Reflections on Justice Scalia on the Two-Year Anniversary of His Death

Today marks two years since Justice Antonin Scalia unexpectedly passed from this Earth.  His impact on the legal world was immense, as he was instrumental in returning to a focus on a law's text.

Much could be and has been said about his jurisprudence, his writing style, his strong but friendly personality, the effort led by Senate leadership to allow the people to speak on his successor by keeping his seat open through the election, and how well Justice Gorsuch is living up to President Trump's promise to appoint a successor in the mold of Justice Scalia.  But today, we pause to remember the great man with a few reflections from those who knew him.

In The National Law Journal:

Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”

Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”  

And on Twitter:

Today is the second anniversary of Justice Antonin Scalia's death. May he rest in peace, may his wife and family continue to be comforted, and may his remarkable legacy continue to grow.

— Ed Whelan (@EdWhelanEPPC) February 13, 2018

Ed Whelan co-edited Scalia Speaks with Justice Scalia's son, Christopher.  It is a fascinating collection of the Justice's speeches, which he delivered to a wide range of audiences on a wide range of topics, and which give insight into the intellectual and philosophical force that was Justice Scalia.  The RNLA has autographed copies of Scalia Speaks available for members to purchase on the Members Only section of the www.rnla.org website, and members can listen to a members-only conference call with Ed Whelan as well.

Rest in peace, Justice Scalia.

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .

Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.

But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.

The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.

Four of President Trump's Huge Successes in His First 100 Days

Tomorrow, Saturday, April 29, 2017, will mark 100 days since President Donald J. Trump was sworn into office. Despite what "Mainstream Media" might say, President Trump has actually racked up a number of successes in just one hundred days--just over three months, including:

Nominating & Confirming Justice Neil M. Gorsuch:

Carrie Severino in National Review earlier this week proclaimed the Gorsuch Confirmation was President Trump's greatest accomplishment:

Assessments of a president’s first hundred days are largely a meaningless metric invented by story-hungry media.  But in this case, President Trump has been able to rack up such a significant accomplishment in this short time that we can already be confident it will be remembered as one of the landmark accomplishments of his entire presidency: he appointed a superbly qualified, highly principled jurist to the Supreme Court.  To pull off a wildly successful Supreme Court confirmation in the face of unprecedented partisan opposition is hard enough.  To do it starting only ten days after taking office is exceptional.  But this confirmation was important for an additional reason as well: putting Neil Gorsuch on the Supreme Court fulfilled one of Trump’s most important campaign promises.  Big-league.

Nominating & Confirming his Cabinet Despite Democrats Obstructionism:

The Atlantic, just yesterday, noted:

President Trump’s Cabinet is finally full. The Senate on Thursday evening confirmed Alexander Acosta to be labor secretary on a broadly bipartisan vote, installing the president’s last Cabinet secretary just shy of his 100th day in office. The vote was 60-38, as most Democrats opposed Acosta’s nomination to no avail. Acosta, a former federal prosecutor who led the Justice Department’s civil-rights division in the George W. Bush administration, was Trump’s second choice for labor secretary. His original pick was Andrew Puzder, the restaurant executive who withdrew his nomination in February after Republicans raised concerns over allegations that he abused his ex-wife and the risqué commercials he approved as CEO of the parent company of Hardee’s and Carl’s Jr... In the end, Puzder was the only senior Cabinet pick who Trump could not get the Republican-controlled Senate to confirm….Democrats succeeded in dragging out the confirmation process for many of Trump’s initial choices for weeks, but because of a rules change they engineered in 2013 to eliminate the filibuster for most presidential nominations, they did not have the votes to block any of the president’s picks on their own.

Greater Border Security: Illegal Crossing Down to 17 Year Lows:

Politico Magazine opinion reported on April 19:

In the first few months of this year, illegal border crossings have dropped precipitously, according to federal statistics and anecdotal evidence. It is an early proof of concept that, yes, it is possible to secure the border and a victory, even if a provisional and incomplete one, for President Trump's enforcement agenda….[The] core of his message was a commitment to crack down on illegal border crossings…This is happening. It has been reported in the media, but it almost never makes it into the conversation about Trump's first 100 days in office, despite the fact that it is one of his central agenda items.If Trump had promised to almost immediately reduce illegal border crossings from Mexico to a 17-year low, it would have been dismissed as characteristic Trump bombast. But here we are. On the border, there is cause to be, if not tired of, at least encouraged by all the winning.

Executive Orders: Targeting Regulations:

The Hill reported back in late-February on President Trump's efforts to reduce Obama Era Regulations:

“Every regulation should have to pass a simple test: Does it make life better or safer for American workers or consumers?” Trump said as he signed the executive order. “If the answer is no, we will be getting rid of it and getting rid of it quickly.”. . .Trump’s agency heads will appoint regulatory reform officers to ensure the agencies are following the president’s orders, including his 1-in-2-out executive order that encourages agencies to repeal old rules before the publish new ones… “Each task force will make recommendations to repeal or simplify existing regulations,” Trump said.Trump said the order will solve an “impossible situation” for businesses when it comes to complying with regulations.

We look forward to seeing the list of accomplishments in the next hundred days and beyond. But so far, President Trump is making good progress in just one hundred days.

Justice Gorsuch Asks at First Oral Argument, Why Not Follow "Plain Text of the Statute"?

