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.

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.

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.

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.

The Far Left Is Running, and Ruining, the Democrat Party

For years, newspapers have written about the “Tea Party” running and ruining the Republican Party.  While those stories were completely overblown, there seems to be some truth to the far left ruining the Democrat Party by demanding nonsensical things against the wishes of the majority of Democrats.

Let’s take as one example: potential obstruction of President Trump’s qualified and popular Supreme Court Nominee Neil Gorsuch.  On the far left there are people like Al Sharpton demanding obstruction indefinitely.

 “They can stall as long as they want till their man gets in the White House,” Sharpton continued.

On the other side, you have the number two Democrat in the Senate Dick Durbin stating:

 “The base wants me to reject him out of hand,” said Senator Richard J. Durbin of Illinois, the body’s No. 2 Democrat, who will meet with Judge Gorsuch on Tuesday. “I don’t think that serves the country well.”

So individual senators are stuck between doing what is right for their country and their constituents versus appeasing their far-left base.  A great example is Senator Sheehan of New Hampshire. 

Last week, Shaheen said, "Everybody I've talked to agrees he should get a hearing and an up-or-down vote."

As the ninth Democrat committed to bringing Gorsuch's nomination to a vote, Shaheen would have guaranteed that Democrats would not be able to sustain a filibuster. White House press secretary Sean Spicer welcomed her decision and hopes more Democrats would join her.

So Shaheen flip-flopped. She tweeted to Spicer that she only meant a cloture vote.

. . .

That's just not true. An "up-or-down vote" in the Senate means a vote to confirm the nominee, not a procedural vote to close debate. Shaheen knows better. She just hopes the rest of us don't.

Senator Claire McCaskill of Missouri did a similar tweet and now she is using a more extreme tactic in an effort to get the base off her back. 

“I’m not talking about the Supreme Court nominee at all, in any way,” Ms. McCaskill said. “I just don’t think it’s a good idea.”

If the Senators ignore their constituencies and cave to the extremists in their party, Republicans have a strong case to end the 60-vote filibuster.  As the Fix’s Aaron Blake writes in the Washington Post:

And as I've written, an unprecedented Supreme Court filibuster against a clearly 
qualified and likable nominee would just give Republicans a good excuse to do away more of the filibuster. 

Whether the Democrats have given into liberal extremists or will they listen to their constituents is up in the air but, as Roll Call writes, one thing is for sure:

If Democrats have a cohesive strategy, they’re hiding it.

On Anniversary of Scalia's Death, Gorsuch Is His True Successor

On this day last year, Justice Antonin Scalia died unexpectedly, devastating the legal world and presenting a vacant Supreme Court seat as an issue in the 2016 presidential election.  When President Trump nominated Judge Neil Gorsuch to Justice Scalia's seat on the Supreme Court, he kept his campaign promise of nominating someone in the mold of Justice Scalia:

If he is confirmed by the Senate, Gorsuch, 49, will represent the first generation of Supreme Court justices to have been influenced by Scalia's rulings, writings and teachings while still in law school. He was chosen by President Trump in part because he is in the mold of Scalia, as lawyers who served as law clerks to both judges attest. 

"Though the critics are loud and the temptations to join them may be many, mark me down ... as a believer that the traditional account of the judicial role Justice Scalia defended will endure," Gorsuch said in a speech last year at Case Western Reserve University School of Law, delivered shortly after the justice's death at 79. . . . 

Having clerked for both, [Matthew] Owens says Gorsuch will "remind everyone of Justice Scalia for a long time to come" because of his determination to call cases as he sees them, regardless of his personal views. 

But despite their similarities, he says of Gorsuch, "I hope that he'll be seen as a successor, and not just a copy." 

Three former Gorsuch and Scalia clerks wrote today of how Judge Gorsuch is the "perfect replacement" for Justice Scalia and shares his overall judicial philosophy:

Although no one can replace the Justice, we can think of no one more worthy of his seat than Judge Gorsuch. He is a brilliant thinker, a fair and independent judge and a clear and effective communicator of important ideas. . . . 

Judge Gorsuch's opinions reflect the principle Justice Scalia spent his career defending: that in a democracy, the people's elected representatives, not judges, get to decide what laws we should have. In a lecture last year, Judge Gorsuch paid tribute to that "great project of Justice Scalia's career," reminding us of "the differences between judges and legislators" and of judges' duty "to apply the law as it is . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." Justice Scalia couldn't have said it better himself. . . . 

