U.S. Senate’s Nuclear Decision

The Senate Republicans’ decision to go nuclear could have lasting effects for decades but it accomplished their goal of getting Neil Gorsuch confirmed to the Supreme Court.

By Mike Brest 5/4/2017

170201_POL_Gorsuch-dems.jpg.CROP.promo-xlarge2

The United States Senate voted to confirm President Trump’s nominee, Judge Neil Gorsuch, to fill the vacancy on the Supreme Court earlier this month. The 49-year-old federal judge could play a major role in solidifying a conservative court for decades to come. His confirmation process was defined by the stark differences across party lines. The hearings were filled with questions of ethics and inquiries as to where Gorsuch stood on controversial issues.

The opening on the bench came from the sudden and unexpected passing of notoriously conservative Justice Antonin Scalia in February of 2016. With a year left in President Obama’s office, he appointed Judge Merrick Garland to the highest bench in the country. But on the day of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) publicly stated that the Republicans would not even begin the confirmation process. Garland’s nomination just withered away until it expired with the ending of the 114th Congress.

With Democrats feeling robbed of that ninth seat, they planned to filibuster whomever President Trump nominated. It became even more vital for them when such a conservative judge as Gorsuch was picked to fill the vacancy. They filibustered, but it was merely a formality because the Republicans planned to go “nuclear.” Prior to the confirmation process beginning, a potential justice would need a supermajority, or 60 of the 100 Senate votes, but all it took to lower that threshold would be a simple majority. So, the Republicans voted to reduce the number of votes to confirm a judge, and then they voted to end the filibuster to vote on Judge Gorsuch. The vote which was seemingly minor, altered 200 years over Senate history in the matter of minutes. He was confirmed with a 54-45 vote.

In approximately two hundred years of the Senate, there were hundreds of party line votes, but eliminating the ability for the minority to filibuster was not a real option until now. The divisiveness of the Senate is higher now than it has ever been. The level of partisanship, which has developed over time, made this a viable and somewhat expected decision.

During the hearing in front of the Senate Judiciary Committee, Democrats were critical of Gorsuch’s voting records, while the Republicans were more than happy to loft questions for the nominee to hit them out of the park. Democrats regularly used his previous rulings and decisions to determine how he’ll vote in the future. They asked him dozens of loaded questions to force him to pick sides on some of the most controversial topics in politics.

“I think the Senate should look at their qualifications, what they’ve written, and ask them about their view of the proper role of the president in foreign policy” former California Congressman and current vice president of the Aspen Institute Mickey Edwards said. “I think it is wrong to ask about a particular decision. I think you don’t ever want to have a justice or judge, state, federal whatever, where you try to know in advance what they would rule on a case. You don’t want judges to know how they’ll rule on a case. They have to look at each individual case on its own merits.”

Only three senators crossed party lines on this vote, while the two independents in the Senate voted against Gorsuch. The three Democrats who voted in favor of the judge were Sens. Joe Manchin (D-WV), Hiedi Heitkamp (D-ND) and Joe Donnelly (D-IN). All three Senators are up for reelection in 2018, and their seats are considered up for grabs. West Virginia, North Dakota and Indiana also all voted for Mitt Romney in 2012 and Donald Trump in 2016. So it would surprise no one if the Republican Party targeted those vacancies. Coming from red states and facing reelection in 2018, it makes sense why these Senate Democrats would go against their own party by voting in favor of Judge Gorsuch – keeping constituents happy is the best way to retain their seat in the Senate.

The three Senators who crossed the political lines to vote in favor of Gorsuch were the fewest to do so for any of the current justices on the Supreme Court. During President Obama’s time office he nominated two justices, Elena Kagan and Sonia Sotomayor. Five Republicans voted for Justice Kagan and nine voted in favor of Sotomayor. Before them, the most recent justice to be confirmed was Samuel Alito in 2006 under President Bush. Only four Democrats voted for him. But for the five justices who have served on the bench the longest, there was an average of 30 senators who voted across party lines to vote in favor of the candidate.

Screen Shot 2017-04-20 at 9.51.36 AM
This graph depicts the number of Senators who crossed party lines to vote in favor of each of the nine current Supreme Court justices. (Wikipedia was used to obtain data used in this graph)

The Republican Party’s decision to go nuclear was expected but dreaded by the members of Congress and politicians in general. Many senators publicly expressed disappointment over the current political climate that would warrant the Republicans going nuclear. The Democrats filibustered knowing full well that the Republicans could vote to lower the threshold to confirm a Supreme Court nominee and the Republicans called the Democrats’ bluff. While it’s hard to predict exactly how this will affect Congress going forward, it’s vital to explore all possible options.

The Brookings Institution is a non-profit think tank and their congressional expert Molly E. Reynolds said, “I tend to think that Senate parties are relatively short-sighted, evaluating the immediate political consequences of a given choice.”

Now that a confirmation only requires a simple majority, confirming a Supreme Court candidate suddenly became significantly easier. Theoretically if the same party controlled the Senate and White House, they would automatically be able to confirm the nominee with people voting purely by party by virtue of having the majority. It would interesting to see what would happen if the president and Senate were of opposite parties.

