The government Gorsuch wants to undo

Emily Bazelon and Eric Posner write: At recent Senate hearings to fill the Supreme Court’s open seat, Judge Neil Gorsuch came across as a thoroughly bland and nonthreatening nominee. The idea was to give as little ammunition as possible to opponents when his nomination comes up this week for a vote, one that Senate Democrats may try to upend with a filibuster.

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.” The Republican-dominated House, too, has passed a bill designed to severely curtail the power of federal agencies.

Businesses have always complained that government regulations increase their costs, and no doubt some regulations are ill-conceived. But a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that’s not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state “poses a grave threat to our values of personal liberty.”

The 80 years of law that are at stake began with the New Deal. President Franklin D. Roosevelt believed that the Great Depression was caused in part by ruinous competition among companies. In 1933, Congress passed the National Industrial Recovery Act, which allowed the president to approve “fair competition” standards for different trades and industries. The next year, Roosevelt approved a code for the poultry industry, which, among other things, set a minimum wage and maximum hours for workers, and hygiene requirements for slaughterhouses. Such basic workplace protections and constraints on the free market are now taken for granted. [Continue reading…]

Facebooktwittermail

Neil Gorsuch praised a leading Republican activist behind voter suppression efforts

The Nation reports:  Few people in the Republican Party have done more to limit voting rights than Hans von Spakovsky. He’s been instrumental in spreading the myth of widespread voter fraud and backing new restrictions to make it harder to vote.

But it appears that von Spakovsky had an admirer in Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, according to e-mails released to the Senate Judiciary Committee covering Gorsuch’s time working in the George W. Bush Administration.

When President Bush nominated von Spakovksy to the Federal Election Commission in late 2005, Gorsuch wrote, “Good for Hans!” [Continue reading…]

Facebooktwittermail

Neil Gorsuch helped defend disputed Bush-era terror policies

The New York Times reports: In December 2005, Congress handed President George W. Bush a significant defeat by tightening legal restrictions against torture in a law called the Detainee Treatment Act. Soon afterward, Neil M. Gorsuch — then a top Justice Department official — sent an email to a White House colleague in case he needed “cheering up” about the administration’s setback.

The email from Judge Gorsuch, nominated by President Trump to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, linked to articles about a less-noticed provision in the act that undercut the rights of Guantánamo Bay detainees by barring courts from hearing their habeas corpus lawsuits.

“The administration’s victory is not well known but its significance shouldn’t be understated,” wrote Judge Gorsuch, who had helped coordinate the Justice Department’s work with Congress on the bill.

The email about the court-stripping provision — which the Supreme Court later rejected — is among more than 150,000 pages of Bush-era Justice Department and White House documents involving Judge Gorsuch disclosed by the Trump administration ahead of his Senate confirmation hearings next week.

Judge Gorsuch’s time in the executive branch was brief. He joined the Justice Department in June 2005 as the principal deputy associate attorney general, meaning he was the top aide to the No. 3 official in the department. He left in August 2006, when Mr. Bush appointed him as a federal appeals court judge in Denver.

But those 14 months were tumultuous ones for the Bush administration amid controversies over detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power. Judge Gorsuch’s job put him at the center of both litigation and negotiations with Congress over legislation about such topics.

References to those efforts may offer clues to Judge Gorsuch’s approach to the sort of national-security and executive power issues that rarely come before his appeals court but can be crucial at the Supreme Court.

In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review.

“I was extraordinarily impressed,” Judge Gorsuch wrote. “You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.” [Continue reading…]

Facebooktwittermail

Neil Gorsuch has web of ties to secretive billionaire, Philip Anschutz

The New York Times reports: The publicity-shy billionaire Philip F. Anschutz inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications like The Weekly Standard and The Washington Examiner.

Mr. Anschutz’s influence is especially felt in his home state of Colorado, where years ago Judge Neil M. Gorsuch, a Denver native, the son of a well-known Colorado Republican and now President Trump’s nominee for the Supreme Court, was drawn into his orbit.

As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.