It is no surprise, then, that Judge Gorsuch has gained a wide reputation as a principled and deep-thinking judge. On occasion that has even led him to disagree with the late justice. For example, Justice Scalia was a longtime defender of Supreme Court precedents that require courts to defer to federal agencies about the meaning of statutes passed by Congress. Judge Gorsuch, however, recently called for a rethinking of those cases – for a reason Justice Scalia would have found familiar. Judge Gorsuch objected that judicial deference to executive agencies is "more than a little difficult to square with the Constitution of the framers' design" because it effectively allows executive bureaucracies to "swallow huge amounts of core judicial and legislative power," which are supposed to be located in separate branches of government.  

Justice Scalia was a remarkable man, legal thinker, and justice, and he can never truly be replaced.  But in nominating Judge Gorsuch, President Trump has come as close as possible to nominating someone who shares Justice Scalia's understanding of the rule of law, the role of the courts, and the importance of the text in the interpretation of the Constitution and statutes.

Editorial Boards Praise Gorsuch Nomination

Local editorial boards across the country, including liberal ones that vehemently disapprove of President Trump, have praised President Trump's nominee for Justice Scalia's seat on the Supreme Court, Judge Neil Gorsuch, and called for the Senate to vote on his nomination.  Here are some examples:

New Hampshire Union Leader: Liberal interest groups are lining up against Gorsuch, arguing that he sides with employers over employees. But Gorsuch has always sided with the law. He refuses to bend the law in favor of sympathetic plaintiffs making groundless claims.  

The Detroit News (Michigan): Gorsuch is a masterful pick. His resume and background are beyond challenge: Harvard-, Columbia- and Oxford-educated; clerked for two Supreme Court justices; praised for his temperament and reverence for the law; more than a decade of experience on the federal bench. 

He is a legal superstar and Democrats know it. It will be tough to paint this thoughtful Coloradan whose most significant ruling was affirming religious freedom in the Hobby Lobby case as out of the mainstream. 

Longmont Times-Call (Colorado): Much to his credit, President Trump has nominated a resoundingly traditional, eminently qualified federal appellate judge for a lifetime appointment to the nation's highest court.   

East Bay Times (California): Reading many of those decisions, one sees a “textualist” thinking similar to that of Scalia. However, his writing differs markedly from Scalia’s famously abrasive — and sometimes bombastic — style. Gorsuch’s smooth opinions consistently strike a respectful, considered tone. Many begin as if written by someone wishing to tell a human story rather than by a jurist passing judgment. 

Tampa Bay Times (Florida): In perhaps his most responsible decision since taking office, President Donald Trump has nominated a well-qualified, conservative federal appeals court judge to the U.S. Supreme Court. Judge Neil Gorsuch is widely praised for his sharp intellect, low-key demeanor and clear writing. While he should be questioned closely about his record and originalist approach to interpreting the U.S. Constitution, he deserves a full confirmation hearing and a vote in the Senate. . . . 

There will be plenty of other opportunities for Democrats to draw a red line and oppose the president. This is not one of them, and the nation needs to see some return to normalcy in Washington. Gorsuch is a well-qualified conservative who would not tilt the Supreme Court's ideological balance, and he deserves full consideration and a confirmation vote by the Senate. 

Daily Camera (Colorado): Judge Gorsuch peels back the layers of each case carefully, with precise argument and elegant prose (read Gutierrez-Brizuela v. Lynch, 834 F.2d 1142 (10th Cir. 2016)). He strongly believes executive branch overreach violates the Constitution's separation of powers, citing The Federalist No. 47 (James Madison), "(t)he accumulation of all powers, legislative, executive and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."

Articulate defense of our Constitution's limits on the exercise of executive power matters more today than ever before. . . .  

Albany Democrat-Herald (Oregon): As for concerns that Gorsuch is too conservative for the Supreme Court, here's a reminder: The president of the United States gets to make nominations to the Supreme Court. If you wanted a nominee with a different ideological bent, well, you're probably wishing today that Hillary Clinton had run a better campaign. 

Chicago Tribune (Illinois): The Gorsuch pick offers both parties a chance to end these selfish antics. Early reviews suggest he's fair-minded, brilliant, collegial — and the sort of conservative Trump told voters he'd nominate. New York University law professor Richard Epstein, who disagrees with Gorsuch on some issues, on Wednesday gave us his verdict: "He is all around a terrific guy, and if he is out of the mainstream then no Republican appointee to the bench is within it. Nor is he like Scalia in temperament. He thinks first, then writes, does not have any strong intellectual crusades on anything from standing to abortion to gay rights." 

