The Supreme Court, Neil Gorsuch, and the Nuclear Option

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Transcript

Planet Lex: The Northwestern Pritzker School of Law Podcast

The Supreme Court, Neil Gorsuch, and the Nuclear Option.

3/15/17

[Music]

Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away, Dan.

Daniel B. Rodriguez: Hello and welcome to Northwestern Law School’s Planet Lex, podcasting from the Northwestern School of Law in Chicago, Illinois. My name is Dan Rodriguez, your host.

Today, I will be discussing all things Supreme Court with Northwestern Law Alumnus Carter Phillips, our Nation’s Supreme, Supreme Court Advocate. Carter graduated from Law School in 1997 and has gone on to become one of the most prominent members of the Supreme Court Bar having argued over 80 cases before the Court, the most of any lawyer in private practice.

2015 study named him and Chief Justice John Roberts as the most successful lawyers to argue for the Supreme Court from 1946 to 2013, not as the study indicated just because of their experience but because the Court consistently adopted portions of the language in their briefs into their decisions.

Carter called for Chief Justice Warren Burger and served as an Assistant to the Solicitor General. He is currently the managing partner and serves as Chair of the firm’s Executive Committee at the International Law Firm of Sidley, Austin. We are so very fortunate and indeed to have him as an adjunct faculty member in our Appellate Advocacy Supreme Court Clinic. He also recently coauthored an Advanced Appellate Advocacy textbook which of course in this program I am sure he will have an opportunity to plug with three other Northwestern faculty members published by Aspen.

Carter, thank you for joining us today. I am going to ask a question first that I am sure there’s no way you would anticipate even a seasoned Supreme Court lawyer like yourself, and that is, what you think of President Trump’s nominee Neil Gorsuch whose nomination is currently before the Senate? Really like to get your perspective of Judge Gorsuch and also where you think this nomination might be headed?

Carter G. Phillips: Sure Dan, thanks, first of all for the very gracious introduction, I think that was written by my mother as I think about it, but I have known Judge Gorsuch long before he became Judge Gorsuch. I actually tried to recruit him when he finished his courtship with justices White and Kennedy back in the relatively early 1990s.

I have never actually argued a case in front of him, although it was pretty common knowledge or common understanding among appellate lawyers at Sidley that if you had a business case in the Tenth Circuit the judge you would most want to have on that case would be Judge Gorsuch; he understands business issues. I think he will be a very solid conservative vote some ways in contrast of what would have happened if Chief Judge Garland had been confirmed, and we will talk about that in a minute.

On the other hand, he is by all accounts if everyone has ever argued in front of him precisely the kind of person that someone like me is the guy who stands at the podium would welcome, somebody who obviously spends time thinking about the cases asks excellent questions doesn’t take himself too seriously and doesn’t take the process too seriously, but nevertheless, is an extraordinarily gifted writer and thinker. So I think he will make an excellent addition to the Court.

Daniel B. Rodriguez: He is manifestly a great admirer of the Late Justice Scalia has said as much long before the nomination in speeches and in writings who has continued to say that. Do you have any sense of how if at all he would be different either from the vantage point of voting or style or really any other part from the Late Justice Scalia?

Carter G. Phillips: Well, the one thing is, it would be really hard to replace Justice Scalia’s presence in the whole notion that the way he asks the questions, the sense of humor at times whimsy that he approach the oral arguments with, I don’t think you can capture that, I don’t think there are very many people who could or would be able to replace Justice Scalia on that score.

In terms of votes, I think on a lot of the business issues that I know most about, I don’t think there will be a significant difference in terms of at least statutory interpretation, those kinds of issues. I could imagine that in some criminal cases where Justice Scalia came out reading the Constitution as prohibiting enhancement of sentences, and for example, he might have a different take on those kinds of issues because that’s not one where you end up with normally conservatives voting in favor of the criminal defendant and yet Justice Scalia came out that way.

It’s not to say that Justice Gorsuch may be he is confirmed, would differ, would disagree or would back off of existing presidents in that setting, but that’s a place where I could easily envision them having a somewhat different take.

(00:05:00)

And then actually the one area that to me at least it will be really interesting to see, and this is one I have been thinking about a lot is in the punitive damages context because when the Supreme Court concluded that there are due process limits on the severity of punitive damages that can be imposed, it was a very different Court then than it is today and one of the justices who descended from in that ruling was Justice Scalia who basically said he didn’t see a role for the due process clause in constraining how much money a jury could insist that be paid on to the punitive damages rubric, and it will be really interesting to see whether that’s a position that Justice Gorsuch again if he is confirmed would subscribe to or whether he would take sort of the more business-friendly view of saying due process clause as a role here and it can significantly constrain.