Yesterday, Neil Gorsuch participated in his first oral argument as a Supreme Court justice.  He was an active questioner, emphasizing the text of the laws at issue:

Gorsuch, who was confirmed earlier this month after President Trump nominated him to the court, entered the courtroom grinning as he stepped up to his chair . . . . He wasted little time before jumping in with questions in the first case Monday, which centered on a technical question over which court has jurisdiction to hear appeals of discrimination claims filed by federal employees. . . . 

Gorsuch focused his first line of questioning on the wording of the statute, asking the employee’s attorney, Christopher Landau, several questions about where in the law it says district courts have jurisdiction to hear civil service claims. 

“Wouldn't it be a lot easier if we just followed the plain text of the statute?” asked Gorsuch . . . . He then apologized to the lawyers and his fellow justices for taking up so much time, a theme he’d return to repeatedly.  

Consistent with the down-to-earth, approachable demeanor America witnessed throughout his confirmation hearings, he was already friendly with his bench-mate, Justice Sonia Sotomayor:

Gorsuch appeared chummy with Sotomayor throughout the day's arguments, sharing a laugh at the start and end of the first case. 

In the second case, which centered on whether someone intervening in a lawsuit must have standing, the two exchanged several glances and grins.

Compare this picture of how the Supreme Court actually functions, the types of cases that form the majority of its docket, and the collegiality of Justice Gorsuch to the Democrats' outrageous accusations for the past few months.  And remember this should another Supreme Court vacancy occur during Donald Trump's presidency - the reality is nothing like the extreme rhetoric from the Democrats.

Congratulations to Justice Gorsuch!

Earlier today, Judge Neil Gorsuch was sworn in and became Justice Gorsuch, taking Justice Scalia's seat on the Supreme Court.  RNLA leaders expressed their congratulations to Justice Gorsuch:

RNLA Chair Kimberly Reed said: “Judge Gorsuch has demonstrated his immense intellectual abilities, clear legal writing skills, and fidelity to the Constitution throughout his ten-year career on the bench; and he will continue to serve the American people and uphold the rule of law as a United States Supreme Court Justice. His remarkable ability to build consensus with his colleagues in reaching decisions on difficult legal questions will be an asset as the highest court grapples with challenging legal cases.”

RNLA Co-Chair John Ryder agreed: “Judge Gorsuch is a worthy successor to Justice Scalia. I am delighted that President Trump has delivered on his promise to the American people to nominate someone who fits the mold of Justice Scalia. I am equally pleased that the Senate saw fit to honor the will of the people by confirming Judge Gorsuch.”

RNLA President Elliot Berke stated: “Throughout his long career, Judge Gorsuch has reached decisions by taking the words of the Constitution, statutes, regulations, or precedents seriously and then fairly applying the governing law to the facts of the case before him. This judicial method best protects the rights of every American, and Justice Gorsuch will serve in the tradition of Justice Scalia, protecting the rights of the people by deferring to the will of people expressed through their elected representatives. America will be a better place because of his service on the Supreme Court.” 

RNLA Executive Director Michael Thielen recognized the leadership of Senate Republicans throughout the confirmation process: “Thanks to the leadership of Leader McConnell, Senator Grassley, and the other Republican senators, the Democrats’ efforts to obstruct President Trump’s well-qualified nominee, and use him as a foil to attack President Trump and undermine the results of last November’s election, failed.” 

RNLA would also like to thank all our members and leaders who worked tirelessly in support of Justice Gorsuch's confirmation to the Supreme Court.

After pausing today to celebrate the confirmation and swearing in ceremonies of Justice Gorsuch, The Rep Lawyer will be returning to its regular programming of mostly election-related content for the remainder of this week.  In that spirit, check out our updated vote fraud news page here.

Today, McConnell Ended What Schumer Began with Estrada Filibuster

There was much hand wringing over Senator McConnell being forced to invoke the constitutional option today to end the first successful partisan filibuster of a Supreme Court nominee, but partisan filibusters of judicial nominees are not a longstanding Senate tradition.  It began with now-Minority Leader Chuck Schumer's filibuster of Miguel Estrada (who was opposed in large part because he was a conservative Latino):

In a world of instant gratification that too often rewards boastful rhetoric over definitive accomplishments, Mitch McConnell stands out for his patience. The Senate majority leader expends political capital with ruthless efficiency, using it only when it can accomplish precisely what he intends. McConnell doesn’t start many fights; he finishes them. 

As the Senate moves toward confirmation of Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, that is exactly what is happening: McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes. . . .  

Predictably, the misuse of the filibuster led to an existential threat to the filibuster itself. To confirm President Bush’s embattled judicial nominees, then-Majority Leader Bill Frist threatened the “nuclear option,” that is, changing Senate rules to ban the use of the filibuster in certain instances. A bipartisan group of senators known as the “gang of 14” de-escalated the situation by voting to confirm most of the filibustered nominees, staving off such a fundamental change to Senate procedure. . . .

In the most ironic plot twist, the man who started it all returns to the stage in the final scene. . . . Nearly 15 years after Schumer started this fight, he will have a front-row seat when McConnell finishes it. A uniquely perfect way for this story to end. Regrettable, perhaps; inevitable, to be sure.

