Below is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees. For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg. There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term. Those concerns have now been magnified and realized with the Trump election and filibuster elimination. Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court. New rumors have arisen this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.
This morning I will testify at the confirmation hearing on the nomination of the Hon. Neil Gorsuch to the United States Supreme Court. The hearing will commence around 9 am at the hearing room of Hart 216. Ironically, it is the same room that I litigated much of the Porteous impeachment case before final arguments before the 100 Senators on the Senate floor. Below is my written testimony. Continue reading
Judge Neil Gorsuch is scheduled to complete the long and grueling questioning of his confirmation hearing today. Indeed, he may finish a bit early. Like past nominees, Gorsuch declined to discuss cases and said little about his positions on possible cases dealing with subjects like abortion. Nominees are trained to hit grounders in these hearing and avoid pitches in the corners or trying to put anything over the wall. He stayed with that strategy and the Democrats have made little progress in undermining his stellar record. I have two columns out today at USA Today and The Hill newspaper discussing different aspects of the nomination. I am scheduled to testify at the hearing on Thursday when they call expert witnesses. There remains one disturbing question, however, that needs to be addressed: is Judge Gorsuch anti-duck?
I have long been a critic of Supreme Court justices embracing the era of what I have called “the celebrity justice.” Justices are increasingly appearing before highly ideological groups and inappropriately discussing thinly veiled political subjects or even pending issues. She previously called President Trump as “faker.” Supreme Court Justice Ruth Bader Ginsburg has been a notable recidivist in his type of conduct and does not appear to be deterred by criticism that she is undermining the integrity of the Court. She is back at it with a new interview with the BBC.
Today the Supreme Court will hear Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate. The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010. The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him. The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents. Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate. At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.
We previously discussed the controversy over a painting by a constituent of Democratic Rep. William Lacy Clay that depicted police as pigs in Ferguson, Missouri. As we discussed, the House had a right to remove the art and eventually did precisely that. However, before that decision from the House, Rep. Duncan Hunter (R., Cal.) took down the painting. Clay called for criminal charges. When the painting was rehung, another Republican member removed it. At the time, Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, said “We may just have to kick somebody’s ass and stop them. Then the architect stepped in and barred the hanging of the picture. Now Clay has announced that he will file a lawsuit challenging the actions of the House of Representatives. It is hard to see a strong legal basis for such a challenge. The odds heavily favor the House of Representatives in the action.
The United States Court of Appeals for the Ninth Circuit has declined a demand for an immediate reinstatement of the Executive Order on immigration but has scheduled expedited arguments and filings in the case for Monday. The decision is not surprising in such a case. Courts need to hear from the other side in the dispute, particularly when the Washington Attorney General prevailed in the trial court. Moreover, a temporary restraining order is very difficult to reverse on an interlocutory appeal. Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy. Of course, nothing is “normal” about this controversy in terms of procedure or policy. With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation. The Justice Department team was not helped by President Trump’s tweets casting aspersations on Judge James Robart of Federal District Court in Seattle as a “so called judge.” Such comments undermine the credibility of the claims. It is less compelling to demand respect for the executive branch if you are viewed as denigrating the judicial branch. While there is ample reason to question the ruling of Judge Robart, but he is a respected judge who made a good-faith decision on a tough legal question. He is not a “so-called judge” but a real judge and has the Senate confirmation to prove it. Having said that, media playing up the “rejection” by the Ninth Circuit are not being entirely accurate. The Ninth Circuit wants more argument and has not reached the merits. There is still question whether it will reach the merits on a TRO appeal. I still believe that President Trump has the advantage legally and we could see this order stayed. The question is when and how since this remains a temporary restraining order without a written opinion from Judge Robart.