Thursday, January 26, 2017

Trump's Supreme Court nominee

In an alternative universe where Democrats have a spine or at least a Senate majority, they might be able to do what the Republicans did in 2016 and block a nominee, especially since they can't stop any of Trump's appalling cabinet of conservative extremists.  Very, very low odds of that happening in actual reality, so let's take a look at who might get tapped next week.  President Twitler apparently has his selection narrowed down to three white male federal appeals court justices, all of them W. Bush appointees and all millionaires.

L to R: William Pryor, Neil Gorsuch, Thomas Hardiman

Those reportedly on Trump’s short list to fill a vacancy created by the death of Justice Antonin Scalia are all federal appellate judges: Judge Neil Gorsuch of the 10th Circuit Court of Appeals in Denver, 3rd U.S. Circuit Court of Appeals Judge Thomas Hardiman, based in Pittsburgh, and 11th U.S. Circuit Court Judge William Pryor, who works in Birmingham, Alabama.

Financial profiles of each appear there.  The favorite seems to be Gorsuch.  Edith Roberts at SCOTUSblog adds some linkage.

At Bloomberg, Greg Stohr reports that “the president is a week away from nominating someone who would become a core member of the court’s conservative wing,” and that each of “four appellate judges in contention for the slot, including front-runners Neil Gorsuch and Thomas Hardiman, would fit neatly into the ideological mold of the man they would succeed, the late Justice Antonin Scalia.” In The National Law Journal (subscription or registration required), Tony Mauro reports that Gorsuch is “no fan of class actions,” having “criticized what he viewed as baseless litigation by shareholder classes,” and that he is “not big on agency deference either.” At PrawfsBlawg, Richard Re discusses recent remarks by Gorsuch in which the judge stressed the importance of the federal judicial oath, asserting that whoever “the nominee turns out to be, I hope that the resulting confirmation hearings spend some time exploring what it means to do ‘equal right to the poor and to the rich.’”

The son of Reagan's EPA director Anne Gorsuch Burford receives the early and favorable media vetting.  This excerpt from Ariane de Vogue of CNN digs deeper into his judicial philosophy.

Gorsuch, 49, has been on the radar of some judicial conservatives for some time. He has long been a favorite of legal thinkers at the Federalist Society and the Heritage Foundation.

Conservatives welcome his opinions on religious liberty. For instance, he has sided with closely held corporations who argued that the so called contraceptive mandate violated their religious beliefs. In another opinion, he challenged the notion that courts should defer to administrative agencies when they interpret the law. It may seem like a dry legal issue but it is central to many conservatives, including Justice Clarence Thomas.

"Judge Gorsuch has been a stern critic of a fixture of the Supreme Court's administrative law jurisprudence -- the idea that, where a federal agency is enforcing an ambiguous statute, courts should defer to how the agency understands the statute even if the courts read it differently," said Stephen I. Vladeck, CNN Supreme Court contributor and professor of law at the University of Texas School of Law.

"If he were to form part of a majority to scale back that principle, it would be a major sea change in the relationship between the executive branch and the courts, and one that would likely impose significant new constraints on the scope of federal regulatory authority on all topics -- from immigration and criminal law enforcement to environmental protection, consumer product safety, and drug regulation," Vladeck said.

"His position on this is more extreme than Justice Scalia," said Dan Goldberg of the progressive Alliance for Justice. "It would be hard to overstate the damage it would cause this nation and the American people."

Pryor is super-freak right; his hearings for the post he currently holds were contentious.

Pryor, 54, was subject to a years-long fight when Bush appointed him to the 11th Circuit, not least because of statements that Roe v. Wade is "the worst abomination in the history of constitutional law," and that it has "led to the slaughter of millions of innocent unborn children." He also purposely rescheduled a family trip to Disney World to avoid attending during "Gay Day", and as attorney general of Alabama wrote an amicus brief urging the Supreme Court to uphold laws banning gay sex.

Despite that extensive social conservative pedigree, some conservatives are reportedly pushing against Pryor as a pick because of a pro–transgender rights ruling he made in 2011.

With all of the left and some of the right disapproving of Pryor, Mitch McConnell and Mike Pence may be whispering to Trump that a Senate fight over this guy is one they could easily lose.  There are fuller profiles of all three at this Vox link, and more like that from Politico.  Minority Leader Schumer has promised a hard line on any nominee, but he was with the Senate delegation that met with Trump on Tuesday to discuss his choice, a group which included Charles Grassley and Diane Feinstein, the ranking members of the Judiciary committee.