Composition of the Court has changed dramatically since that old State Farm case, so it will be basically to see even how people — justices like Alito and Chief Justice Roberts and justices Kagan and Sotomayor react to because none of them was sitting at the time of that decision.

Daniel B. Rodriguez: There’s also been some attempt to read the tealeaves of Judge Gorsuch’s views on executive power. He haven’t expressed maybe more in speeches than opinions, but skepticism about executive power on the one hand and a strong voice for separation of powers on the other, and it’s certainly not the case that Justice Scalia was shrinking violent so far as anything, but with respect to separation of powers; but, as you know, Justice Scalia had written a number of decisions and concurred in opinions involving the Chevron deference and there certainly you could say that he was a strong supporter of broad executive power. Do you think there is any may be difference on that dimension with Judge Gorsuch?

Carter G. Phillips: Well, it’s pretty clear to me that Judge Gorsuch’s views on Chevron deference are certainly at odds with the Court, the Supreme Court majority at least doesn’t exist as it has existed up to this point. He is really skeptical of deferring to administrative agencies and making when the issue comes up to the Court, but it was interesting because it looked as though a pretty solid three or four members of the Court on the conservative side were moving in that direction too.

There have been a number of opinions recently where there was separate descends in which justices Thomas and Alito and the Chief Justice and even Justice Scalia had expressed serious reservations about the extent to which deference is warranted and justified, and well, they hadn’t directly confronted the core of the Chevron doctrine, they had certainly begun to question whether or not applications of Chevron and giving agency deference to the agency’s interpretation of its own regulations where you end up ultimately moving the law way past where the statute was a situation where they were beginning to think that perhaps they are reconsidered whether the deference is warranted in that circumstance.

So I think he will be a solid vote to rethink in that line, but I am not a 100% sure that Justice Scalia wouldn’t have ended up going in that direction as well. On the question of executive power, Justice Scalia was a product of having lived in the Ford Administration as the Head of the Office of Legal Counsel, and I think he believed that those kind of onslaughts on the executive weren’t appropriate. I don’t know whether Judge Gorsuch would have quite the same vigor in his reaction to executive power that Justice Scalia did.

Daniel B. Rodriguez: Just a footnote on your comments about Chevron, it may be that that will be somewhat moot because as you know Congress is moving headlong into that issue with respect to legislation on that point.

Let me ask you a different question outside the realm of doctrine, you also hear about this speculation that maybe some of the impetus behind the President picking Judge Gorsuch was to have a powerful justice who might influence Justice Kennedy for whom Judge Gorsuch clerked. Do you think there is anything to that speculation?

Carter Phillips: I mean, it’s hard to know. I think you could click off all the other boxes that he would satisfy, he is relatively young, he is very smart, he has got all of the credentials you could ask for and he has the benefit that you would expect that at least Justice Kennedy would be personally fond of him, but I doubt seriously that Justice Kennedy’s views on these things are going to be swayed simply because a single justice comes on the Court whom he knows because it’s true that he probably knows most of the people who are going to go on the Court anyway because it’s relatively small world we operate in.

Daniel B. Rodriguez: Were you surprised that Judge Gorsuch was President Trump’s choice, given the other options he had?

Carter G. Phillips: No, actually I wasn’t. I think he had a number of people he could have selected who would have been equally effective and appropriate, but at 49 Judge Gorsuch has got a lot of years left in him and he has got — nobody can doubt that he is qualified to go on the Court and he’s certainly got the experience, and he is just an impressive person. So I am not surprised that the President would take all that into account and make a decision.

(00:10:12)

Daniel B. Rodriguez: So let’s turn to the political realpolitik of all this, which is, the state of the Gorsuch nomination; I guess, I want to ask you particularly in the light of the remarkable situation with Judge Garland that is the waiting out as it were the administration and the not consideration of him to say a little bit about the intersection between the failed Garland nomination and the Gorsuch nomination and how it might bear on the confirmation process going forward?

Carter G. Phillips: Well, I think if Democrats had taken the Senate this would be a really, really hard issue because there is a pretty substantial sentiment among Democrats in the Senate that this is a seat that was effectively stolen from them and it’s created a not insubstantial amount of ranker. Since the Republicans had the majority and if they wanted to, could eliminate the filibuster with a majority vote here, I think the politics of this is not going to be anything like what they could have been for the slightly different composition of the Senate.