“They say a country’s prosperity depends on three things: sound money, private property and the rule of law,” Judge Gorsuch said at the 2010 retreat, according to his speaker notes from that year. “This crowd hardly needs to hear from me about the first two of the problems we face on those scores.”

With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention.

The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. But it is not clear how well the two know each other, in part because the mogul and those around him keep a low profile. [Continue reading…]

Facebooktwittermail

Gorsuch unwilling to show he has enough backbone to publicly criticize Trump

The Hill reports: Sen. Richard Blumenthal (D-Conn.) on Thursday warned that the country is heading toward a “constitutional crisis,” moments after President Trump attacked him for sharing Supreme Court nominee Neil Gorsuch’s concerns with the president’s attacks on judges.

“I said to Judge Gorsuch and I believe that ordinarily a Supreme Court nominee would not be expected to comment on issues or political matters or cases that come before court, but we’re in a very unusual situation,” Blumenthal said on CNN’s “New Day.”

“We’re careening, literally, toward a constitutional crisis. And he’s been nominated by a president who has repeatedly and relentlessly attacked the American judiciary on three separate occasions, their credibility and trust is in question.”

Blumenthal said the president has also established a litmus test for his nominee to be “pro-life, to be pro-Second Amendment, to be conservative.”

Blumenthal told reporters Wednesday that Gorsuch called Trump’s tweets attacking federal judges “disheartening” and “demoralizing.”

A spokesman for Gorsuch later confirmed to CNN that the judge used the terms when describing Trump’s tweets during his meeting with Blumenthal.

Despite the confirmation by Gorsuch’s spokesman, Trump tweeted Thursday morning that those weren’t the judge’s true feelings.

“Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?” the president tweeted.

Blumenthal on Thursday urged Gorsuch to make his concerns public.

“Behind closed doors, Judge Gorsuch expressed disappointment with President Trump’s attacks on the judiciary, but a Supreme Court Justice must prove that he has the courage and independence to stand up to a President in public,” Blumenthal said.

“I asked Judge Gorsuch to make that statement publicly, and he declined.” [Continue reading…]

When Trump announced his nomination of Gorsuch to the Supreme Court, he made a public display of his ability to push the judge around.

 

Gorsuch is now showing both a lack of courage and lack of integrity. He is the only person who can confirm, without the possibility of contradiction, his own words and by so doing also that Trump is now, completely without justification, maligning Blumenthal.

Instead, Gorsuch is presenting himself as so desirous of a seat on the Supreme Court and so fearful of the man who offered him the job, that he dare not cross swords with Trump. And yet if he plucked up enough courage to merely confirm what he already said, what’s Trump going to do? Withdraw the nomination? I doubt it. More likely, he’ll brush it off and declare (while gritting his teeth) that it just goes to show how wonderfully independently minded is his pick.

The truth is, when Gorsuch described Trump’s attacks on judges as “disheartening” and “demoralizing,” these were not fighting words, but on the contrary, a rather mealy-mouthed challenge to a president who has very little respect for the U.S. Constitution.

Facebooktwittermail

Why liberals should back Neil Gorsuch

Neal K. Katyal writes: I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court.

The nomination comes at a fraught moment. The new administration’s executive actions on immigration have led to chaos everywhere from the nation’s airports to the Department of Justice. They have raised justified concern about whether the new administration will follow the law. More than ever, public confidence in our system of government depends on the impartiality and independence of the courts.

There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland — perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.

I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.

Considerable doubts about the direction of the Supreme Court have emerged among Democrats in recent weeks, particularly given some of the names that have been floated by the administration for possible nomination. With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws. [Continue reading…]

Of this much we can be close to certain: Donald Trump did not give deep thought to his choice.

How can we be so sure?

There is an overwhelming body of evidence that Trump is incapable of deep thought. If evidence to the contrary exists, I have yet to see it.

Trump’s decision was most likely strongly influenced by pieces of information such as this: that when possible new members of the court were ranked in terms of which was most like Justice Scalia, Gorsuch ranked highest. For Trump, the idea that he could replace Scalia with a close match would seem to make the selection process a no-brainer.

Where least thought is required, there Trump reliably goes.