Charleston Gazette-Mail (West Virginia): From the evidence so far, Neil Gorsuch has the qualities anyone considered for justice of the highest court should have: a strong understanding and respect for the nation’s founding document, the U.S. Constitution.

These editorial boards have recognized, as have many other intellectually honest Democrats, liberals, and moderates, that Judge Gorsuch is an extremely well-qualified nominee who understands his role as a judge and who will interpret the law and not promote a specific agenda on the Supreme Court. 

VP Pence on Gorsuch: "Worthy Successor to Justice Antonin Scalia"

On Saturday, Vice President Mike Pence spoke on Judge Gorsuch's nomination to the Supreme Court at Congress Hall in Philadelphia, Pennsylvania, in an event sponsored by The Federalist Society.  Here are excerpted highlights of Vice President Pence's remarks:

[The Constitution] was, it is, and I believe will forever be the greatest charter of liberty our world has ever seen.  It's fostered our nation's unparalleled success.  And it is to this day the greatest bulwark against tyranny in history.  This is the Constitution that President Trump and I have both sworn to uphold. . . . And I promise you, we will keep that oath.

The American people elected President Trump, I believe in significant part, because of his vow to . . . nominate someone to the Supreme Court in the mold not only of Justice Thomas but of the late and great Justice Antonin Scalia. . . . Justice Antonin Scalia's devotion to the Constitution will be forever remembered by the people of the United States of America. 

I can say with the utmost confidence that Judge Gorsuch is a worthy successor to Justice Antonin Scalia. . . . When you get right down to it, Judge Gorsuch, plain and simple, is one of the most mainstream, respected, and exceptionally qualified nominees in American history.  But don't take my word for it.  That was actually the conclusion of the American Bar Association in 2006. . . . [T]he ABA gave him a unanimous rating of well qualified, which is the highest possible recommendation.  And the United States Senate agreed.  Only two months after Neil Gorsuch's nomination to the court of appeals, the Senate confirmed him by a unanimous voice vote.  And nearly a third of those senators on both sides of the aisle are still serving in the Senate today. 

In his decade on the Tenth Circuit, he's established himself as a fair and impartial judge who's been faithful to the Constitution.  He's well-known by his peers as a keen legal thinker, and just as important, a clear legal writer.  It's evident to all that he's a man, also, of high character and courage, indispensable qualities for a jurist. 

Our constitutional order requires the rule of law without exception.  We are, after all, a nation of laws. Judge Gorsuch firmly understands this.  He's said on many occasions that judges must apply the law as written without regard to their own politics or personal feelings.  He put it well on Tuesday, and movingly, saying: "In our legal order, it's for Congress, and not the courts, to write new laws."  He added: "It is the role of judges to apply, not alter, the work of the people's representatives."  And my favorite line [was]: "A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands." I don't know about you, but that's my kind of Supreme Court justice. 

Judge Gorsuch's record on the bench clearly demonstrates his fidelity to the wisdom of the Founders rather than the whims of our own day and age.  He's written more than 200 published opinions in his decade on the Tenth Circuit.  And if you read them all, . . . an unmistakeable picture emerges.  He's an originalist and a textualist who will pick up right where Justice Scalia left off.  Judge Gorsuch has such a long history of holding the separation of powers and the checks and balances between the three branches.  He also defends the Constitution's unique system of federalism, and he restricts the national government to the specific and enumerated powers enshrined in the Constitution while leaving to the states much more sizable control over their lives and destinies. . . . By defending [these mechanisms], Judge Gorsuch has shown himself to be a true friend of our freedoms. . . . Our Constitution and our country will be stronger with him on the Supreme Court. 

Never before in the history of our country has an Associate Justice nominee to the Supreme Court faced a successful filibuster, and Judge Neil M. Gorsuch should not be the first. . . . We will work with the Senate leadership to ensure that Judge Gorsuch gets an up or down vote on the Senate floor, one way or the other.  This seat does not belong to any party, or any ideology, or any interest group.  This seat on the Supreme Court belongs to the American people, and the American people deserve a vote on the floor of the United States Senate.

Thank you, Vice President Pence, for your commitment to supporting the rule of law, the Constitution, and our founding principles through the nomination of Judge Gorsuch to Justice Scalia's seat on the Supreme Court.