Reynolds added, “Going forward, I do think that the change will make it more difficult to confirm justices during divided government but it’s hard to say whether it will be impossible.”

The president at the time will be forced to nominate a very centrist judge to even have the chance of him or her being confirmed if the Senate and White House are divided. But as the Republicans did for Merrick Garland, if the Senate and White House are divided and the president nominates someone of his or her own party, they could refuse to hold hearings for the Supreme Court candidate.

Ultimately, the Republicans’ decision to go nuclear was a result of an accumulation of actions dating back decades. Decades ago there was shift in Congress and it resulted in everything becoming a partisan issue. Following party lines became more important than voting one’s conscious or voting for what someone actually believes in. The shift in partisanship for Supreme Court nominations began when President Ronald Reagan announced his nomination of Robert Bork to serve as an Associate Justice on the Supreme Court in 1987. There were serious character concerns of Bork and liberals used all of their power to keep him off the bench.

Howard Schwartz, an American University Law professor, said that the Republicans use a “no-holds barred fight on the part of partisan Republicans who had been out of power. Power became the be all end all.”

Judge Bork’s confirmation was doomed to fail, and it did just that when the Senate voted 42-58 on October 23, 1987. The Senate at the time was made up of 54 Democrats and 46 Republicans. Two Democrats voted in favor of Bork, while six Republicans voted against him. The Bork vote is one of the first step away from civil and political discourse and towards the bipartisan mudslinging atmosphere that currently bogs down this country.

“Well it’s part of an ongoing obstructionism that goes back to when Newt Gingrich came aboard back in the 1970s and 80s, the Republican Party switched really from being willing to be a party that wanted to govern and could make deals and essentially do things that were useful for the country,” Schwartz added.

More recently though, the Democrats went nuclear back in 2013 and it was the step that led to the Republicans doing the same now. At the time, President Obama was trying to get three judges confirmed onto the appellate court in Washington D.C. Obama was also trying to get his cabinet confirmed. But, the Republicans publically announced a plan to fight. So, the Dems, led by House Majority Leader Harry M. Reid (D-Nev.) voted to lower the threshold for confirming federal judicial nominees and executive office appointments from a supermajority to a simple one. They made such a drastic decision because the Democrats considered the Republicans’ actions to be unreasonable, extremely partisan, and in bad faith. Congressman Reid’s strategy though made way for current majority leader, Mitch McConnell’s (R-KY) plan that dated back to Justice Scalia’s death.

American University law professor Stephen Wermiel said, “McConnell had basically staked his entire reputation as Senate leader and Trump to some degree his reputation as president on this nomination, there was no way barring some scandal that they could allow this nomination to let it sit.”

“If they had a playbook of options that was not an option in the playbook, it just couldn’t happen. McConnell, since November, has been like a peacock strutting his feathers about how he saved the seat for a Republican president,” Wermiel added.

Fasting forwarding to the future, it will be very interesting to see how the next vacancy will play out. There are currently three justices all over the age of 75, and all of them are known for liberal rulings. With the current composition of liberals and conservative at four to four with Justice Kennedy often providing the deciding vote, should a Democrat step down, the bench could get even more right winged. Justices Ginsburg, 84, Kennedy, 80, and Breyer, 78, may be pressured to remain in their positions until the next administration, or at least until after the 2018 Senatorial elections should the Democrats win back the Senate.

The 2018 primaries could prove to be vital should another seat open on the Supreme Court. The current Senate is broken into 52 Republicans, 46 Democrats and 2 independents. In 2018 midterm elections, the Dems will have 23 seats up for reelections, the Reps will have 8 and the two independents will be fighting to maintain their positions. For the Democrats to retake the Senate they would have to have a net gain of five seats, but that could be reduced to three should the two independents retain their seats. Should the Democrats win back the majority, albeit unlikely, it could automatically prevent President Trump from nominating another justice should a seat open up.

Filibusters are a tool for the minority party in the Senate. It allows the party with fewer seats the ability to object and prevent something should they deem it necessary. Some filibusters are viewed as more necessary than others. The Senate has prided itself in the past for being one of the only government entities to provide the minority political party a legitimate preventative measure to block legislation. However, after both parties resorting to the nuclear option in the last four years, filibusters have become more limited in situations they can be utilized. But if the Senate chooses to continue down this path of gridlock and partisanship, it won’t be long before all filibusters for any Senate debate will be banned.

Source List:

Professor Howard Schwartz – in person interview on April 10

Professor Stephen Wermeil – phone interview on April 17

Molly E. Reynolds, Brookings – phone interview on April 20

Congressman Mickey Edwards, Aspen Institute – phone interview on April 24

U.S. Senate’s Nuclear Decision

The Senate Republicans’ decision to go nuclear could have lasting effects for decades but it accomplished their goal of getting Neil Gorsuch confirmed to the Supreme Court.