If Katyal is correct in his assessment of Gorsuch’s commitment to judicial independence, this is indeed the most important factor at play at a time when the rule of law is in question.

Facebooktwittermail

Young scholar, now lawyer, says Justice Clarence Thomas groped her in 1999

The National Law Journal/Law.com reports: The anticipation of meeting a U.S. Supreme Court justice for the first time turned to shock and distress for a young Truman Foundation scholar in 1999 when, she says, Justice Clarence Thomas grabbed and squeezed her on the buttocks several times at a dinner party.

On Oct. 7, a night dominated by the disclosure of Donald Trump’s audio-recorded boasts about grabbing women, Moira Smith posted on Facebook a memory of her encounter with Thomas. “He groped me while I was setting the table, suggesting I should sit ‘right next to him,’ ” Smith wrote. Smith, now vice president and general counsel to Enstar Natural Gas Co., in Alaska, was 23 at the time of the dinner party at the Falls Church, Virginia, home of her boss.

Smith’s claim came amid the outrage and ongoing national conversation about inappropriate sexual treatment of women by powerful men, male acquaintances and strangers. The disclosure of the Trump tape has spurred women in startling numbers to come forward publicly with old memories of unwanted touches.

Smith spoke with The National Law Journal/Law.com multiple times by email and phone after she revealed her allegation on Facebook. Her three former housemates during the spring and summer of 1999 each said in interviews they remembered Smith describing inappropriate contact by Thomas after she came home that night from the dinner or early the next morning. They also remembered their own shock and inability to advise her about how to respond. Another Truman scholar that summer, whom Smith would later marry and divorce, said in an interview he “definitely remembered” her sharing with him what had happened soon after the dinner party. [Continue reading…]

Facebooktwittermail

Case accusing Bush officials of 9/11 abuses heads to Supreme Court

The New York Times reports: The Supreme Court agreed on Tuesday to decide whether high-ranking George W. Bush administration officials — including John Ashcroft, the former attorney general, and Robert S. Mueller III, the former F.B.I. director — may be held liable for policies adopted after the Sept. 11 attacks.

The case began as a class action in 2002 filed by immigrants, most of them Muslim, over policies and practices that swept hundreds of people into the Metropolitan Detention Center in Brooklyn on immigration violations in the weeks after the attacks. The plaintiffs said they had been subjected to beatings, humiliating searches and other abuses.

The roundups drew criticism from the inspector general of the Justice Department, who in 2003 issued reports saying that the government had made little or no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations.

A divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, let the case proceed last year.

“The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” Judges Rosemary S. Pooler and Richard C. Wesley wrote in a joint opinion. [Continue reading…]

Facebooktwittermail

If Merrick Garland serves on the Supreme Court it could be good for the environment

coal-power

Mother Jones reports: Merrick Garland has spent the last decade in the weeds of some of the most contentious clean air cases in history — and he’s consistently come out on the side of the environment and against big polluters.

Garland, the DC Circuit Court chief judge who is President Barack Obama’s pick to replace Antonin Scalia on the Supreme Court, faces a steep climb to confirmation in the face of fierce opposition from Senate Republicans.

But if Garland makes it to the Supreme Court, the battle over Obama’s flagship climate regulations will likely be one of his first big cases. That policy, known as the Clean Power Plan, aims to slash the nation’s carbon footprint by restricting greenhouse gas emissions from power plants. The Environmental Protection Agency built the plan on a provision of the Clean Air Act that allows it to set emissions standards for existing “stationary” sources (i.e., power plants, rather than, say, cars) and then leave it up to each state to choose how to reach that standard. The rule was immediately challenged by two dozen coal-reliant states, which have argued that it oversteps EPA’s legal authority because it applies to the whole electricity system rather than to individual power plants. Shortly before Scalia’s death, the Supreme Court voted 5-4 to put the plan on hold while Garland’s current colleagues in the DC circuit court weigh its legality.