It is important to remember that what happened today on the Senate floor did not abolish the legislative filibuster.  While also not enshrined in the Constitution, the legislative filibuster has a much longer tradition and has always been treated differently by senators.  

So did Leader McConnell "blow up the Senate" today?  No.  He simply completed a process started by then-Majority Leader Harry Reid in 2013 to restore the Senate to standard operating procedure prior to 2002.

Ripped from the Headlines: RNLA Leaders Express Support for Neil Gorsuch

RNLA leaders have been actively promoting the swift confirmation of Judge Neil Gorsuch from an array of compelling perspectives.

(1) Elliot Berke, RNLA President, wrote “The Democrats Will Try To Filibuster Gorsuch - But Anything They 'Gain' Will Be Short-Lived” for the Independent Journal Review. Mr. Berke's article looks at why the Democrats have adopted an obstructionist path during the Gorsuch nomination and is doubtful of any likely gains.

To their credit, however, Democrats have tried—though ineffectively—to make their opposition about substantive issues they have with Gorsuch. The confirmation hearing was a fascinating look at how many times the same questions could be asked in different ways to try to get Gorsuch to give away all his political preferences, pre-judge cases that may come before him, and prove a conservative bias. . . It’s hard not to be impressed by Judge Gorsuch. Democrats who questioned him didn’t even seem that frustrated or angered by his pleasing personality and impressive ability for recall about cases he worked on and statutes he interpreted. It’s just that Democrats, as far back as January before President Trump even announced his pick, had decided they would filibuster anyone the new president held up for consideration.

Democratic Sen. Chuck Schumer (NY) insists the filibuster to come is not payback or vengeance but merely an aversion to a judge that he does not consider “mainstream.” It’s important to make the push back about Gorsuch and his radical conservatism (an oxymoron if there ever was one) and not about a petty payback. Schumer and the Democrats may have some help in the form of progressive groups pledging to pull support for any Democrat who doesn’t fall in line and oppose Gorsuch. . .  Whatever the case, the gains for the Democrats will be pyrrhic and short-lived. The lesson of 2016 that Democrats seem to be ignoring is that voters have stopped buying the obstructionist Democratic talking points and are tired of mindless obstruction and partisan bickering in Washington.

(2) John Ryder, RNLA Co-Chair, penned “Democrats’ blinkered look at Gorsuch” for The Washington Times. Mr. Ryder’s focus was a commentary on Gorsuch’s hearing, Day 2, specifically an exchange between Judge Gorsuch and Senator Feinstein that showed that Democrats were strictly focused on talking points rather than the whole picture that makes up the nominee.

Judge Gorsuch thanked Mrs. Feinstein for the opportunity to correct the presentation of his judicial record, noting that he had participated in more than 2,700 opinions in over 10 years on the federal bench and Democratic senators had selected just a few to focus on that do “not represent the body of my work”. . . [Judge Gorsuch] reiterated his commitment to the rule of law, and to not judging cases according to the identities of the parties involved but according to the law: “And the bottom line, I think, is that I would like to convey to you, from the bottom of my heart, is that I’m a fair judge. And I think if you ask people in the 10th Circuit, is he a fair judge, you’ll get the answer you got yesterday from both Sen. Bennet and Sen. Gardner … I can’t guarantee you more than that, but I can promise you absolutely nothing less.”

That is the true Judge Gorsuch, the one that Democrats would see if they bothered to review his record. But as Mrs. Feinstein so tellingly revealed earlier today, the Democrats are not willing to do even basic due diligence to understand his record and judicial philosophy. They would rather repeat exhausted talking points from liberal activists, attack one of the foundational protections for liberty in the American system of government — the rule of law, not of judges — and grandstand to gain political points with radical progressives.

(3) Mark Baker, RNLA Montana Chair, submitted “Gorsuch deserves senators' support for Supreme Court seat” for the Helena Independent Record. Mr. Baker’s piece focuses on why Judge Gorsuch understands Westerners and will be a great addition to the Bench.

The simple fact is Judge Gorsuch understands Montanans—he is, after all, a fellow Westerner. If confirmed, he will be the only Westerner currently on the Supreme Court and the first in a generation. As a Westerner, he understands the challenges faced by Montanans and has a long record of protecting our freedoms and rights. His decisions on the bench reflect a deep respect of the law as it relates to many of the issues unique to our part of the country, like the 2nd Amendment, private property rights, water rights, and Indian sovereignty. 

Judge Gorsuch believes in interpreting the Constitution and the law according to its text, structure, and history. This approach protects the rights of individuals and preserves freedom in our system of federalism with the separated powers of government . . . With a sterling and impressive record and a strong base of bipartisan support, Judge Gorsuch clearly understands us Westerners and our Constitution, and he has a firm commitment to protecting our freedoms.” 

Related to this point, Judge Gorsuch has earned the endorsement of major American Indian organizations, specifically National Congress of American Indians and the Native American Rights Fund. Their statement of support can be read here.

(4) Michael Thielen, RNLA Executive Director, authored “Democrats Should Hold To Their Own Standards” for The Daily Caller. Mr. Thielen’s piece focuses on the several standards the Democrats have applied to various Supreme Court nominees over the years. A summary of his article can be read here.

