Erwin Chemerinsky and Joan Biskupic on Supreme Court nominee Judge Neil Gorsuch

Dean Chemerinsky and Joan Biskupic

UCI Law Dean Erwin Chemerinsky and Joan Biskupic, Visiting Professor, Legal Analyst and Supreme Court biographer, discuss the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, including the judge’s originalism philosophy, whether Senate Democrats will filibuster the nomination, and if and when the judge will ultimately take a seat on the bench of the country’s highest court.

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[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter at UCI #UCILawTalks

[Erwin Chemerinsky] I’m Erwin Chemerinsky, Dean of the Law School at the University of California, Irvine and I'm here with Joan Biskupic. Joan is a visiting professor here UCI Law School. She's also a legal analyst for CNN and the editor in charge of legal affairs for Reuters on leave this year. And we're here to talk about President Trump's nomination of Neil Gorsuch to the United States Supreme Court. I think there's no doubt that Neil Gorsuch is impeccably qualified for the position. The issue is really going to be about his ideology don't you think?

[Joan Biskupic] I think so and thank you for having me to this podcast. This is an incredibly newsy time for the Supreme Court. His credentials match most of the justices who have already been confirmed. He has a Harvard law degree; he's been on the U.S. Court of Appeals for the Tenth Circuit based in Denver since 2006. He obviously is a very smart measured individual but every sign points to him having a strong right wing ideology, which is actually like the man he would succeed, Antonin Scalia. Now in a normal situation it would be a one for one position but what will concern Democrats is the fact that for 10 months another individual’s name was pending for this opening caused by the death of Antonin Scalia and that was Merrick Garland. And Merrick Garland’s ideology is obviously far more moderate than Neil Gorsuch’s. I think that a fight would be brewing on this. But if he does get on the court it will be awash in terms of where the court was at before last February 13 when Justice Scalia died.

[EC] You said so many things I want for us to talk about. Let me start with the how the Senate Republicans refused to hold hearings or vote on Chief Judge Merrick Garland. To what extent do the Democrats feel the stolen seat and how's that going to likely affect the what happens with regard to Neil Gorsuch?

[JB] That is the one thing Senate Democrats have going for them to mobilize for this seat. They can't oppose Judge Gorsuch in terms of credentials or really in terms of ideology, generally. What they are trying to do is wave a banner that says, “Remember Merrick Garland. Remember Merrick Garland.” When President Obama nominated Merrick Garland on March 16, he thought he was choosing a compromise candidate because Judge Garland was first of all at that point 63 years old which is old for an appointee for a lifetime seat. He was a former – he is a former prosecutor with a very moderate record. He isn't your to typical Left-leaning jurist. So President Obama was actually in some ways offering an olive branch in a compromise but he didn’t even get a single hearing. Republicans had mobilized before then to block him and I think what minority leader Chuck Schumer right now is counting on is a real showing of the troops from the Democratic side to lay down a marker. As we have talked, if it were Republicans in the situation right now they would filibuster this nominee. Republicans in the Senate have always had on judges, a take no prisoners attitude. Democrats have had trouble meeting them on that score.

[EC] Before we get to talking about whether we think the Democrats will or should filibuster, you said that by every measure Neil Gorsuch is a conservative. Do you want to elaborate what you mean by that, why you think that his record is so clearly pretty far to the right?

[JB] It is and let's just take him in comparison for example to Anthony Kennedy. One of the justices for whom he had worked as a young law clerk. Neil Gorsuch adopts the reasoning of the late Justice Scalia to go back when deciding a constitutional case and look at the document as it was understood in its 18th Century framing. He is an originalist, as the expression is; he also is a textualist who wants to look at the plain words of a statute. Both of those methodologies tend to result in very narrow rulings of constitutional rights and civil liberties. Everything that he has written has obviously satisfied President Trump and his forces that he will rule for example, against abortion, that he will be a very conservative jurist. And that he will not as for example, Chief Justice John Roberts did swing to the left on issues like Obamacare or as Justice Kennedy has done on race and sexual orientation move over to the left.

[EC] I was struck to see places like the National Review and individuals like Ted Cruz so effusively praising Neil Gorsuch. I think that tells us something which confirms what you're saying about his ideology. I worry that the discussion about originalism is going to be too abstract that to say originalism means that a constitutional provision is understood in the context it's time is fairly abstract. Even to say that originalism is all about a constitutional vision means the same thing today when it was adopted, it was abstract. But we've got to remember that Robert Bork was denied confirmation in 1987 precisely because he claimed to be an originalist. And originalism means things like there's no protection of privacy under the Constitution including reproductive autonomy because it’s not mentioned in the Constitution. There's no protection under the Constitution for – against sex discrimination but there’s discrimination against gays and lesbians because it wasn't part of what the Framers of the Constitution intended. There would certainly be no protection for marriage equality under the Constitution that somebody is truly an originalist, the Bill of Rights would not apply to state local governments. State and local governments could execute people without council, state and local governments could declare official religions. And so, I think the question is: is there any way to explain to people how radical originalism is and what a dramatic change it would be in constitutional law.

[JB] I think Democrats are trying to do that. They recall that when Robert Bork was nominated back in 1987, that Ted Kennedy took to the Senate floor: Democrat from Massachusetts and said if Robert Bork is confirmed we will return to an era of segregated lunch counters, back alley abortions, rogue police barging down the doors. Now there's no one in the Senate who would do such a thing and didn't do such a thing last week when Neil Gorsuch’s name came up. But, several senators and their civil rights allies are trying to bring this down to human terms. What will this do for aggrieved consumers? What would his jurisprudence do for injured workers? What would his jurisprudence do for women fighting restrictions on abortion? And that's what they have to do and I have noticed that critics of Judge Gorsuch are trying to appeal to the populous sentiment out there: talking about consumer issues, talking about how his reasoning could affect people in their daily lives.

