[EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

Sat Mar 25 08:11:40 PDT 2017

So?

Look, lots of reasons for Democrats to be upset that they weren't able to fill the Scalia seat. It can be very disappointing to lose in politics. Also lots of reasons progressives would oppose Gorsuch on ideological grounds.

Lots of arguments to be made that ideology shouldn't have mattered--that Garland should have been considered on non-ideological, "neutral" qualifications only (though as I've mentioned, the Democrats took that ship out to sea decades ago, and show no interest in bringing it back to port now).

Lots of arguments that it would be nice if the Rs had held a hearing for Garland, but frankly, why bother? They weren't going to confirm him. Democrats wanted those hearings precisely to help them politically, which is why Republicans didn't want them. We call that "politics."

The Constitution imposes no constraints on how the Senate is to "advise," nor any limits on the reasons why it may withhold "consent." Republicans never denied Obama's right to "nominate," (that's why we got the Garland nomination; and of course, it's not clear what they could have done to stop the president from nominating someone). Yet many Democrats seem to think that they have some extra-constitutional ability to trim the advice the Senate is allowed to give ("don't send us a nominee before the election," they seem to think, is somehow not legitimate advice) and the grounds on which it may deny consent ("we're not going to confirm anyone before the election" apparently being illegitimate, though the source of the illegitimacy, other than Democratic outrage at not having all the power they'd like, seems unclear).

It's now perfectly within the rights of Democrats to try to filibuster Gorsuch (of course, unlike Garland, Gorsuch has majority support in the Senate). The effort will probably fail, because, following the precedent set by Harry Reid for lower court nominees, and that Tim Kaine averred would be applied to Supreme Court nominees in a Clinton presidency, the Senate will likely end the use of filibusters for Supreme Court nominees.

Both parties attempted to campaign on the issue of filling the Scalia seat. Progressive organizations spent millions on a PR campaign for the Garland nomination. In the end, voters who felt strongly about the issue voted heavily for Trump.

All of this is politics. It may not be the way we think politics ought to be practiced, but let's stop pretending this started with Republicans in March of 2016. Nor is it, as some have suggested, a constitutional crisis. Our constitution often leaves things to politics, that is, to the voters. There are many reasons a progressive might oppose Gorsuch, and individuals with differing views will consider some reasons more or less legit than others. But the idea that revenge for Garland is a some unique and particularly warranted justification strikes me as particularly weak, and unpersuasive to anyone not already persuaded before the debate began. Given that Democrats are in the minority, that would seem to make it an ineffective argument. But I guess you're free to offer up the arguments you think best.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Bensman, Lina [lbensman at cgsh.com]
Sent: Saturday, March 25, 2017 10:36 AM
To: Smith, Brad; Gabriel Gopen; Terry Martin
Cc: Election Law Listserv
Subject: RE: [EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

As a reminder, here was the context just before Obama attempted to exercise his Constitutional power:

Prior to [Orrin] Hatch’s address to a packed luncheon in Washington DC hosted by the Federalist Society, we asked him if he felt the White House would select a nominee who is black or Hispanic to cause election-year difficulty for Republicans who oppose any Obama nomination on the grounds that the next President should fill the court vacancy.

"He could be headed in that direction," replied Hatch who has served as either chairman or ranking Republican on the Senate Judiciary Committee from 1993-2005, "This [nomination process] is all about the election."

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him," Hatch told us.

"[Obama] could easily name Merrick Garland, who is a fine man," he told us, referring to the more centrist chief judge of the U.S. Court of Appeals of the District of Columbia who was considered and passed over for the two previous high court vacancies.

But, Hatch quickly added, "He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants."

http://www.newsmax.com/Newsfront/john-gizzi-orrin-hatch-obama-will-nominate/2016/03/13/id/718871/

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Lina Bensman

Cleary Gottlieb Steen & Hamilton LLP

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-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Saturday, March 25, 2017 10:10 AM
To: Gabriel Gopen <gabe.gopen at gmail.com>; Terry Martin <tjm5da at virginia.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

I think the Senate's advice was: don't bother nominating anybody, we won't consent in an election year; and its consent was, in accordance with that advice, withheld.

I'm don't know how you conclude from that that it did not advise, or that the senate was "refused to allow to consent."

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

https://urldefense.proofpoint.com/v2/url?u=http-3A__law.capital.edu_faculty_bios_bsmith.aspx&d=DwICAg&c=6ldJ3EG4a4nVimLYnfpfYA&r=irZoJQRAEpWgqIfKu3nhoeuqWPVCzGADCeta_jGFeYk&m=61_1nv8WaVpS9SVMPkbwXCQ7OGSc3_3eCaZOOckVLQw&s=hyBt_vbIwL5CHgtaY_lsLA68p7UbbPcvaO-5nXI7TqU&e<https://linkprotect.cudasvc.com/url?a=https://urldefense.proofpoint.com/v2/url%3fu%3dhttp-3A__law.capital.edu_faculty_bios_bsmith.aspx%26d%3dDwICAg%26c%3d6ldJ3EG4a4nVimLYnfpfYA%26r%3dirZoJQRAEpWgqIfKu3nhoeuqWPVCzGADCeta_jGFeYk%26m%3d61_1nv8WaVpS9SVMPkbwXCQ7OGSc3_3eCaZOOckVLQw%26s%3dhyBt_vbIwL5CHgtaY_lsLA68p7UbbPcvaO-5nXI7TqU%26e&c=E,1,IAkOQ7r40Um1P1q6J_9w99sh4G2C8sysNI2pEcAb5s58qhH1wIgCcHx8iZ2fPO0Uak2D-m4mB9BDii_Kf3SdJFKh4LgI-sFMT13O8ZykOORBxuta-w,,&typo=1>=

________________________________________

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu] on behalf of Gabriel Gopen [gabe.gopen at gmail.com]

Sent: Saturday, March 25, 2017 8:32 AM

To: Terry Martin

Cc: Election Law Listserv

Subject: Re: [EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

Mitch McConnell declared that he wouldn't consider the president's nominee before Garland was nominated.  He refused to allow the Senate advise or consent.

To me, this is the alpha and the omega of the thing.  No one knew who would be nominated.  But everyone knew he or she wouldn't be considered.

McConnell announced his decision so soon after Scalia's death that it reminded me of Hamlet complaining how soon his mother married his uncle after his father's death.

Thrift, thrift, Horatio! The funeral baked meats Did coldly furnish forth the marriage tables.

Act 1 scene 2

Gabe Gopen

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