I'd say the options for Democrats are limited to stalling a confirmation as long as possible.

Updates:  The odds may have moved.

Trump is now focused on another judge with a working-class background: Thomas Hardiman. As a former attorney, Hardiman has been less vocal about his personal views.
“Our role as judges is to interpret the law,” Hardiman said.

Still on the now very short list for the current vacancy is federal appeals judge Neil Gorsuch. But with Justice Anthony Kennedy likely to retire soon, Gorsuch could become a leading favorite for Mr. Trump’s second nomination.

And Trump favors employing the nuclear option to get his pick confirmed, if that's what it takes.

(Trump) would favor Senate Republicans changing voting rules to allow a simple majority of the Senate to approve his nominee for the U.S. Supreme Court if Democrats block his choice, he said in an interview airing on Thursday.

“I would. We have obstructionists,” Trump told Fox News, referring to possible use of the so-called nuclear option that would overturn Senate rules requiring 60 votes to overcome a procedural hurdle, or filibuster, for Supreme Court nominees.

There are currently 52 Republican senators in the 100-seat chamber.


Assuming all 52 Senate Republicans back Trump's nominee, Senate Majority Leader Mitch McConnell would either need to lure eight Democrats to his side or change the rules and ban the filibuster for Supreme Court nominations.

Last, in what could have been a blog post all its own, Ryan Cooper at The Week excoriates Senate Democrats for their timidity to this point in opposing Trump's cabinet picks.

Senate Democrats are ... the first target of liberal outrage, since they have to vote on Trump's cabinet nominees. They don't control the chamber, so it mostly doesn't matter in substantive terms how they vote — but it's still a powerful symbolic act. (Though they could have come close to picking off the wretched Mike Pompeo as CIA director, since Rand Paul voted against him.)

But not a single Democratic senator has voted against every nominee, as Paul Blest points out. Only Kirsten Gillibrand and Tom Udall have come close, voting against five of six. Six other caucus members have voted against four of six: Bernie Sanders, Cory Booker, Richard Blumenthal, Jeff Merkley, Ron Wyden, and Elizabeth Warren. On the other hand, fully 14 Democrats had voted for all six of Trump's nominees — and some of those in safe blue states, like Dianne Feinstein (California), Brian Schatz (Hawaii), Sheldon Whitehouse (Rhode Island), and Chuck Schumer (New York) — who is also the Minority Leader.


Republicans mounted total procedural obstruction to Democrats and President Obama, and it only worsened as his presidency passed. The goal, as then Senate Minority Leader Mitch McConnell said in 2010, was to "deny President Obama a second term." They filibustered nearly every bill, even ones that would go through 100-0, simply to gum up the calendar and eat up precious floor time. They filibustered nearly every judicial nominee (until Senate Democrats scaled back the filibuster), to keep liberals out of the courts — and last year, when Antonin Scalia died, Senate Republicans refused to even consider Obama's Supreme Court nominee for an entire year, in hopes that Trump would be able to fill the seat. That has literally never happened before.

This has been a nihilistic, will-to-power struggle for years now, and obviously so. Republicans now control the whole government due to happenstance and the idiotic Electoral College, but they're not moderating their policies to the slightest degree out of some sense of decorum. Instead, they're going to ram through their agenda as fast as possible, and try their utmost to disenfranchise enough liberals and rig the election procedures such that America becomes a permanent one-party state.

Harsher than most anything I've written.

It only takes one party to start a fight, and when you're already in one compromise is a guaranteed way to lose. Ordinary Democrats are finally seeing this truth, as shown by the gigantic marches all over the country during inauguration weekend, and later ones in Philadelphia and New York against Trump's anti-Muslim policies. Not even a week into his presidency and Trump is already facing massive unrest.

Elected Democrats are going to need to ditch their usual cringing, timid, compromising ways if they want to have a chance at a political career in the future. Even fairly milquetoast liberals are crying out for some sort of firebrand to lead a ferocious, determined resistance. If, say, Tom Udall or Kirsten Gillibrand can realize this, their national profile will quickly grow.

But those who vote for Jeff Sessions to become attorney general might face a primary challenge instead.

So let it be done.

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