By Mike Brest 4/24/2017

170201_POL_Gorsuch-dems.jpg.CROP.promo-xlarge2

The United States Senate voted to confirm President Trump’s nominee, Judge Neil Gorsuch, to fill the vacancy on the Supreme Court earlier this month. The 49-year-old federal judge could play a major role in solidifying a conservative court for decades to come. His confirmation process was defined by the stark differences separated by party lines. The hearings were filled with questions of ethics and inquiries as to where Gorsuch stood on controversial issues.

The opening on the bench came from the sudden and unexpected passing of notoriously conservative Justice Antonin Scalia in February of 2016. With a year left in President Obama’s office, he appointed Judge Merrick Garland to the highest bench in the country. But on the day of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) publically stated that the Republicans would not even begin the confirmation process. Garland’s nomination just withered away until it expired with the ending of the 114th Congress.

With Democrats feeling robbed of that ninth seat, they planned to filibuster whomever President Trump nominated. It became even more vital for them when such a conservative judge was picked to fill the vacancy. They filibustered, but it was merely a formality because the Republicans planned on going “nuclear.” Prior to the confirmation process beginning, a potential justice would need a supermajority, or 60 of the 100 Senate votes, but all it took to lower that threshold would be a simple majority. So, the Republicans voted to reduce the number of votes to confirm a judge, and then they voted to end the filibuster to vote on Judge Gorsuch. He was confirmed with a 54-45 vote.

During the hearing in front of the Senate Judiciary Committee, Democrats were critical of Gorsuch’s voting records, while the Republicans were more than happy to loft questions for the nominee to hit them out of the park. Democrats regularly used his previous rulings and decisions to determine how he’ll vote in the future. They asked him dozens of loaded questions to force him to pick sides on some of the most controversial topics in politics.

“I think the Senate should look at their qualifications, what they’ve written, and ask them about their view of the proper role of the president in foreign policy” former Congressman and current Vice President of the Aspen Institute Mickey Edwards said. “I think it is wrong to ask about a particular decision. I think you don’t ever want to have a justice or judge, state, federal whatever, where you try to know in advance what they would rule on a case. You don’t want judges to know how they’ll rule on a case. They have to look at each individual case on its own merits.”

Only three senators crossed party lines on this vote, while the two independents in the senate voted against Gorsuch. The three Democrats that voted in favor of the judge were Sens. Joe Manchin (D-WV), Hiedi Heitkamp (D-ND) and Joe Donnelly (D-IN). All three Senators are up for reelection in 2018 and their seats are considered up for grabs. West Virginia, North Dakota and Indiana also all voted for Mitt Romney in 2012 and Donald Trump in 2016 so it would surprise no one if the Republican Party targeted those vacancies. Coming from red states and facing reelection in 2018, it makes sense why these Senate Democrats would ostracize their own party by voting in favor of Judge Gorsuch – keeping constituents happy is the best way to retain their seat in the Senate.

The three Senators who crossed the political lines to vote in favor of a justice were the fewest to do so for any of the current justices on the Supreme Court. During President Obama’s time office he nominated two justices, Elena Kagan and Sonia Sotomayor. Five Republicans voted for Justice Kagan and nine voted in favor of Sotomayor. Before them, the most recent justice to be confirmed was Samuel Alito in 2006 under President Bush. Only four Democrats voted for him. But for the five justices who have served on the bench the longest, there was an average of 30 senators who voted across party lines to vote in favor of the candidate.

Screen Shot 2017-04-20 at 9.51.36 AM
This graph depicts the number of Senators who crossed party lines to vote in favor of each of the nine current Supreme Court justices.

The Republican Party’s decision to go nuclear was expected but dreaded by the members of Congress and politicians in general. Many senators publicly expressed disappointment over the current political climate that would warrant the Republicans going nuclear. The Democrats filibustered knowing full well that the Republicans could vote to lower the threshold to confirm a Supreme Court nominee and they called the Democrats bluff. While it’s hard to predict exactly how this will affect Congress going forward, it’s vital to explore all possible options.

The Brookings Institute is a non-partisan, non-profit think tank and their congressional expert Molly E. Reynolds said, “I tend to think that Senate parties are relatively short-sighted, evaluating the immediate political consequences of a given choice.”

Now that a confirmation only requires a simple majority, confirming a Supreme Court candidate suddenly became significantly easier. Theoretically if the same party controlled the senate and white house, they would automatically be able to confirm the nominee with people voting purely by party by virtue of having the majority. It would interesting to see what would happen if the president and Senate were of opposite parties.

Reynolds added, “Going forward, I do think that the change will make it more difficult to confirm justices during divided government but it’s hard to say whether it will be impossible.”

Only time will tell if the president at the time will be forced to nominate a very centrist judge to even have the chance of him or her being confirmed if the Senate and White House are divided. But as the Republicans did for Merrick Garland, if the Senate and White House are divided and the president nominates someone of his or her own party, they could refuse to hold hearings for the Supreme Court candidate.

Ultimately, the Republicans’ decision to go nuclear was a result of an accumulation of actions dating back decades. Decades ago there was shift in congress and it resulted in everything becoming a partisan issue. Following party lines became more important than voting one’s conscious or voting for what someone actually believes in. The shift began when President Ronald Reagan announced his nomination of Robert Bork to serve as an Associate Justice on the Supreme Court in 1987. There were serious character concerns of Bork and liberals used all of their power to keep him off the bench.

