justices even in recent history with Justice Kennedy have happened.

(00:14:57)

So I think it’s important to kind of recognize that, to recognize the kind of level of disrespect that many people felt that Merrick Garland experienced through that process, and someone who — I think people on both sides of the aisle talked about what type of person and what type of judge he would be, and I think there are many Democrats who are still smarting from dealing with that process and right now are kind of pushing back on kind of the speed that we see occurring with this nominee, especially after a year of not moving forward on Merrick Garland, so I had to make sure that I mentioned that as we continue the conversation.

Earlier this week Roger Stone, who is one of President Trump’s advisers, said that if Trump is going to be a transformational President not a transitional President he needs a support of Court, not a Conservative Court and not a Right-Wing Court, a Trump Court.

I think those words are incredibly dangerous, and I think Carrie is right that we can’t put our belief on who should be on the court or the court or the seat belonging to anyone, it is the people’s court. And so, I think where you find concern about Judge Gorsuch is whether or not he has the independence to reject such a dangerous agenda. Will he just be a rubber stamp for this administration or will he move the Supreme Court in manners that are as extreme as we have seen over the past few weeks, and that is a —

Bob Ambrogi: Don’t you think his record shows that he does have the backbone to reject overstepping by the administration?

Michele Jawando: Well, I don’t think that. Quite frankly, I mean, okay, let’s give an example. So there is this Riddle v. Hickenlooper case, and where Judge Gorsuch joined a Tenth Circuit Panel and striking down what many considered an ill-advised Colorado Statute that impose lower campaign contribution limits on minor party candidates.

Now, what’s troubling about that opinion is that Judge Gorsuch in a concurring opinion suggested that making a political contribution was a fundamental right and that it should be afforded the highest form of constitutional protections which many of your listeners are familiar with as knowing as strict scrutiny review.

Now listen, as the highest form of our constitutional protection we usually reserve strict scrutiny for our most precious rights, whether we’re talking about just free from discrimination on the basis of race or religion or the right to express it on popular viewpoint. Sometimes the court doesn’t even apply that level of restriction on the right to vote itself, but in recent years we’ve seen the Supreme Court kind of move in this direction of applying strict scrutiny to laws governing money in politics.

And if the court were to follow that reasoning from Judge Gorsuch and apply strict scrutiny laws to laws governing our direct contributions to candidates, I think many people are concerned that the remaining protections that we have around money in politics was similarly full, and to me that is not in the mainstream view. That is an extreme view, that is a view that I think is out of step with the American people and it’s quite troubling about his record.

J. Craig Williams: Well, thank you, Michele, but before we move on to our next segment we’re going to take a quick break to hear a message from our sponsors.

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J. Craig Williams: Well, welcome back to ‘Lawyer 2 Lawyer’. I am Craig Williams and Bob Ambrogi, my co-host, with us today is Carrie Severino, the Chief Counsel and Policy Director of the Judicial Crisis Network, and Attorney Michele Jawando, she is the Vice President for Legal Progress at American Progress. And we have been discussing the nomination of Judge Gorsuch to the Supreme Court by President Trump’s recent political developments.

(00:20:02)

Carrie, what’s your reaction to the sense that Judge Gorsuch has stepped up and disagreed with President Trump regarding his criticism of the Washington judge who’s proposed a TRO on his travel ban?

Carrie Severino: Well, actually I am not sure that that characterization is quite correct, that was how Senator Blumenthal characterized it. I was surprised that he even commented about that because my understanding was that the discussions that were going on behind those closed doors, were actually confidential ones, but obviously, Senator Blumenthal didn’t think so.

But Senator Ayotte, former Senator Ayotte who was there and has been escorting Judge Gorsuch clarified that he wasn’t he as a judge must, under Ethics Rule, he was not commenting on the specific that specific case, but he did say that it was disheartening when Presidents, probably like President Obama as well, were commenting on cases.