Reactions by Conservative Organizations and Leaders to President Trump's Supreme Court Nominee, Judge Neil Gorsuch

Reactions from some conservative organizations and leaders around the country concerning President Trump’s nomination of Judge Neil Gorsuch from the Tenth Circuit Court of Appeals to the United States Supreme Court:

John Malcolm, Elizabeth Slattery, and Tiffany Bates of The Heritage Foundation: Gorsuch is an eminently qualified and well-respected judge with a record that demonstrates he cares about religious liberty, the separation of powers, and the original public meaning of the Constitution and the laws he interprets. He would be a fine successor to Scalia. 

Ilya Shapiro of the Cato Institute: Gorsuch is an originalist, always looking to the original meaning of the Constitution and its structural protections for liberty. 

He’s also a textualist, with a strong command of how to interpret statutes according to their plain meaning — in particular construing them narrowly when they involve criminal penalties, like Scalia did. Also like Scalia, Gorsuch isn’t a fan of legislative history, noting “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.” 

Pacific Legal Foundation: “Judge Gorsuch is superbly well qualified to serve on the Supreme Court and his prior opinions demonstrate a careful effort to enforce the text of the Constitution and laws as they are written,” said Todd Gaziano, Executive Director of PLF’s DC Center and Senior Fellow in Constitutional Law. “Federal judges, especially justices of the Supreme Court, play an essential role in protecting individual rights guaranteed by the Constitution, including property rights, economic liberty, freedom of speech, and other limits on the power of government regulators." 

National Rifle Association: During his tenure on the Tenth Circuit, Gorsuch has demonstrated his belief that the Constitution should be applied as the framers intended.  To that end, he has supported the individual right to self-defense.  Specifically, he wrote in an opinion that "the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly." 

Americans for Prosperity: A qualified, experienced choice for the Supreme Court, Judge Gorsuch’s long record illustrates his respect for the rule of law. He does not legislate from the bench, but instead believes that judges should follow the law as it is written. Throughout his career he’s shown his commitment to protecting the Constitution and defending our freedoms. At Americans for Prosperity, we believe these values will serve him well as a member of the Supreme Court and as a replacement for the late Justice Scalia. 

Public Interest Legal Foundation: “This selection should hearten any believer that the role of the judiciary is to consider what the law says—not what it should say,” PILF President and General Counsel J. Christian Adams said. “Former colleagues speak of Judge Gorsuch’s tested adherence to the honorable tradition of strict constructionism just like the late Justice Antonin Scalia before him. The Rule of Law is on firmer ground tonight, and we will have Judge Gorsuch to thank for that." 

Concerned Women for America: “Judge Neil Gorsuch is a superb choice. President Trump has kept his word and nominated someone who, by all indications, is “in the mold of Justice Scalia,” something the president repeated over and over during his campaign. 

Judicial Watch: President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court is a victory for Americans who are fed up with corrupt judicial activism.  The judicial branch needs as much draining as the rest of the federal government swamp. President Trump avoided the temptation to nominate yet another politician to the Supreme Court.  It is good we have a nominee who has a demonstrated record of applying the rule of law rather than legislating from the bench.  The U.S. Senate should swiftly confirm him. 

Ramesh Ponnuru of the American Enterprise Institute (AEI): President Trump’s nominee to the Supreme Court will be Neil Gorsuch, a well-respected conservative whose legal philosophy is remarkably similar to that of Antonin Scalia, the justice he will replace if the Senate confirms him. He is, like Scalia, a textualist and an originalist: someone who interprets legal provisions as their words were originally understood. 

The Buckeye Institute: The Buckeye Institute's President Robert Alt said the following: "Judge Neil Gorsuch's approach to the law is, well, judicious. Gorsuch has said that judges ought to declare what the law is, not what 'they might wish it to be in light of their own political views.' The commonsense of Gorsuch's judicial philosophy is refreshing in the overly politicized climate of Washington these days." 

Jim Daly of Focus on the Family: I am greatly encouraged by the President’s nomination of Judge Neil Gorsuch to fill the vacancy on the U.S. Supreme Court created by the untimely death of Justice Antonin Scalia last year. President Trump included Judge Gorsuch on his list of potential justices during his campaign, and he kept his promise to choose a candidate from the list.

RNLA joins with these fine organizations and thought leaders in praising President Trump for his nomination of Judge Gorsuch to Justice Scalia's seat on the Supreme Court and calling for his swift confirmation without partisan bickering.