Howard Schwartz, an American University Law professor, said that the Republicans now use a “no holds barred fight on the part of partisan Republicans who had been out of power. Power became the be all end all.”

Judge Bork’s confirmation was doomed to fail, and it did just that when the Senate voted 42-58 on October 23, 1987. The Senate at the time was made up of 54 Democrats and 46 Republicans. Two Democrats voted in favor of Bork while six Republicans voted against him. The Bork vote was the first step away from civil and political discourse and towards the bipartisan mudslinging atmosphere that currently bogs down this country.

“Well it’s part of an ongoing obstructionism that goes back to when Newt Gingrich came aboard back in the 1970s and 80s, the Republican Party switched really from being willing to be a party that wanted to govern and could make deals and essentially do things that were useful for the country,” Schwartz added.

More recently though, the Democrats went nuclear back in 2013 and it was the step that led to the Republicans doing the same now. At the time, President Obama was trying to get three judges confirmed onto the Appellate court in Washington D.C. He was also trying to get his cabinet confirmed. But, the Republicans publically announced a plan to fight. So, the Dems, led by House Majority Leader Harry M. Reid (D-Nev.) voted to lower the threshold for confirming federal judicial nominees and executive office appointments from a supermajority to a simple one. They made such a drastic decision because the Democrats considered the Republicans’ actions to be unreasonable, extremely partisan, and in bad faith. Congressman Reid’s strategy though made way for current majority leader, Mitch McConnell’s (R-KY) plan that dated back to Justice Scalia’s death.

“McConnell had basically staked his entire reputation as Senate leader and Trump to some degree his reputation as president on this nomination, there was no way barring some scandal that they could allow this nomination to let it sit” American University law professor Stephen Wermiel said.

“If they had a playbook of options that was not an option in the playbook, it just couldn’t happen. McConnell, since November, has been like a peacock strutting his feathers about how he saved the seat for a Republican president,” Wermiel added.

Fasting forwarding to the future, it will be very interesting to see how the next vacancy will play out. There are currently three justices all over the age of 75, and all of them are known for liberal rulings. With the current break down of liberals and conservative at four to four with Justice Kennedy often providing the deciding vote, should a Democrat step down, the bench could get even more right winged. Justices Ginsburg, 84, Kennedy, 80, and Breyer, 78, may be pressured to remain in their positions until the next administration, or at least until after the 2018 Senatorial elections should the Democrats remarkably win back the Senate.

The 2018 primaries could prove to be vital should another seat open on the Supreme Court. The current Senate is broken into 52 Republicans, 46 Democrats and 2 independents. In 2018 midterm elections, the Dems will have 23 seats up for reelections, the Reps will have 8 and the two independents will be fighting to maintain their positions. For the left to retake the Senate they would have to have a net gain of five seats, but that could be reduced to three should the two independents retain their seats. Should the Democrats win back the majority, albeit unlikely, it could automatically prevent President Trump from nominating another justice should a seat open up.

Filibusters are a tool for the minority party in the Senate. It allows the party with fewer seats the ability to object and prevent something should they deem it necessary. Some filibusters are viewed as more necessary than others. The Senate has prided itself in the past for being one of the only government entities to provide the minority political party a legitimate preventative measure to block legislation. However, after both parties resorting to the nuclear option in the last four years, filibusters have become more limited in situations they can be utilized. But if the Senate chooses to continue down this path of gridlock and partisanship, it won’t be long before all filibusters will be banned.

 

Source List:

Professor Howard Schwartz – in person interview on April 10

Professor Stephen Wermeil – phone interview on April 17

Molly E. Reynolds, Brookings – phone interview on April 20

Congressman Mickey Edwards, Aspen Institute – phone interview on April 24

Gorsuch Senate Hearing Gets Off to Tumultuous Start (Revised)

By Mike Brest

 

The Senate Judiciary Committee convened today for the first of four days where both Democrats and Republicans took turns asking President Trump’s nominee Judge Neil Gorsuch questions. In the past, these hearings for Supreme Court nominee have been largely procedural with little contention, but this is shaping up to be a hard fought battle after the Republicans refused to hold hearings for former President Obama’s nomination, Merrick Garland, last year.

Senator Charles Grassley (R-IA) the Chairman of the Senate Judiciary Committee led the hearing. Senator Dianne Feinstein (D-CA) also had a large role as the ranking member of the committee. Senator Grassley opened the hearing with criticisms of the Obama Administration, while then praising Judge Gorsuch’s previous rulings. Then during Senator Feinstein’s opening remarks, she was significantly more blunt and direct.

The contrast in approach by party became a theme of the hearing where republicans appeared more calm and at ease, whereas democrats appeared to be more fearful of the future. Almost every democrat who spoke referenced the senate republicans’ refusal to hold even a hearing for Judge Merrick Garland. Conversely, many republicans sought to debunk the negatives the democrats brought up without addressing Gartland.