I doubt that the Democrats are going to want to push the Republicans to adopt what’s been described as a nuclear option at least at this point, because again, the differences between Judge Gorsuch and Justice Scalia are not that great, it’s not going to significantly alter the balance that the Court had prior to Justice Scalia’s passing, and so, I am not sure this is worth fighting to the dev on. I suspect they will probably drag it out a little longer than it might be optimal, it would be nice frankly to get the ninth justice on the Court, regardless of who the pick is. But, there is real antagonism going on now and it will be interesting to see exactly how far they are willing to push.

I do think there is a serious question whether you could stop a filibuster even though Judge Gorsuch is supremely qualified, but there is that much hospitality within the Democrats that I could imagine them saying if the filibuster applies then they would just agree to stop debate on him.

Daniel B. Rodriguez: Well, if as you say that the Republicans do exercise what’s been called the Nuclear Option, are there any consequences of the exercise of that for Supreme Court nominations going forward, as we know that option has been the thread of it, it’s been utilized in connection with appointments of judges of the lower court, but not the supreme court, so suppose that that option is exercised now, is there any particular way that that bears on confirmation battles going forward or is it just — we just wait until next time to see whether the votes line up that way?

Carter G. Phillips: Well, no, I think it would have pretty significant importance in any event, because at a minimum the President would know I don’t have to pick somebody who is going to get 60 votes, he is going to have to pick somebody who can get 51 votes and if you have a — if the Republicans have 52 seats the next time around, then any straight up or down vote he will prevail on. So I do think it probably affects the type of nominee that somebody would choose if the President knows that the filibuster rule is not in effect.

Now that said, if they don’t have to use the nuclear option this time because the Democrats decide they don’t want to really dig their heels in on it, there will be nothing to prevent again and assuming that the Republicans still have a majority in the Senate, there will be nothing to prevent them from using the nuclear option, it’s just a question of whether the President believes that that would happen and therefore he would try to pick somebody who was not going to have to find a way to get up to 60 votes as opposed to picking somebody that he knew he would have to pick up at least some democratic votes.

Daniel B. Rodriguez: So let’s unpack these assumptions a little bit in a scenario or predicament the political scientists have to love as they look forward to the dynamic of politics. We don’t know who the next nominee will be or even whether there will be a vacancy in the Court. The most speculation of course centers on Justice Kennedy and Justice Ginsburg, but no one truly knows say perhaps for the two of them whether there will be a vacancy because of their resignation. And also, no one knows what will happen in two years when a number of Senate seats are up.

So with both of those uncertainties in the background, what do you think the politics, and by politics, I mean, sort of at the level of the Trump administration, who they might appoint, and at the Senate’s level what do they look like in terms of the next perspective nominee, which let me just add to your plate, of course with Justice Kennedy and Justice Ginsburg, the next nominee could well shift the balance of the Court.

Carter G. Phillips: Yeah, I mean, that’s a huge issue that could pop up and I suspect it will probably be a part of the reason why at least, for sure, Justice Ginsburg will not readily resign or retire from the bench, that’s a huge, huge issue. And my guess is, if Justice Ginsburg is the next pick, is the next person to be replaced, I assume that the President will probably feel pretty strong nudge in the direction of replacing her with another woman so that will affect to some extent both the politics of the choice by the President and how the Senate responds to it.

(00:15:04)

If it were to be Justice Kennedy then there is the pivotal swing vote, and the last time there was a fight where you were talking about the swing was bad with Bork and obviously the Democrats went to great lengths to stop that confirmation at the time Justice Kennedy ended up getting on to the Court.

So I have every reason to suspect that the Democrats will use every tool in their chest to try to block whomever the President picks to replace if he were in fact replacing somebody either Kennedy or Ginsburg, be different obviously if you try to replace Thomas or somebody else from the right, but they are obviously substantially younger.

Daniel B. Rodriguez: Also, it’s fascinating to look at it from the vantage point of the appointment, which is to say, from the vantage point of the Trump administration, right? The Republicans have perceived themselves as having been specially snake-bitten in modern history certainly much more so than the Democrats and who they appoint, you think back, it’s long back as justices Brennan and the Chief Justice, but more recently with Justice Kennedy to a large extent and Justice Souter especially, it does seems that within republican services it’s like that’s not going to happen again, we are going to put forward a hardcore conservative no matter what.

Carter G. Phillips: That seems to be undeniably true that if you look at the list of the 21 it’s a pretty solid line up of conservatives who had been vetted pretty carefully by conservative organizations, and so, I think the risk of Souter or even Blackmun or something along those lines getting through would be substantially reduced.