(5) David Warrington, RNLA Vice President for Election Education, wrote “Do Democrats oppose Gorsuch because they hate free speech? (Yes.)” for The Hill on behalf of a fellow pro-Gorsuch group. His focus was praising Gorsuch's respect for the proper rule as a judge, not a politician, during his confirmation hearing. 

Judge Gorsuch’s answers to the committee’s questions demonstrated a deep understanding of the law and respect for the Constitution and the role of judges. The same cannot be said for many of the senators who questioned him. This fundamental lack of understanding and respect for the Constitution by some of members of the Judiciary Committee was on full display as Sen. Sheldon Whitehouse (D-Rhode Island) relentlessly pressed Judge Gorsuch on the issues of political speech and campaign finance disclosure. . . .

Judge Gorsuch did not base his answers on his personal values. Instead, he stuck to the Constitution and precedent. Exactly what a judge should do when performing his duties as a judge . . . It was clear from the confirmation hearings and his record, that Gorsuch will decide cases as the facts and the law dictate rather than basing decisions on his, or anyone else’s, personal values. That is precisely the role of a judge and Gorsuch understands this. Unfortunately, Whitehouse and many of his colleagues don’t. That is why the Senate should confirm Judge Gorsuch as next associate justice of the Supreme Court.

We will keep you posted on additional publications by RNLA Leaders as they happen. To stay up to date, consider following our Twitter Feed and Facebook Page.

Not Equal: Not One Current Republican Senator Has Ever Filibustered a Supreme Court Nominee

Make no mistake about it, there is only one party at fault for the likely so-called nuclear option in the United States Senate to end potential filibusters for Supreme Court nominees.  As Leader McConnell stated:

Later today, due to the threat of an unprecedented partisan filibuster, I’ll file cloture on the nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court.  It should be upsetting to everyone that our colleagues across the aisle have brought the Senate to this new low, and on such an impressive nominee with such broad bipartisan support. 

Judge Gorsuch is independent, he’s fair, he’s got one of the most impressive resumes we’ve ever seen, and he’s earned the highest possible rating from the group the Democratic Leader calls the "gold standard" for evaluating judicial nominations. 

No one seriously disputes his sterling credentials to serve on the Court.  And yet, in the Judiciary Committee, Democrats just withheld support for him.  On the floor, Democrats say they’ll launch a partisan filibuster against him — something Republicans have never done. No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee. Not one Republican has ever done that.

Later today, colleagues will continue to debate the nomination of Judge Gorsuch. They’ll discuss how completely unprecedented it would be for Democrats to actually follow through on this filibuster threat — to actually block an up-or-down vote for this nominee even though a bipartisan majority of the Senate supports his nomination — and what the negative consequences would be for the Senate if they succeed. 

I’ll be listening with interest.  I hope Senators in both parties will listen as well.  

Notice, that “No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee.”  Democrats have done this before to Justice Samuel Alito, including many current Senate Members and Democrat Party leaders such as then-Senators Biden, Clinton, and Obama.  Bolded below, among the 25 who voted to filibuster Alito, are current Senate Members:

Bayh (D-IN) Biden (D-DE) Boxer (D-CA) Clinton (D-NY) Dayton (D-MN) Dodd (D-CT) Durbin (D-IL) Feingold (D-WI) Feinstein (D-CA) Jeffords (I-VT) Kennedy (D-MA) Kerry (D-MA) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Menendez (D-NJ) Mikulski (D-MD) Murray (D-WA) Obama (D-IL) Reed (D-RI) Reid (D-NV) Sarbanes (D-MD) Schumer (D-NY) Stabenow (D-MI) Wyden (D-OR)

By contrast, not one single Republican voted to filibuster Justices Sotomayor or Kagan.  The two sides are not equal.  Democrats are the ones who are forcing the rule change and “nuking” the Senate.  Republicans are standing up for the people who spoke in the election in 2016.  Thank you to Leader McConnell, Republicans and principled Democrats such as Joe Manchin, Heidi Heitkamp, and Joe Donnelly.  

Bipartisan Support in Senate for Gorsuch Confirmation

Today, two Democratic senators announced support not only for a vote for cloture on Judge Neil Gorsuch's nomination to the Supreme Court but also for his confirmation.  

Senator Joe Manchin from West Virginia said:

After considering his record, watching his testimony in front of the Judiciary Committee and meeting with him twice, I will vote to confirm him to be the ninth justice on the Supreme Court. . . . Throughout Judge Gorsuch’s career, he has come to his legal rulings objectively, through the letter of the law rather than through his own opinion. 

During his time on the bench Judge Gorsuch has received praise from his colleagues who have been appointed by both Democrats and Republicans.  He has been consistently rated as a well-qualified jurist, the highest rating a jurist can receive, and I have found him to be an honest and thoughtful man.  I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.

Senator Heidi Heitkamp from North Dakota said:

After doing my due diligence by meeting with Judge Gorsuch and reviewing his record and testimony before the Senate Judiciary Committee, I've decided to vote in favor of his confirmation.  He has a record as a balanced, meticulous, and well respected jurist who understands the rule of law.  He has unique and critical experience with tribal sovereignty, Indian law, and public lands issues in the west, and has received the endorsement of numerous tribes and major Native American organizations.  During our meeting and at his hearing, he reinforced the importance of a judiciary that remains independent of the executive and legislative branches of government - and that acts as a proper check and balance on the other two branches of government.