I’ll add however that Presidents commenting on Supreme Court cases, it’s sometimes much more forcefully than President Trump has done. It’s hardly a new thing, President Jackson saying they have the ruling if you could let him enforce it. That’s much more threatening or something like FDR threatening to pass the court to try to get a court that would be more friendly to his opinion.

So there’s a long history of people who are much, much more aggressive in their criticism and I would say that President Obama’s own remarks at the State of the Union Address certainly fall into that category of something that was much more direct even than what President Trump has done.

To quickly comment though first on Emmett case that Michele commented, I just add that I think it’s kind of strange to be surprised that someone would apply strict scrutiny to something that actually has a serious First Amendment implications, that is, the right of free speech and political speeches, part-of-speech.

I know there’s obviously a lot of debate as to what extent the ability to fund your political speech is part of those free speech rights, but it’s hardly something that is unusual or out of the mainstream in any way as there was a great piece in ‘The Wall Street Journal’ recently summarizing some of the statistics on Judge Gorsuch, and it’s shocking that anyone with numbers like these could be considered out of the mainstream.

He said eight cases that he appealed back to the Supreme Court, seven of those the Supreme Court upheld his decision, four of them unanimously. That means Justice Breyer, Justice Ginsburg, Justice Kagan all agreed that he was correct. That’s not someone who’s out of the mainstream.

On the Tenth Circuit, a Circuit where 7 of the 12 of the active judges are Democratic appointees, he has a 98% unanimity rating, so less than 2% of the cases he has decided even have separate opinion. That is someone who is absolutely not only in the mainstream but actually has a great record of collegiality and working with his colleagues.

So I know those are concerns that the Democrats may have in general about judges. They simply don’t fit when you’re talking about Judge Gorsuch.

Bob Ambrogi: The comparison that’s being made from President Trump on down is to the justice he would replace to Justice Scalia. Carrie, how accurate in your view is that? How much in the mold of Justice Scalia is Judge Gorsuch?

Carrie Severino: Oh very much so. Obviously, the list of judges Trump put out originally was designed to find people who had that approach to the law, and I think Judge Gorsuch was a great pick among it because he does have so many similar characteristics.

A lot of people pointed his writing style, he’s very eloquent, very witty, I think a little bit less fighting perhaps than Justice Scalia sometimes, Justice Scalia can be a very sharp contender sometimes especially in his defense of course. Judge Gorsuch has I think all of that same wit and really in a fun writing style but very clear and easy to read as well.

I think the other area people point to in terms of comparing him to Justice Scalia is his real concern about the separation of powers and preserving those constitutional limits on government. He actually may go even farther than certainly Justice Scalia did early on in his career, although I think he more reflects where Justice Scalia was toward the end of his career in terms of skepticism about court deference to administrative agencies, but all of those, and I think the other area where he reminds me of Scalia is his willingness to write separately to clarify his own view of things.

I love that in one case he actually wrote a concurrence to his own opinion. So that just shows he really wants to take the time to explain and get it right, but also that he understands that this is not something that the entire court is going to agree to. So he’s not someone who’s going to try to just write it and strong on everyone into buying into. He understands how to build that consensus but then additives on footnote at the end.

J. Craig Williams: So, Michele, let’s take a look to the future here before we wrap things up, what do you think we’re looking at in the future? How many more openings may occur in the next four years and who do you see on the short list for those openings?

Michele Jawando: Well, listen, I think the American people deserve a process as thorough and as unsparing as is possible particularly in this kind of politically charged moment in history.

(00:24:58)

At Judge Gorsuch hearings in 2006 he stated, President is something to be respected and honored, and it’s unacceptable for a judge to try to impose his own personal views.

Look, if that is true then that would be a great thing, but I think from a number of initial reviews of the record, there’s a question about whether or not he meets that same high standard set forth by even Merrick Garland, and I think when there are these litmus tests that President Trump has applied in kind of making his selection, the American people are left wondering whether or not Judge Gorsuch can truly be independent. And I think those are the questions that you will see Senate, Republicans and Senate Democrats, asking over the next few weeks and months.