Senator Patrick Leahy (D-VT), like the other democrats, used this opportunity to express their displeasure with the events that have taken place since Justice Scalia’s death. In regards to the Senate’s decision not to hold any hearings for Judge Gartland, he said it was, “an extraordinary blockade” adding it was “one of the greatest stains in the of the 200 year history of this committee.” The Senator from Vermont added that Gorsuch was “selected by interest groups” because “these groups are obviously confident they’ll share the agenda.”

One of the biggest knocks liberals have had against Judge Gorsuch so far has been his unwillingness to denounce President Trump’s strong criticism towards judges that have ruled against him. Both of President Trump’s immigration bans have been halted via injunction. Both times, the leader of the country has taken to Twitter to express his frustrations saying, “The opinion of this so-called judge, which essentially takes law-enforcement away form our country, is ridiculous and will be overturned!” While Judge Gorsuch reportedly privately denounced the comments, he was unwillingly to on the record or say it in front of the Judiciary Committee.

“I need to know that you can be an independent check and balance on the administration that has nominated you, and on any administration that follow,” Senator Leahy said.

The death of Justice Scalia thirteen months ago, created a vital open seat on the bench. The bench has four liberals and four conservatives, so the only opening could potentially be the deciding vote in a number of cases the court could hear. With the impending addition of Gorsuch, the bench will remain tied with Judge Kennedy often being the tiebreaker.

“I firmly believe the Constitution is intended to evolve as our country evolves,” Senator Dianne Feinstein stated. “We’d still have segregated schools, women wouldn’t be entitled to rights, and discrimination for LBTQ people would be allowed. That’s why it bothers me when I hear [that] Neil Gorsuch is an originalist.”

Senator Feinstein added, “Our job is to assess how nominees and decisions will impact the people. The Supreme Court has the final say on whether a woman will continue to have control over her own body… it is the Supreme Court that will have the ultimate say on where employers will be accountable for discrimination.”

Many former nominees deflected questions of personal opinion in the way Gorsuch did yesterday. It has been a common practice for the Judicial Committee to ask similar questions. During the Clinton administration, current Justice Ginsburg famously told the committee that a judge should not share their opinion but her opinion was not relevant to whether or not it was constitutional.

Gorsuch has been very tightlipped and has let his record do the talking. When discussing Gorsuch’s silence, Senator Orrin G. Hatch (R-UT) said, “you know who said ‘A judge sworn impartially could offer no forecast, no hands for the specifics of the case it would be the entire process?’ – Ruth Bader Ginsberg.”

Senator John Cornyn (R-TX) referenced the same quote as a way to delegitimize and criticize the demand on Judge Gorsuch to admit his personal opinions. It also acknowledging that a judge’s personal feelings are irrelevant in regards to their decision on the constitutionality of a law. But it’s also a meaningful quote because it was from Justice Ruth Bader Ginsberg, arguably the most liberal justice on the Supreme Court.

Many democrats are conflicted on how much of a fight they should put up against Gorsuch confirmation. Senator Chuck Schumer (D-NY) has previously said that the democrats plan on filibustering the confirmation. Should that happen, it would require 60 votes to end it. With only 52 conservatives in the Senate, that would require eight democrats to vote to end it – which would put democrats from red states in a difficult position facing reelection in 2018.

While liberal groups have referenced former cases that have been troubling to them, there are multiple judges that could vacate their seats under the Trump administration. If democrats fight this nomination, many believe it could spur the president to nominate an even stauncher conservative. It is worth noting that the Republicans did not fight either of President Obama’s first two Supreme Court nominees Sonia Sotomayor, 68-31 in favor, and Elena Kagan, 63-37 in favor, although they were replacing liberal justices as well.

 

 

 

 

The Political Divide on Gorsuch’s Nomination

By: Mike Brest

 

President Trump’s nomination of Neil Gorsuch to fill the empty seat on the Supreme Court has been met with both praise and condemnation from organizations depending on which side of the aisle they’re standing. The empty seat represents a key position considering the void is left following the death of the consistently conservative Antonin Scalia. With a number of vital decisions heading the Supreme Court’s way, the choice to fill the ninth seed is important to both parties.

Many liberal organizations have raised legitimate concerns about Judge Gorsuch’s previous rulings. While there are some exceptions, many of the organizations and foundations that supported Hillary Clinton’s campaign, also are now fighting President Trump’s nomination. Unsurprisingly though, many of President Trump’s biggest advocates commended the selection.

Civil-rights organizations have protested the nomination arguing he often made rulings limiting fundamental rights. Last month, 108 civil rights organizations signed a letter sent to senators asking them to oppose the nomination. Groups that were a part of it include Planned Parenthood, the ACLU and the Human Rights Campaign. Knowing his history on fundamental rights, like with the Hobby Lobby case, these organizations have apprehension of his residing on the highest court in the land.

The Supreme Court is expected to handle multiple landmark cases coming up and having the tie-breaking judge confirmed could prove to be critical. One they were expected to listen to was Grimm vs. Gloucester County school board. The case will be vital for trans people. Grimm wanted to begin using the male bathroom, the gender he identifies with, but the school district would not allow it. With President Trump revoking President Obama’s guidelines on trans people and Title IX last month, the Supreme Court sent it back to the appeal’s court.