The climate regulations will likely wind up in front of SCOTUS sometime next year. So, Garland’s record on cases involving the Clean Air Act—which many legal experts see as the world’s single most powerful piece of environmental law—is a helpful guide for how he might rule. Garland once described the Clean Air Act as “this nation’s primary means of protecting the safety of the air breathed by hundreds of millions of people.” [Continue reading…]

Facebooktwittermail

On the nomination of Judge Merrick Garland to the Supreme Court

Lawrence Goldstone writes: With his nomination of Judge Merrick Garland to fill Supreme Court Justice Antonin Scalia’s seat, President Barack Obama has made clear the tone he wishes to strike with the nation. He faced a difficult choice: whether to nominate an eminently qualified liberal or an eminently qualified moderate. In opting for the latter, Obama has eschewed the standard Republican strategy of aiming every policy decision at the party’s most extreme faction, and instead sought to nominate a justice whom large swathes of both parties will see as appropriate to the high bench.

Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is man whose academic, personal, and judicial credentials are such that Senator Orrin Hatch said just last week that the president “could easily name Merrick Garland, who is a fine man” to fill the seat, but “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.” In what is certain to cause Hatch to shift uncomfortably in his Judiciary Committee seat, Obama did precisely what the senator suggested and nominated an appellate court judge who has been lauded for a measured, non-ideological approach to the law.

Far more interesting, however, than Obama’s opening move is how Republicans will respond. Even before Scalia was buried, Republican Senate leaders announced that they would refuse to consider an Obama nominee. In choosing to strike preemptively, they locked themselves into a strategy that is somewhere between questionable and idiotic, and just may be the coup de grace to their political party, which now seems likely to be led by Donald Trump. [Continue reading…]

Garrett Epps writes: There are two possible interpretations of the president’s Garland strategy. The first is that Obama is playing on Republican fears of whomever a President Hillary Clinton might tap for the role and is trying to lure the Republicans into confirming an older, more moderate nominee. If they are successfully lured, then mission accomplished. If, however, Obama does not lure Republicans into confirming Garland, he will have at least embarrassed them and exposed the nakedly political nature of their tantrum.

The second interpretation — which I incline to — is that the meritocratic Boy Scout in Obama has called this shot. Garland is a terrific nominee and would make a wonderful justice. As Norman Ornstein of the American Enterprise Institute said Wednesday morning, Obama almost certainly made the pick “because he thought this was the best possible choice for the Supreme Court.” Obama might be unwilling to pass up a chance to make such an appointment, and to the extent there is political calculation behind it, the president is banking on the residual idealism of some Republican senators to respond. He may believe there is at least some chance Garland will be confirmed. If so, his belief in that reservoir of public spirit is a testament both to his own generosity and to his persisting naïveté.

Of course, the idea that Garland, at 63, is an older nominee who would serve a shorter time on the Court and pose less danger to the conservative legal agenda assumes facts not in evidence. Almost exactly a century ago, another Democrat named a Jewish nominee in an election year. The nomination was deeply controversial, and the Senate delayed hearings and a vote for four months — still a record for delay. The nominee was Louis D. Brandeis. He was 59 years old. Nearly a quarter-century later, at 82, he retired as perhaps the most influential liberal justice in American history. [Continue reading…]

Jay Michaelson writes: I was one of Judge Garland’s law clerks in his second year on the D.C. Circuit bench, back in 1998. Perhaps it sounds self-serving to say so, but Judge Garland is one of the hardest working, fairest-minded people I’ve ever met. He worked harder than any of us, staying late into the night, sometimes cutting out of the office to make time for his kids before coming back in for the midnight shift. Watching him stand alongside President Obama this morning filled me with respect and pride — in the moments when I could forget the disrespect he is soon to endure.

I also had some firsthand exposure to how he thinks. There was not a single case I worked on with him, from the most mundane Federal Energy Regulation Commission matter to a 20-plus-year-old civil rights case, in which politics played into his considerations. Conscience, sure — Judge Garland often reminded me that there were human beings on both sides of these contentious cases — but never ideology.