Other Democratic senators demonstrated some further cracks in the hardline Trump resistance movement today.  Senator Claire McCaskill of Missouri recognized that the Democrats' gridlock strategy for the Supreme Court is likely to backfire, and Senator Ben Cardin said that the Democrats should not filibuster Gorsuch.

Senators Heitkamp and Manchin are up for reelection in 2018 in states that voted for Donald Trump in 2016, and perhaps these senators have recognized the political consequences of voting against an eminently qualified judge like Judge Gorsuch.  Perhaps they have decided to listen to their constituents instead of the radical progressive special interest groups that increasingly control the Democratic Party.  Or perhaps, tellingly, they considered his extensive judicial record and made their decision on that basis, unlike their Democratic colleagues who have not bothered to review his record.  

Whatever the reason, we applaud Senators Heitkamp and Manchin for questioning the blind obstruction of the current Democratic Party and for supporting an extremely well-qualified and well-respected nominee for the Supreme Court.

Senate Tradition Requires a Majority Vote for SCOTUS

In the face of a promised filibuster by the Democrats of Judge Gorsuch's nomination to the Supreme Court, Republican senators have spoken out strongly against the use of the filibuster on Supreme Court nominees and have indicated their support if Leader McConnell is forced to exercise the constitutional option or "Reid Rule" on the Gorsuch nomination.

Senator Lamar Alexander noted earlier today that he has consistently voted for cloture on presidential nominees even when he voted against confirming them:

[W]hat the Democrats are proposing to do next week, quite apart from the fact that Judge Gorsuch is one of the most eminently qualified people we have seen come around in a long time, they're flying in the face of 230 years of tradition in the Senate by insisting that a presidential nominee to the Supreme Court require more than 51 votes to be confirmed. Now, I look very quickly back at my own votes. None of us are perfect, and I'm not asking for any merit badges, but I wonder where the Democrats are who are trying to do at least what I was trying to do when President Obama was there. And I found at least ten times where I voted for cloture, voted to cut off debate for controversial nominees with whom I disagreed with, and then I voted against them when the vote was 51. . . . [W]here are the Democrats looking to vote like that, to preserve the Senate's 230-year tradition of approving presidential nominees by a majority vote? I think this is a terrible precedent, not justified, and I'm sorry to see things heading in this direction. 

Senator Alexander gave extended remarks on the history and use of the filibuster in the Senate yesterday:

Throughout the Senate's history, approval of even the most controversial presidential nominations have required only a majority vote. . . . In fact, Senate rules have always allowed senators the option to filibuster to death a presidential nomination, yet it has almost never happened. . . . Filibustering a presidential nomination has always been treated differently than filibustering a legislative matter. . . . No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote. 

But as we approach a vote next week on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate has been to treat legislative matters one way and presidential nominations a different way. Filibustered to death legislation, yes. Filibustered to death presidential nominations, no. Should the Neil Gorsuch nomination come to the floor soon, as i believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and there should be no attempt by the minority to filibuster the nomination, especially of such a qualified man, to death. 

Such long-serving, institutionalist senators as Senator Hatch, Senator Shelby, and Senator Graham have also supported confirming Judge Gorsuch even if faced with a Democrat filibuster, while they lament what the Democrats' forcing the Republicans to exercise the constitutional option means for the future of the Senate.

RNLA thanks these senators and the other Republican senators willing to uphold 230 years of Senate tradition by supporting an up-or-down vote for Judge Gorsuch.

There Is No 60-Vote Standard for Supreme Court Nominees

In an effort to justify their unprecedented and baseless opposition to Judge Gorsuch's nomination for the Supreme Court, some Democrats have claimed that there is a 60-vote baseline for confirming Supreme Court nominees in the Senate.  This is to avoid the charge that they are filibustering Judge Gorsuch, which will likely prompt Leader McConnell to exercise the constitutional option or "Reid Rule" and change the Senate rules on Supreme Court nominations.  

The problem with this 60-vote standard is, of course, that it does not exist:

FactCheck.org: “A confirmation vote for a Supreme Court nominee requires only a simple majority, or 51 votes.” (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/17) 

The Washington Post’s Fact Checker: “Democrats are being slippery with their language. Sixty votes is not ‘a standard’ for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard.” (“Senate Democrats’ Misleading Language On A 60-Vote ‘Standard’ For Supreme Court Nominees,” The Washington Post’s Fact Checker, 2/2/17) . . . 

No Democrats now serving in the Senate have EVER insisted that a Democrat President’s SCOTUS nominee meet a 60-vote standard. 

FactCheck.org: “…that was not the case for the two Supreme Court justices nominated by Obama and approved by the Senate. . . . (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/2017) . . . The nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN506 Sonia Sotomayor, Roll Call Vote #262, 8/6/2009) . . .  [and the] nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN1768 Elena Kagan, Roll Call Vote #229, 8/25/2010)

Indeed, both Justice Clarence Thomas and Justice Samuel Alito were confirmed with fewer than 60 votes in favor.  The Democrats will continue touting fallacious liberal talking points supplied by radical progressive activists as unfounded reasons to oppose Judge Gorsuch, but this 60-vote threshold claim really should be laid to rest.