Look, you can never guess what will happen with the court, but I do think that this is a real pivotal moment because of I have heard great things about Judge Gorsuch in terms of his collegiality and his relationship, and obviously, as a former Kennedy clerk, there’s a certain amount of kind of palace intrigue, was he the selection, so Justice Kennedy feels like he can retire and then open up another spun on the court.

So I think we will be having a number of these conversations hopefully continue to be friendly, although on different sides of these issues in the months and weeks to come because we are at such a crucial moment in the court. And I think the American people deserve to see these arguments played out, I think they deserve to hear these questions and I think Democrats as well as Republicans should recognize that for each of President Obama’s nominees, for Justice Sotomayor and Justice Kagan, there was a threshold of bipartisan support that both of their nominees were able to achieve. And I don’t think that that standard should be eliminated when it comes to consideration of this nominee. And that’s incredibly important as we continue to move forward over the next weeks and months.

J. Craig Williams: Okay, well, it looks like we’ve just about reached the end of our program. It’s time to wrap up and invite our guests to share their final thoughts along with their contact information for our listeners. So, Carrie, let’s turn it over to you.

Carrie Severino: Yeah, so I am really excited to watch the confirmation hearings. I agree with Michele, it’s going to be great to hear him because he is going to be very articulate and he is going to be a delight to listen to. I hope he has given the same threshold that Justice Sotomayor and Justice Kagan did. Neither of them was filibustered, I think we have seen a very disjointed response from the Democrats.

Some are saying let’s filibuster him and frankly anyone that President Trump puts up for the next 4-8 years. Some are saying he deserves a hearing and he deserves an up-or-down vote. I think at the end of the day we will see him get that up-or-down vote, and I think he will continue to build a large base of bipartisan support. I hope so because I think turning this into just simply a partisan referendum on last November’s election is the wrong response, it’s about the Supreme Court, this isn’t about whether or not the Democrats are happy with President Trump.

If you want to hear more about what we’re doing, we are at  HYPERLINK “http://www.judicialnetwork.com” judicialnetwork.com. I tweet @JCNSeverino and we also have to @judicialnetwork on Twitter and then we have a website  HYPERLINK “http://www.confirmgorsuch.com” confirmgorsuch.com that has a video and some information about the justice but including not just his bio but his legal background, some summary of those legal things that he’s done as well as other resources on the judge.

J. Craig Williams: Great. Well, thank you very much. Michele?

Michele Jawando: It has been a privilege to join you this afternoon. I think I’ll start where I began that the Supreme Court and whoever we decided to sit on the Supreme Court shouldn’t be chosen via litmus test and promise votes in particular areas of the law.

We will continue to need a justice who will serve independently even if it goes against the policy preferences of the President who nominated him. And I think as we continue to watch we have to ask whether or not Judge Gorsuch can truly be the independent justice that the American people are expecting and whether or not the American people deserve, particularly at this moment in history.

You can find me on Twitter @MicheleJawando. We also — the Center for American Progress, you can find us on Twitter @amprog and our program ‘Why Courts Matter’, somewhat of a civics lesson for the American people I think that it continues to play out with each passing day more-and-more.

We have additional information about our concerns about the judge’s record and also ways for people to get involved and you can go to  HYPERLINK “http://www.WhyCourtsMatter.org” WhyCourtsMatter.org or follow us on Twitter at @WhyCourtsMatter, and thank you so much again for the invitation to join you today.

Bob Ambrogi: Well, thank you very much. We really appreciate it you taking the time to be with us today. We’ve been talking with Carrie Severino; Chief Counsel and Policy Director of the Judicial Crisis Network, and Attorney Michele Jawando; Vice President for Legal Progress at American Progress.

(00:30:06)

That brings us to the end of another episode of ‘Lawyer 2 Lawyer’. On behalf of everybody at the Legal Talk Network thanks for listening. Join us next time for another great legal topic, when you want legal, think ‘Lawyer 2 Lawyer’.

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