Daniel B. Rodriguez: Carter, can I ask you this, why are Democrats better at that game than – it’s not a game, but at that calculus than Republicans, you look at history, you don’t see that in democratic nominees that they prove to be unreliable from an ideological perspective.

Carter G. Phillips: Well, that is not a 100% clear to me, I mean, Justice White for instance is President Kennedy’s pick, I don’t think Justice White would be regarded as a wild liberal in a lot of different ways. I think to a certain extent there was a tendency not to kind of focus on those issues much until you get to past Kennedy, you get to Nixon, and there it became a political fight. He ran on a platform that said that they have to change the Court because liberals are taking control now — since then — again they are not that —

Daniel B. Rodriguez: But then he appointed Justice Blackmun.

Carter G. Phillips: Yes, he did, so he is not the best at it, but I guess he would be the first to say he didn’t get that one right. I suspect he listened to my old boss a lot about that and my old boss probably thought that Justice Blackmun would be a solidly reliable conservative vote, and frankly for fair number of years he was, it’s just overtime because you shifted and turned out the way it did.

Daniel B. Rodriguez: Yeah. Let me shift from the nomination to some issues that are before the Court and we are recording this in the middle of February, but, somewhere we said we have some obviously rapid evolving situation with respect to the immigration executive order, the Ninth Circuit has ruled on that at least on the TRO and stopped it in its tracks where, again, the next days and weeks will reveal what will happen with that, but suppose it does find its way to the Supreme Court, currently it’s — I shouldn’t speculate about whether it’s deadlock but there are some speculations deadlock.

So, where do you see kind of the relationship between the pending nomination and some of the key issues, the hot button issues particularly the immigration ban intersecting?

Carter G. Phillips: Well, look that isn’t any question that the Court has stayed away from a whole lot of controversial issues during the period after Justice Scalia passed away, they are split 4-4 on a lot of different issues, I don’t think any of them wants to be in a position where they are handing down 4-4 affirmances right and left and so they seemed to have come up with some kind of an informal or probably un-stated assumption that we are just going to get cases that we think are likely to end up 6-2 or 7-1 or 8-0 or whatever rather than cases that are going to risk coming out 4-4, I think the Court would deny cert at this stage and a case involving on the immigration case in part because this is DRO, it’s very preliminary, there is no real record to work with.

And I find it hard to believe frankly that it would be 4-4 even on a question of whether the President has absolute unbridled discretion to create categories of excluded people and circumstances like this and without any kind of an opportunity for hearing, et cetera. The President may have been confident that this was an easy order, but the reality is that it’s not an accident that four judges have looked at this and come out the other way on and actually it fits one I guess because Virginia came out and ruled yesterday as well, on religious discrimination element of the case.

(00:20:02)

So I think at this point, the Court will just stay away from it to the extent that they really wanted to get at the heart of the issue or one of the harder questions, may be on religious discrimination, I am pretty sure they would split 4-4, and nothing is gained by that other than sort of forcing the parties literally to raise in order to get this thing briefed and dealt with just to have the Court do nothing. So I think at least for now, the Court will stay of that fight.

Once they have a ninth justice, I could imagine that at that point, the issues will be much more mature and ripened and ready to be decided, then it will be interesting. Again, I don’t know that there are any votes on the Court to say that President has unbridled discretion to act this way, and in contrast of making an individual, when the executives make a person-specific decision, that’s one thing. When you start making categorical decisions like this where there is at least an argument to be made that there is a serious constitutional impediment to what the President is doing, I am pretty sure most courts are going to take the view that that’s something that Court at least want to review.

Daniel B. Rodriguez: It’s your line of work, not mine, but I am just trying to picture a cert petition that has as a question presented, does the President have unbridled executive discretion to do something? It doesn’t resonate with my experience of re-cert petitions and it sounds like not yours either.

Carter G. Phillips: Now, you probably asked it different — you would probably argue that the Ninth Circuit has impaired the President’s broad discretion, but when you get to the arguments — in fact going to say that there is unreviewable discretion here that should apply, that’s certainly the argument that Justice Department made before the Ninth Circuit.

Daniel B. Rodriguez: Exactly. Just a question obviously from your end, with a very active Supreme Court practice, with the Supreme Court being relatively quiet for this in terms of big cases and delay in taking cases, are just the way you say because of the even split, how does that affect your work as a Supreme Court Advocate, you have got clients who have right interests that they want to fulfill and disputes that they want to resolve, and so, can you act — you and others who are in your position act sort of in a triage role to say, well, not now, we are not ready, you got to wait into the courts have complete strength or is that really out of your hands as a practical manner.