Feinstein Admitted That Democrats Aren't Considering Gorsuch's Record

RNLA Co-Chair John Ryder highlighted a "remarkable exchange" between Senator Dianne Feinstein and Judge Neil Gorsuch on Tuesday:

In conformity with the ethical requirements for judges, he refused to bind himself to how he would rule on future cases, prompting Mrs. Feinstein to lament: “How do we have confidence in you that you won’t be just for the big corporations? That you will be for the little men? … I’m just looking for something that would indicate that you would give a worker a fair shot, maybe it is in your background somewhere that I don’t know about, but I’d like to have you respond to it any way you can.” . . .  

Judge Gorsuch thanked Mrs. Feinstein for the opportunity to correct the presentation of his judicial record, noting that he had participated in more than 2,700 opinions in over 10 years on the federal bench and Democratic senators had selected just a few to focus on that do “not represent the body of my work.” He has, as he pointed out, ruled for both big corporate and “little guy” parties, depending on the law applicable in that case. . . . Then he listed 13 cases in which he ruled for . . . “little guys.” 

Mrs. Feinstein’s response was astounding: “That’s helpful. We’ll find them and read them.” Think about what that means. 

In the seven weeks since President Trump announced Judge Gorsuch as his nominee to Scalia’s seat on the Supreme Court, Mrs. Feinstein and her staff have not bothered to thoroughly research or review the judge’s extensive record. . . . Instead of engaging in a meaningful review of the nominee and his qualifications, the senator and her staff have been content to rely on the talking points given to them by radically progressive groups whose only goal is to oppose Mr. Trump, Republicans and conservative principles in any and every way possible.

This was typical of the Democrats' approach throughout the hearing, in which they either focused on the outcomes (and rarely the legal reasoning) of a small handful of cases cherrypicked from his extensive judicial record or attempted to have him unethically bind himself on future cases or express political views.  Instead of engaging in a genuine inquiry into Judge Gorsuch's legal philosophy and interpretative methods, they chose (with a handful of notable exceptions) to simply repeat progressive talking points that voters showed they were tired of last fall.

Click here to follow RNLA's commentary and highlights on Twitter. Please consider signing the RNLA's letter to the Senate in support of Judge Gorsuch's confirmation here.

Judge Neil Gorsuch: The Type of Judge Envisioned by Our Framers

Within the last week, there have been many opinions and editorials written by the legal experts and supporters of Judge Gorsuch. He has actually racked up quite the list of supporters--liberal and conservative, Republican and Democrat, lawyers and non-lawyers. Judge Gorsuch is continuing to add to his list of supporters, now including two former chief judges from the Tenth Circuit: Deanell Reece Tacha and Robert Henry.

The Judges take a slightly different approach in their article. They look at the confirmation process a bit differently, undoubtedly, in part due to their own confirmation experiences as former federal circuit court judges. They emphasise the need for the Judiciary to remain independent and not to cave on Senators' questions that could erode this independence.

Our primary Framer for the courts was none other than Alexander Hamilton, of recently renewed fame. Describing the judiciary in Federalist 78 as the “least dangerous” of the three branches of government, Hamilton emphasized that the “complete independence of the courts of justice is peculiarly essential in a limited Constitution.” This “independence of the judges” is a most sacred tradition in U.S. constitutional law, requiring all judges to have no obligations to those who nominated or confirmed them.

Besides — as history has revealed — it is not even possible to select Supreme Court justices based on how they might rule on given topics. Detailed discussions during the confirmation process on issues that might come before a judge are not proper; in fact, they would in all likelihood require recusals from the cases discussed. Litmus tests are not acceptable. Furthermore, the controversies that go before the court often bring unique and complicated facts that could completely change a judge’s sincerely espoused view.

. . .

We are both former chief judges on the U.S. Court of Appeals for the 10th Circuit. One of us is a lifelong Republican; the other, a lifelong Democrat. We both had the opportunity to serve with Gorsuch for several years on the 10th Circuit. He was, like most good judges, assiduously attentive to the facts and law in each case. All of the matters mentioned above (and others) should influence — or even change — a judge’s decision dealing with the specific set of facts in any case before him or her.

Gorsuch’s body of work is surely informed by both textualism and originalism, but he was, in our experience, always open to consideration in the proper cases of precedent, history, tradition and the “bones” of our federal republic’s structure. Other important traits of Gorsuch that are not likely to change: his fair consideration of opposing views, his remarkable intelligence, his wonderful judicial temperament expressed to litigants and his collegiality toward colleagues.

If we seek to confirm to the Supreme Court a noted intellect, a collegial colleague, and gifted and eloquent writer — as well as a person of exhibited judicial temperament — Gorsuch fits that bill. He represents the best of the judicial tradition in our country. We think that Hamilton would concur.

Judge Gorsuch wrapped up his testimony tonight.  Tomorrow, an expert panel will testify on Judge Gorsuch's credentials and qualifications. A final vote is expected in early April.

Click here to follow RNLA's commentary and highlights on Twitter. Please consider signing the RNLA's letter to the Senate in support of Judge Gorsuch's confirmation here.

Judge Gorsuch Meets All the Democratic Standards for SCOTUS Nominees

Today, Michael Thielen, Executive Director of the RNLA, wrote an op-ed for The Daily Caller pointing out that Judge Gorsuch meets and should be held to all the Democratic Standards as applied to past Supreme Court nominees in recent history.

