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Category Archives: Judicial
This week has the potential to be a significant week in Senate history. Over the past two presidencies, there was a rise in the use of the filibuster to block executive branch and lower court nominees. During the George W. Bush presidency, there were enough Democratic and Republican senators willing to work out a deal in which the Democratic senators agreed to vote for cloture on most nominations and the Republicans agreed not to invoke the “nuclear option” (exempting such nominations from the three-fifth’s rule for cloture by the vote of a majority of the Senate). During the Barack Obama presidency, there were not enough Republican senators willing to make such a deal and the Democrats were forced to go with the nuclear option on such executive branch and lower court nominees. However, the normal cloture rules were left in place for Supreme Court nominees.
As a starting point, here is the tentative schedule for the week. First, on Monday, the Judiciary Committee is scheduled to vote on the nomination of Neal Gorsuch. Right now, it appears likely that the committee will approve that nomination by a majority vote. Assuming that the Committee sends its report on that nomination to the Senate on Monday, that would trigger Rule XXXI which provides that (except by unanimous consent which will not be given) the Senate may not vote on a nomination on the same day that the nomination is reported to the full Senate. The Republicans will then attempt to call the matter up for a vote by unanimous consent on Tuesday. At least one Democrat will object, and the Republicans will file a cloture motion. Under Rule XXII, that motion will probably come up for a vote on Thursday and would take sixty votes to pass. Based on current whip counts, those sixty votes will not be there. If somehow, the Republicans get the sixty vote or invoke the nuclear option, Rule XXII would permit thirty more hours of debate resulting in a vote between Friday and Monday the 10th. (Technically, the Easter state work session is currently scheduled to start on the 10th and go through the 21st. The last two weeks of argument in this year’s Supreme Court term are the weeks of April 17 and April 24. So if Judge Gorsuch is confirmed this week, he could sit on the last thirteen arguments of this term. If the final vote takes place after April 21, Judge Gorsuch will not sit on any argument until the next term beginning in October.)
Assuming that the cloture vote goes as currently anticipated, the Republicans will have three options. Option number one would be to use the Easter recess to put pressure on vulnerable Democratic senators. Right now, the two most vulnerable Democratic senators (Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota) seem likely to vote for cloture, but there are other Democratic senators from other states that Trump won by wide margins. While there are ten Democratic senators on the 2018 ballot from states that Trump won (and Maine’s independent Senator is not necessarily going to join the Democrats on this issue), half of those senators are from swing states. The only two other Senators who come from states that were not too close to call in 2016 are Senator McCaskill from Missouri and Senator Donnelly from Indiana. Unless the Democratic senators hear from party activists that party activists do not really care about this issue, the vote is unlikely to change much after the recess. On the other hand, the Republican leadership would be in a stronger position to invoke the nuclear option after the recess. (The more moderate members of the Republican caucus might believe that the Democrats should at least be given some time to debate and make their case before the nuclear option is invoked.)
There is an old saying that a week is a lifetime in politics. In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching). It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.
The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act. There are several significant aspects to this non-event.
First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years. While Trump may have been a great negotiator, it is very easy to reach a two-sided deal. (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions. He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board. This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy. At that point, it’s not really about negotiating but selling.
One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate. The same is unfortunately true of disputes over the redistricting process. We are now almost six years into the current ten-year cycle of district lines. The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again. You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over. Unfortunately, we are not at that point yet.
This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission). This week’s decision involved the Virginia House and whether the drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment. The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race. Such a challenge focuses on particular district lines.
In this case, the challenges concerned twelve districts. The original three judge panel found that race was only the predominate reason for one of the twelve districts. In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations. While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason.
At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students. After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration. (Updated 3/6/17 — This morning, the Supreme Court sent the case back to the Fourth Circuit for reconsideration.)
As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females. The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender. At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender. When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required. When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation. In taking the case, the U.S. Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.
Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation. When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case. After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation.
While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority. Current case law is mostly bounded in the reality of current politics. Some conservatives want courts to disrupt the way things currently operate.
Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity. Congress then delegates responsibility for filling in the details to some department or agency. To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives). Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs. The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.
Current case law supports the ability to operate in this way through three doctrines. First is the current limited version of the non-delegation doctrine. Back before the New Deal, the courts regularly struck down regulations on the theory that Congress had improperly delegated legislative authority to the executive branch. Current law permits such delegation as long as the statute gives sufficient guidance to the administrative agency. While sufficient is somewhat in the eye of the beholder, most courts only require very broad guidance.
On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia. This nomination creates a significant question for Senate Democrats on how to proceed.
On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment: The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W. While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia. It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia. In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision. As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died. (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.) And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths. Given this reality, the question is how hard to fight this nomination.
The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle. In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan. However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016. At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes). However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes.
The big court story of 2016 was the February death of Justice Antonin Scalia. In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama. However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general. The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess). By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.
At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court. A win this past November would have led to a solid Democratic majority for the next two or three decades. However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues. As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners. (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.) At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet. The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters. Democratic voters may soon suffer for this failure of leadership.
In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree. By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular. Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies. The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices. (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years. Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)
The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics. To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much. However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election. This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split). Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines. That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review. While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.
When Justice Antonin Scalia died, Senate Republicans announced that they would not hold hearings because of their belief — not supported by any precedent — that a lame duck president should not get to fill a vacancy during his last year in office. Earlier this week, in a classic gaffe (i.e. he mistakenly told the truth), Senator John McCain announced that Senate Republicans intend to block any nominee that President Hillary Clinton might put forward. While Senator McCain has attempted to walk back this statement, he revealed what many of us have known to be true all along — the Republicans do not have any problem with any specific nominee that President Obama has or that President Clinton might put forward; there problem is with losing the majority on the Supreme Court.
If the Republicans can keep their current Senate majority, the process of blocking all nominees is simple — although with potential political consequences. They simply vote down any nominee. Their problem is if, as current polls suggest, the Democrats regain the Senate majority for the next two years. If that happens, we are potentially looking at the next conflict over the filibuster.
On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider. Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on. The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.
Predicting which cases the Supreme Court will actually take is almost impossible. The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases. Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner. But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.