Carter G. Phillips: Well, I can certainly give my clients advice and I have and said to them, I mean, I had one client who settled the case that I am pretty sure we would not have settled if there were nine justices on the Court, that was a Petition that was in fact pending at the time of Justice Scalia’s death.

I have advised other clients that I can count to four, which is the number you need to get certiorari granted but they can’t count to five because it’s the kind of issue where it seems to me that Court will split on audiological grounds and we will be able to get a fifth vote, and I’ve had a fair number of instances in which the clients under those circumstances, not surprisingly, a lot of them will see the point, why I am going to spend money to end up with a result that says either cert-denied because it’s too controversial or worse, you are going to end up losing the case.

And it’s interesting because one of the issues that’s become a hot button issue, although in some ways it always seems to me odd that it’s taken on those roles, of Federal Arbitration Act Interpretation and how it applies to class actions, and there has been a split in the circuits about whether or not labor board’s interpretation of concerted activity operates in a way that essentially trumps the Federal Arbitration Act’s interpretation at the five-member majority with Justice Scalia writing an opinion had said, applies where you don’t have class actions in the arbitral context unless the parties specifically ask for them which they never would.

And that issue has been flown around and I told clients not to go after it at this point because again, I can get the four, but I can’t get the five. The Court just granted those cases and then put off the argument until October. So it’s pretty clear that they think that the end is inside and that they can go back to assuming there will be nine justices.

They are not confident necessarily that Judge Gorsuch would be on the Court by April, which I think was hope of the administration, but certainly by October, I think it’s fair to assume that he will be confirmed unless something — some revelation comes out.

Daniel B. Rodriguez: Right, not that you need a commercial — our listeners need a commercial announcement for you by me, but I suppose for the reasons you identified clients are well advised to seek their advise and counsel from an individual like yourself who has argued nearly a hundred times before the Court, just for all these calculus. So let that be a commercial to those of you listeners in search of a Supreme Court Advocate.

So we are winding down in time but I wanted you to get a plug in for your book, a wonderful book, textbook on appellate advocacy that you wrote with your colleagues and our colleagues Sarah Schrup and Susan Provenzano, both clinical professors here at Northwestern, as well as Jeffery Green, fellow adjunct in our Appellate Clinic. What on earth inspired the four of you to write and put out a book on appellate advocacy?

(00:25:12)

Carter G. Phillips: Well, you got to give credit to your full-time faculty because Sarah and Su both came up with this idea, and basically what they recognized was that everything that’s been basically written about appellate and Supreme Court advocacy is kind of a how to if you are a practicing lawyer and you are not doing this very often and sort of one of the most frequently asked questions et cetera and in response to that and it’s been quite helpful in that regard, particularly if you just don’t do that much appellate work.

But, what there wasn’t before this book was something that combined the pure academic way of thinking about writing a persuasive analysis and the practical that Jeff and I have, because we don’t worry about the academic portions of it, we just do it. But it was fascinating to write a book with them because they would describe things that we sort of take for granted in terms of how you think about a problem and how you pitched it, would come up with a way of kind of theoretically explaining it and then we would fill in with the specific examples or tap into interviews with other lawyers who like ourselves have been practicing before the Court for quite some time, with new technologies so you can do this online, or portions of it for online and back and forth, it’s a fascinating — to me at least, a fascinating process to work through and it takes you all the way from the beginning of a case to the end of it in terms of each of the steps along the way.

Again, all the credit in the world should go to Sarah and Su because it was really their genius, they came up with it. Jeff and I were just happy to be along for the ride.

Daniel B. Rodriguez: Well, that’s not the way they see it, but that’s very generous of you to say. You mentioned the phrase “new technology”, so I will just close on this note is, we’ve been talking so much around the law school, about the role of technology and law, you’ve heard me and others talk about the that, there are some of the other recordings on this podcast have done that. So I have had a couple of faculty members ask me whether we’ve doubled down so much on the role of technology and Artificial Intelligence that in 20 years from now there won’t be Carter Phillips but it will be a robot standing there before arguing with another robot on the other side before the Supreme Court. I suspect you do not see that as the next world coming?

Carter G. Phillips: Yeah, I am not worried about that because you got to remember that at least with the Supreme Court they are still handing out quill pens at the counsel table. So technology is not something that they at least at this stage jumping to get out in front of. So I suspect we will stay as a pretty technologically challenged group for the foreseeable future.

Daniel B. Rodriguez: Well, with that crystal ball that’s great food for thought, I want to thank you for joining us, always a pleasure and to our listeners that’s our show for today.

So thank you for joining me and thank you for listening. I’m Dan Rodriguez signing off from the Northwestern School of Law on Planet Lex.

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