The Schumer Standard:

First and foremost, the Senate was merely following the Schumer Standard.  In July 2007, current Minority Leader and then-Senator Chuck Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow President Bush the chance to fill it “except in extraordinary circumstances,” as his term was almost over.  July 2007 was seven months sooner than Senate Leader Mitch McConnell invoked the Schumer Standard.  It should also be noted Leader McConnell used the Schumer Standard before Garland was even nominated. . . . Second, the Gorsuch hearing should have nothing to do with Judge Garland or his nomination.  The Garland Nomination in 2016 was not about his qualifications, but solely turned on the Senate process in an election year per the Schumer Standard.  This is a non-issue today.

 The Leahy Standard:

Meanwhile, the next Democratic standard dates to the Reagan Era and was established when considering Antonin Scalia’s Supreme Court Nomination.  The Leahy Standard announced in 1986 by the longest-serving senator and former Judiciary Chairman Patrick Leahy says: “I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that.” 

Judge Gorsuch more than satisfies both elements of the Leahy Standard.  President Trump went further than President Reagan by announcing a list of 21 potential judges that he would nominate during the 2016 campaign.  Gorsuch was on that list.  President Trump decisively won the Presidency. Therefore, it is clear that President Trump clearly has a mandate to nominate and confirm Gorsuch. . . The second element of the Leahy Standard requires a nominee be “otherwise qualified.”  Fortunately, we do not have to guess what Senator Leahy meant in this case.  Senators Leahy and Schumer have been very clear in the later standard: the American Bar Association’s (ABA) assessment being the “gold standard” in evaluating federal judicial nominations.  Here, the ABA has given Judge Gorsuch its highest rating, unanimously well-qualified.  As such, Gorsuch easily meets these Standards established by the Democrats. 

The Ginsburg Standard:

What if Neil Gorsuch fails to adequately testify at his confirmation?  Well — the reality is by the standards of the Democrats’ beloved Justice — Democrats simply cannot complain.  As liberal icon Justice Ruth Bader Ginsburg stated during her confirmation hearing to the Supreme Court, she could offer “no hints, no forecasts, no previews.” 

The Reid Standard:

However, if Senator Schumer insists on ignoring all his own side’s standards, Leader McConnell can use one last Democrat Standard, the Reid Standard.  Then-Senate Majority leader Harry Reid changed the procedure to requiring a simple majority of votes for all nominees, but Supreme Court nominees.  However, Reid made clear that was a mere formality, when he said last October:  “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” he said. “It’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” 

So, the Reid Standard clears the way for the Republicans to confirm a Supreme Court nominee as always been done with a simple majority.  Senator Schumer responded to Reid’s comments by saying: “I hope we don’t get to that”. . . The irony is if the Democrats don’t follow their own clear and articulated standards, Leader McConnell may be forced to make them follow their own former leader’s standards and impose the Reid Standard upon the Senate.

The full article is a good read especially as the Senate Judiciary Committee questions Judge Gorsuch. Yesterday, opening statements were made by the senators on the Judicary Committee and Judge Gorsuch. Today, the first round of questions are proceeding one-on-one by the senators on the Committee. Tomorrow, round two is expected to commence and scheduled to conclude. Thursday, the Committee will hear testimony by various legal experts. 

Follow the RNLA's real-time Twitter commentary today and tomorrow here. Also, please consider signing the RNLA's letter to the Senate in support of Judge Gorsuch's confirmation here.

Highlights of Twitter Today on Gorsuch Hearing

Here are some highlights from Twitter coverage (aside from the RNLA's coverage) of the Senate Judiciary Committee hearing on Judge Neil Gorsuch's nomination to the Supreme Court, which began today:

The first test of SupCt nominees is to sit still and simulate interest in senators as though they were speaking intelligently.

— Matt Franck (@MatthewJFranck) March 20, 2017

Grassley's opening statement focuses on importance of judicial independence, separation of powers. Gorsuch's record shows that in spades.

— Carrie Severino (@JCNSeverino) March 20, 2017

If Feinstein's statement is indicative of Democrats' strategy, they are poised to blow this. Unfocused, unfair, and weirdly amateurish.

— Mark Joseph Stern (@mjs_DC) March 20, 2017

Sen. Whitehouse--contra Feinstein--says "originalism" favors liberal outcomes and conservative justices were being activist. So which is it?

— Randy Barnett (@RandyEBarnett) March 20, 2017

Dem senator Bennet praises Gorsuch's "outstanding INTEGRITY and intellect." Undercuts Left's baseless claim that Gorsuch is biased jurist.

— Ed Whelan (@EdWhelanEPPC) March 20, 2017

"In the West, we listen to each other." - Gorsuch in 97% unanimous rulings, 99% in majority. Legit wow. #GorsuchHearing

— Ilya Shapiro (@ishapiro) March 20, 2017

The hearing will reconvene tomorrow at 9:30 AM Eastern and is expected to go through Thursday.   For great coverage of the hearing on Twitter, follow:

• RNLA
• Ed Whelan
• Carrie Severino
• Ilya Shapiro
• Randy Barnett
• Tiffany Bates
• Elizabeth Slattery
• Senate Judiciary

RNLA will be live-tweeting and retweeting great commentary throughout the hearing.  Follow us on Twitter here.