Other major issues that could come to the highest court in the land in the near future includes a potential repeal and retry Roe v. Wade, gun control, and immigration reform. All of these issues would likely be voted down party lines. So, as of now that would result in 4-4 ties. Gorsuch’s confirmation would tip the scale. But looking down the road, it looks like barring an unexpected resignation; the next available seat will be replacing one of the four democrats. Therefore, President Trump may have the opportunity to leave the White House with a 6-3 Supreme Court in favor of conservatives.

“Judge Gorsuch’s record, including his decision in the Hobby Lobby case, raises questions about whether he would allow businesses and individuals to opt out of nondiscrimination laws based on religious objections,” Thomas Dresslar, the Media Relations Associate from the ACLU said adding, “and his commitment to an ‘originalist’ theory of constitutional interpretation that disregards our nation’s evolving understandings of constitutional rights is also of concern.”

One common complaint from liberal organizations has been Gorsuch’s role in the Hobby Lobby Supreme Court case. The Green family filed a lawsuit against Sylvia Burwell, the Secretary of Health and Human Services in 2012. As a for-profit company Hobby Lobby was required to provide healthcare to employees, including contraceptives. The family though, argued that providing birth control violated their first amendment rights for religious protection. At the time, religious organization employers and non-profit religious institutions were legally allowed to get exemptions from providing care if it violated their beliefs. Gorsuch, a judge in a lower court that heard the case, sided that the business had the right to deny coverage for things that violated their religious beliefs.

On the other hand, many organizations that are considered right-winged on the political spectrum have supported Gorsuch’s nomination. Those in favor of him generally are organizations that have a strong belief in the first amendment, which he has proven time and time again.

Neil Gorsuch is “an excellent choice” according to Kristina Hernandez, the Director of Communication as Student for Life of America, before adding, “SFLA does plan to have rallies and other events in support of his nomination and hopeful confirmation. We want him to be confirmed quickly so he can take his place on the Court, which is of great importance to the pro-life movement as we seek to make abortion unthinkable.”

Students for Life of America is a pro-life organization dedicated to outlawing abortion. They have specific branches dedicated to doctors, lawyers and other professions.

Prior to the nomination, Gorsuch sat on the Tenth Circuit Court of Appeals, where he was known for having an originalist interpretation of the Constitution. Prior to holding that position, he spent time at a private law firm. He also spent time as a clerk for David Sentelle, an appeals court judge, and Justices Byron White and current Justice Anthony Kennedy.

The nomination process is expected to begin later this month and it requires a couple simple checks, then a committee vote and a Senate one. In terms of the final vote, a majority plus one vote is required for official confirmation, but that shouldn’t be too problematic considering the Republicans have 54 seats.

Gorsuch Senate Hearing Gets Off to Tumultuous Start

Judge Gorsuch’s nomination hearing began yesterday and if it is a sign of what’s to come, the next couple of weeks will be very interesting.
Screen Shot 2017-03-20 at 12.04.06 PM
An image to capture the circus that is Judge Neil Gorsuch’s hearing.

By: Mike Brest

The Senate Judiciary Committee convened today for the first of four days where both democrats and republicans took turns asking President Trump’s nominee Judge Neil Gorsuch questions. In the past, these hearings have been procedural with little animosity, but this is shaping up to be a hard fought battle after the republicans refused these hearings for former President Obama’s nomination last year.

Senator Charles Grassley (R-IA) the Chairman of the Senate Judiciary Committee led the hearing. Senator Dianne Feinstein (D-CA) also had a large role as the ranking member of the committee. Senator Grassley opened the hearing with criticisms of the Obama Administration, while then praising Judge Gorsuch’s previous rulings. Then during Senator Feinstein’s opening remarks, she was significantly more blunt and direct.

The contrast in approach by party became a theme of the hearing where republicans were more easygoing and nonchalant, whereas democrats came across more fearful of the future. Almost every democrat who spoke referenced the senate republicans’ refusal to hold even a hearing for Judge Merrick Gartland. Conversely, many republicans sought to debunk the negatives the democrats brought up without addressing Gartland.

Senator Patrick Leahy (D-VT), like the other democrats, used this opportunity to express their displeasure with the events that have taken place since Justice Scalia’s death. In regards to the Senate’s decision not to hold any hearings for Judge Gartland, he said it was, “an extraordinary blockade” adding it was “one of the greatest stains in the of the 200 year history of this committee.” The Senator from Vermont added that Gorsuch was “selected by interest groups” because “these groups are obviously confident they’ll share the agenda.”

One of the biggest knocks liberals have had against Judge Gorsuch so far has been his unwillingness to denounce President Trump’s aggression towards judges that have ruled against him. Both of President Trump’s immigration bans have been halted via injunction. Both times, the leader of the country has taken to Twitter to express his frustrations saying, “The opinion of this so-called judge, which essentially takes law-enforcement away form our country, is ridiculous and will be overturned!” While Judge Gorsuch privately denounced the comments, he was unwillingly to on the record.