Not all judges on the D.C. Circuit were of that persuasion. I was friends with clerks for other judges, and some (whom, of course, I won’t name) would simply tell their clerks how they wanted the case to come out, leaving the clerks to get from point A to point B. That was never my experience with Judge Garland. [Continue reading…]

Facebooktwittermail

President Obama introduces Merrick Garland as his Supreme Court nominee

Facebooktwittermail

How Scalia’s death might help our planet

Eric Holthaus writes: Supreme Court Justice Antonin Scalia’s death at a remote Texas ranch has triggered a political earthquake and instantly changes the outlook for a host of high-profile issues the court is currently considering. But perhaps none of these are as consequential as the fate of the planet itself. As Climate Central’s John Upton wrote, “in dying, Scalia may have done more to support global climate action than most people will do in their lifetimes.”

Scalia’s death comes just days after the Supreme Court issued an unprecedented stay that temporarily blocked the implementation of the Clean Power Plan, Obama’s centerpiece climate legislation. The Clean Power Plan isn’t perfect, but it was on pace to double the already accelerating rate of coal-fired power plant retirements by 2040. Last week’s surprising action by the Supreme Court — dubbed a “nightmare scenario” by the Hill — raised substantial fears among environmentalists that the court’s conservatives might eventually block the Clean Power Plan completely. At the very least, the stay buys some time for Republican hopefuls in this year’s presidential election; if one were to win, he could just cancel the executive order that launched the plan in the first place.

The stay is still in place, but the climate law experts I talked to say Scalia’s death greatly boosts the eventual survival chances of the Clean Power Plan. A 4-4 court would guarantee that the lower court ruling would stand—and the D.C. Circuit Court is expected to approve the plan. [Continue reading…]

Facebooktwittermail

The Supreme Court halted Obama’s climate change plan. This doesn’t bode well

coal-power

Scott Lemieux writes: Hours before New Hampshire’s primary voters made Donald Trump the favorite for the Republican presidential nomination Tuesday night – I can’t really believe this even as I type it – the US supreme court reminded us of why the upcoming presidential election is so important. On a party-line vote, the court temporarily stopped Barack Obama’s clean power plan from going into effect. This decision could well portend a future one that will have devastating consequences – not only for the climate but for the state of our lawmaking process.

The decision also underscores the urgency of the November elections in two ways: it will be a choice between a candidate who supports taking action against climate change and one who believes it should be ignored, and it will present a choice between a president who believes that the federal government has the authority to effectively regulate and one who believes that the supreme court should arbitrarily throw monkey wrenches into the political process. [Continue reading…]

Facebooktwittermail

Supreme Court: If it’s worth it for corporations, pollution may be okay

Jay Michaelson writes: While LGBTs and healthcare reformers are still nursing their celebratory hangovers, the final Supreme Court case of the 2014-15 term just junked twenty years of environmental regulations.

The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .

Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate. [Continue reading…]

Facebooktwittermail

Rainbow White House

Quartz: The White House was quick to celebrate today’s historic decision by the US Supreme Court that legalized gay marriage in all 50 states of the nation.

Soon after the Supreme Court announced its decision, the White House Facebook page changed its profile photo to a picture of the iconic building’s walls in the colors of the rainbow, the universal symbol of the gay rights movement.

At 11am, the President addressed a crowd in the Rose Garden behind the White House—whose walls, alas, remain white despite the Facebook change—heralding the Supreme Court’s decision as “justice that arrives like a thunderbolt.”

“This ruling is a victory for America,” Obama said. “This decision affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal, we are all more free.”

Facebooktwittermail

U.S. Supreme Court strikes down ‘born in Israel’ passport law

The Washington Post: The Supreme Court ruled Monday that the president alone has the power to recognize foreign nations, and it struck down as unconstitutional a congressional attempt to allow Americans born in Jerusalem to list Israel as their birthplace on passports.

President Obama and President George W. Bush had said the 2002 passport law embraces the interpretation that Jerusalem belongs to Israel, something the executive branch has long held should be settled by the parties in the Mideast. They refused to let the State Department honor such requests.

Justice Anthony M. Kennedy said Congress has a role in managing the nation’s foreign affairs but not in recognizing foreign nations and governments.

Facebooktwittermail