The Leahy Rules for Supreme Court Confirmation Mean Gorsuch Must Be Confirmed

In preparation for the Gorsuch hearing next week, we thought we would mention some of the Democrat Rules for confirmation of a Supreme Court Justice from their most senior member. The Leahy Rule (Part 1) on the President’s power to pick a Supreme Court Justice.

And I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that. (Senator Patrick Leahy, Meeting of Senate Judiciary Committee 69, Aug. 14, 1986, discussing Justice Scalia.)  

This quote is incredibly relevant as President Trump ran on Gorsuch as a possible nominee.  Thus, he deserves even more respect than President Reagan on that front.   

The Leahy Rule (Part 1) dictates Gorsuch be confirmed as long as he is “otherwise qualified.”  The Leahy Rule (Part 2) dictates that the ABA rating of a nominee is the gold standard.  As current Judiciary Chairman Chuck Grassley stated recently (emphasis ours):

With less than two weeks to go before he appears before the Senate Judiciary Committee for a hearing on his nomination to the Supreme Court, the American Bar Association on Thursday gave 10th Circuit Judge Neil Gorsuch its highest possible rating.

“The ABA’s ringing endorsement is no surprise given Judge Gorsuch’s sterling credentials and his distinguished decade-long record on the Tenth Circuit,” Senate Judiciary Chairman Chuck Grassley, R-Iowa, said in a statement. “Former Chairman [Sen. Patrick] Leahy and [Senate] Minority Leader [Chuck] Schumer have called the ABA’s assessment the ‘gold standard’ in evaluating federal judicial nominations. In light of Judge Gorsuch’s impeccable record, it’s hard to imagine any other result from the ABA’s consideration.”

The Leahy Rules mean that Judge Gorsuch should be promptly and easily confirmed. 

Are Liberal and Democrat Attacks on Gorsuch Starting to Backfire?

Two separate lines of attack on Judge Gorsuch by liberals may be backfiring.  The first may be today’s attack on Gorsuch in The New York Times:

The New York Times published a front-page story Wednesday on President Donald Trump's Supreme Court nominee Neil Gorsuch and his ties to a "secretive billionaire," despite never devoting equal coverage on a Democratic senator who had even more direct ties to the same tycoon.

The Times reports that Gorsuch represented Anschutz in several federal court cases while working for a private law firm in Washington, D.C. starting in 2004. In 2006, Anschutz sent a letter to the Bush administration recommending Gorsuch–who was then in the Justice Department–for an open federal judgeship. Gorsuch also co-owns a log cabin retreat with two Anschutz executives.

But Gorsuch was never a direct employee of Anschutz or a key executive in his empire, unlike Democratic Colorado Sen. Michael Bennet. From 1997 to 2003, Bennet served as managing director of Anschutz Investment Co.

The Times may be concerned over Gorsuch's "web of ties" to Anschutz, but The Denver Post noted that "executives and family members associated with Anschutz Co., Anschutz Group or Anschutz Investments donated more to Bennet… than to any other federal candidate."

If Anshutz is a bad person to have contacts with, then Senator Bennet of Colorado is the one in trouble, not Judge Gorsuch.  Further Gorsuch, unlike Bennet, has recused himself from matters involving Anschutz.  As David French writes:

Gorsuch, by the way, disclosed his ties to Anschutz and recused himself from cases involving his former clients, as ethical judges do.

Americans should take comfort from the fact that Gorsuch is so squeaky clean that this is a news story. Here’s a news flash: when lawyers do their jobs well, their clients tend to become their friends. I make no claim to be an attorney of Gorsuch’s caliber, but I have my own “web” of valued friendships and ties to former clients. This is completely normal in the practice of law, and lawyers without former clients as friends should worry about their own competence.

Senator Bennet may have something to worry about over Anschutz, but any way you look at it, it is a positive for Gorsuch. 

In a separate attack, a liberal group is going after Gorsuch on campaign finance matter.  Once again, the attack has the opposite of the intended effect.  As David Keating writes:

Democrats and progressives are losing their minds over President Trump's Supreme Court nominee, Neil Gorsuch. One left-wing advocacy group released a video titled "3 Reasons to Fear Judge Gorsuch." Number one? According to them, if Gorsuch is on the Supreme Court, "our elections could be completely handed over to the powerful and the wealthy."

That ludicrous statement refers to Gorsuch's concurring opinion in Riddle v. Hickenlooper, a campaign finance case. Riddle challenged Colorado's contribution limit law as discriminatory.

Was it ever! It allowed major party candidates to raise twice as much money as minor party candidates and independents. Progressives love to say "money isn't speech," but Riddle wasn't about that. It was about equality.

The Tenth Circuit unanimously struck down the contribution limit scheme as a violation of the Fourteenth Amendment's equal protection clause. A Republican candidate doesn't get to raise more money from individual supporters than a Green Party candidate. The law must treat everyone the same.

So in other words, Judge Gorsuch ruled for the far-left, small parties such as the Green Party over the establishment parties such as Republicans and Democrats.  Gorsuch ruled for the little guy and against the powerful establishment parties. 

Democrats attacks on Judge Gorsuch are backfiring and helping to make the case for his confirmation, even among liberals.