“I need to know that you can be an independent check and balance on the administration that has nominated you, and on any administration that follow,” Senator Leahy said.

With the death of Justice Scalia thirteen months ago, it opened up a vital seat on the bench. While the Supreme Court shouldn’t be viewed as opposing teams jockeying for numbers, the bench has four liberals and four conservatives, so the only opening could potentially be the deciding vote in a number of cases the court could hear.

“I firmly believe the Constitution is intended to evolve as our country evolves,” Senator Feinstein stated. “We’d still have segregated schools, women wouldn’t be entitled to rights, and discrimination for LBTQ people would be allowed. That’s why it bothers me when I hear Neil Gorsuch is an originalist.”

Senator Feinstein added, “Our job is to asset how nominees and decision will impact the people. The supreme court has the final say on whether a woman will continue to have control over her own body… it is the Supreme Court that will have the ultimate say on where employers will be accountable for discrimination.”

There have been a number of different politicians asking Judge Gorsuch for his opinion on certain issues. He has been very tightlipped and has let his record do the talking. When discussing this interesting phenomena, Senator Orrin G. Hatch (R-UT) said, “you know who said ‘A judge sworn impartially could offer no forecast, no hands for the specifics of the case it would be the entire process?’ – Ruth Bader Ginsberg.”

Senator John Cornyn (R-TX) referenced the same quote as a way to delegitimize and criticize the demand on Judge Gorsuch to admit his personal opinions. It also acknowledging that a judge’s personal feelings are irrelevant in regards to their decision on the constitutionality of a law. But it’s also a meaningful quote because it was from Justice Ruth Bader Ginsberg, arguably the most liberal justice on the Supreme Court.

Many democrats are conflicted on how much of a fight they should put up against Gorsuch confirmation. Senator Chuck Schumer (D-NY) has previously said that the democrats plan on filibustering the confirmation. Should that happen, it would require 60 votes to end it. With only 52 conservatives in the Senate, that would require eight democrats to vote to end it – which would put democrats from red states in a difficult position facing reelection in 2018.

While liberal groups have referenced former cases that have been troubling to them, there are multiple judges that could vacate their seats under the Trump administration. If democrats fight this nomination, many believe it could spur the president to nominate an even stauncher conservative. It is worth noting that the Republicans did not fight either of President Obama’s first two Supreme Court nominees Sonia Sotomayor and Elena Kagan although they were replacing liberal justices as well.

The Political Divide on Gorsuch’s Nomination

With such a influential seat on the bench available, many organizations are fighting for their lives to either prevent Gorsuch’s confirmation or to get him in faster.
By Mike Brest

President Trump’s nomination of Neil Gorsuch to fill the empty seat on the Supreme Court has been met with both praise and cries from organizations depending on which side of the aisle they’re standing. The empty seat represents a key position considering the void is left following the death of the consistently conservative Antonin Scalia.

Many liberal organizations have raised significant concerns about Judge Gorsuch’s previous rulings. While there are some exceptions, many of the organizations and foundations that supported Hillary Clinton’s campaign, also are now fighting President Trump’s nomination. Conversely and unsurprisingly, many of President Trump’s biggest advocates commended the selection.

Civil rights organizations have protested the nomination arguing he has a spotted past with upholding fundamental rights. Last month more than 100 civil rights organizations signed a letter sent to senators asking them to oppose the nomination. Groups that were a part of it include Planned Parenthood, the ACLU and the Human Rights Campaign.

            “Judge Gorsuch’s record, including his decision in the Hobby Lobby case, raises questions about whether he would allow businesses and individuals to opt out of nondiscrimination laws based on religious objections,” Thomas Dresslar, the Media Relations Associate from the ACLU said adding, “and his commitment to an ‘originalist’ theory of constitutional interpretation that disregards our nation’s evolving understandings of constitutional rights is also of concern.”

One common complaint from liberal organizations has been Gorsuch’s role in the Hobby Lobby Supreme Court case. The Green family filed a lawsuit against Sylvia Burwell, the Secretary of Health and Human Services in 2012. As a for-profit company Hobby Lobby was required to provide healthcare to employees, including contraceptives. The family though, argued that providing birth control violated their first amendment rights for religious protection. At the time, religious organization employers and non-profit religious institutions were legally allowed to get exemptions from providing care if it violated their beliefs. Gorsuch, a judge in a lower court that heard the case, sided that the business had the right to deny coverage for things that violated their religious beliefs.

On the other hand, many organizations that are considered right-winged on the political spectrum have supported Gorsuch’s nomination. Those in favor of him generally are organizations that have a strong belief in the first amendment, which he has proven time and time again.

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President Trump and Neil Gorsuch shaking hands after the official announcement 

            Neil Gorsuch is “an excellent choice” according to Kristina Hernandez, the Director of Communication as Student for Life of America, before adding, “SFLA does plan to have rallies and other events in support of his nomination and hopeful confirmation. We want him to be confirmed quickly so he can take his place on the Court, which is of great importance to the pro-life movement as we seek to make abortion unthinkable.”

Students for Life of America is a pro-life organization dedicated to outlawing abortion. They have specific branches dedicated to doctors, lawyers and other professions.

The Supreme Court is expected to handle multiple landmark cases coming up and having the tie-breaking judge confirmed could prove to be critical. One they were expected to listen to was Grimm vs. Gloucester County school board. The case will be vital for trans people. Grimm wanted to begin using the male bathroom, the gender he identifies with, but the school district would not allow it. With President Trump revoking President Obama’s guidelines on trans people and Title IX last month, the Supreme Court sent it back to the appeal’s court.

Other major issues that could come to the highest court in the land in the near future includes a potential repeal and retry Roe v. Wade, gun control, and immigration reform. All of these issues would likely be voted down party lines. So, as of now that would result in 4-4 ties. Gorsuch’s confirmation would tip the scale. But looking down the road, it looks like barring an unexpected resignation; the next available seat will be replacing one of the four democrats. Therefore, President Trump may have the opportunity to leave the White House with a 6-3 Supreme Court in favor of conservatives.

Prior to the nomination, Gorsuch sat on the Tenth Circuit Court of Appeals, where he was known for having an originalist interpretation of the Constitution. Prior to holding that position, he spent time at a private law firm. He also spent time as a clerk for David Sentelle, an appeals court judge, and Justices Byron White and current Justice Anthony Kennedy.

The nomination process is expected to begin later this month and it requires a couple simple checks, then a committee vote and a Senate one. In terms of the final vote, a majority plus one vote is required for official confirmation, but that shouldn’t be too problematic considering the Republicans have 54 seats.

The NRA and Susan B. Anthony’s List did not respond for comments when asked about their support for Judge Gorsuch’s nomination.

The Bipartisan Law Fraternity That Doesn’t Have a Position on the Supreme Court Nominee

By Mike Brest

Oksana Ryjouk, a junior and brother of the Phi Alpha Delta chapter, a pre law fraternity, discusses her reasons for rushing and President Trump’s Supreme Court nominee.

 

Oksana Ryjouk, a junior pre-law student from New Jersey, decided to rush the Phi Alpha Delta chapter, the pre-law fraternity, to help her career. She said, “I figured my family is immigrants, we don’t really have knowledge of how to enter this field, so I thought this was the best course of action.”

“I joined because ever since I was middle school or elementary school I’ve always wanted to be a lawyer to ‘change the world,’ Ryjouk, whose parents immigrated from Russia, said. “So international relations and being a lawyer and working towards human rights is my passion.“

With a number of different opinions within the chapter, they knowingly decide to limit their partisan conservation to “[unite] students and teachers of the law with members of the Bench and Bar in a fraternal fellowship designed to advance the ideals of liberty and equal justice under law…” according to their official motto.

With President Trump’s nomination of Judge Neil Gorsuch, Phi Alpha Delta has not and will not release any official statement nor will they about any other nominations. She said they aren’t a political group or an advocacy group, but a bipartisan one that promotes learning about law and helping others who cannot defend themselves.

She also mentioned that the fraternity has held a few respectful and thought provoking discussions on Gorsuch, and other potential nominees, both during the current administration and during President Obama’s time in office.

Ryjoik gave her opinion on the nomination and said, “From a non bias legal perspective, it’s very hard to discern whether or not human rights are at stake.” She add, “With Donald Trump’s nominees, a quarter of them are viable candidates I’d say in terms of Supreme Court nominations. However, knowing Donald Trump’s loyalties, representations, and qualifications of the cabinet members he’s chosen and the possible corrupt allegations that have been surfacing around his picks, I am very wary about his nominees.”

President Trump’s nomination of Judge Neil Gorsuch to fill the vacancy on the Supreme Court has been met with skepticism from liberal organizations as his cabinet nominees. The opening, which occurred following the death of Antonin Scalia almost a year ago exactly, will break the current 4-4 tie of liberals vs. conservatives and that has the left uneasy.

“Right now a lot of Democrats are willing to concede on this first nominee if there will only be one nominee,” Ryjouk stated. “If a second one arises [because] a liberal or Democrat or even a swing voter dies or vacates their seat, they will fight.”

Ryjouk’s point was in reference to Justice Ginsberg, 83, and Justice Kennedy, 80. Justice Ginsberg is considered liberal whereas Justice Kennedy was often the swing vote in many 5-4 decisions. Should either of them step down or die under the current administration, President Trump would have the opportunity to potentially make the court even more lopsided. 

            Ryjouk does have a question for every potential nominee. “Why do you personally think in the political climate that the United States is in now and will be in the twenty years… you are able to be a United States Supreme Court judge and uphold the law in an uncorrupt fashion?”

It appears that Judge Gorsuch confirmation hearing will begin by the end of next month. Should the democrats concede on Gorsuch and choose not to filibuster, it would only require a simple majority vote on the senate floor to confirm his nomination. If there is a filibuster however, then it would require 60 votes to end it, which would then lead to the simple majority final vote. In the event the vote to end the filibuster fails, the nomination would fail and President Trump would have to start the process all over again. Obama’s nominee, Merrick Gartland, never to start the confirmation process.