[EC] Do you have examples from when he was on the Tenth Circuit that you think the Democrats are likely to point to so as to show his conservatism?

[JB] Well I think what they would point to is his understanding of deference to federal agencies Neil Gorsuch would go further than most of our current Supreme Court justices in saying that judges should not defer to federal regulators. For example, in environmental or consumer matters. For any of our law professor listeners, it's what's known as Chevron Doctrine but there's no way that critics of Judge Gorsuch should invoke the phrase Chevron Doctrine. But what it means bottom line is just the latitude that federal regulators have to protect consumers to protect environmental interests.

[EC] I'm skeptical that Judge Gorsuch’s position on deference to agencies or what's called Chevron Deference is likely to resonate with many of the senators let alone the public. I think some of it is, again, it seems so abstract. It's one thing we say that Gorsuch’s philosophy means he'd be a vote to overrule Roe v. Wade or to say the Gorsuch’s philosophy is he doesn't believe that women are protected from discrimination by the Constitution. When you talk about how much did the courts differ to agencies in interpreting the statutes that create the agencies, hard for people who relate to it, and there's also a double edged sword for Democrats because I think now with the Trump administrative agencies, less deference to them might be a good thing. On the other hand, what concerns me most about Gorsuch is a federal court of appeals judge saying this long standing Supreme Court precedent should be over ruled is what it says but his views about precedent and that could matter in areas like abortion, affirmative action, the exclusionary rule, and some of the others.

[JB] That's right and I'll tell you one other thing that in intrigues me about him which is why I think an element of his background that I think Donald Trump and his advisers were drawn to is that he would challenge precedent. Many Supreme Court justices themselves and probably most of the men and women that were on Donald Trump's list of 21 are not so bold to say let us reconsider this precedent but Neil Gorsuch has. And Neil Gorsuch has written an important book on euthanasia and assisted suicide advocating against those practices but also talking about the sanctity of human life. I think again that probably drew Donald Trump to him because he's a thinker an intellectual conservative as Justice Scalia was but it also means that he will likely be bolder perhaps like Robert Bork in what he wants to do on the Supreme Court.

[EC] And I think the question will be: can the senators convey that to the American people or for that matter can the public interest groups that are opposing Gorsuch convey that to the senators? You wrote a terrific piece in which you likened Gorsuch to Roberts in terms of their backgrounds. One of the things that jumps out at me in thinking about Gorsuch and Roberts and Alito is how very much they were conservative relatively early in life. All of them were conservative activists when they were in college. They were known in law school as being conservative; they’ve been conservative their whole career, which, to me makes it highly unlikely that they can be any different on the bench than they've been for the rest of their lives.

[JB] Yes. I don't think we're dealing with someone like David Souter here. The infamous to some conservatives appointee of George H.W. Bush in 1990 who turned out to be quite the liberal. I've always said that John Roberts was hard wired from birth for success and for conservatism and when I watched the roll out of Neil Gorsuch, there were so many elements in his past, his writings, his academic credentials, and that air of success about him that reminded me so much of Chief Justice Roberts. I don't think and – but one way I will stop on the comparison is that Chief Justice Roberts as the man who's court informally bears his name has had a little bit more of an institutional interest in some cases, most notably the challenge to President Obama's health care overhaul that he would move a little bit to the left. I do not see Neil Gorsuch moving to the left given what we know of his record now.

[EC] And the reason this is important is, there's a lot of talk especially by Republicans that you can't really know what somebody is going to be on the Supreme Court; people change. I think that there’ve been instances like David Souter or John Paul Stevens or even Anthony Kennedy has changed but none of them had the lifelong conservatism that you see in Samuel Alito or John Roberts or now Neil Gorsuch. This is who they were in college and in law school and in practice and that's what he’s going to be on the bench. Now I've been looking at his opinions and if you look at his opinions with regard to reproductive freedom or religious freedom, separation of church and state, civil rights case involving employment discrimination, excessive force by police, overall he's very much on the conservative side. The question that I think is what do the Democrats do about it? The Republicans have already said that they'd consider the so-called nuclear option eliminating the filibuster if the Democrats filibuster. Donald Trump has said the Republicans should do the nuclear option and eliminate the filibuster. Where does that leave the Democrats now?

[JB] Democrats have to think of this in terms of a two-parter. What do they do right now? Will they win? Unlikely but even if they're not going to win do they still do it because of the memory of Merrick Garland? But then, they also have to think about what comes next. In probably a year or 18 months, there will be a second retirement from the Supreme Court, likely Anthony Kennedy. He has certainly, at age 80, felt like he wanted to step down. It's still uncertain whether he will but between Justice Kennedy at age 80 in Ruth Bader Ginsburg who's turning 84 next month, there's a strong chance that in Donald Trump's first term there will be a second opening. And what Democrats are thinking about right now is the consequences of that second opening which will then shift the court much further to the right. The removal of Anthony Kennedy will certainly throw into doubt abortion rights, racial affirmative action, protections for same sex marriage, and many other social issues. So right now, the question is how much force do they show and I know that there is a very strong argument among Democrats that even if they can – even if they're going to lose this fight, even if the Republicans will block their filibuster with a change in rules which the Republicans can because they hold the majority. It is worth it to show the force and to say we are not going to take what happened Merrick Garland lying down.

[EC] And Democrats need to remember there were 48 votes against Clarence Thomas and there are 42 votes against Samuel Alito. The Democrats could have filibustered and blocked either or both of them and the Democrats have to regard as a mistake not having black Clarence Thomas not having Black Samuel Alito. So do they now say in light of that it's worth trying to block Gorsuch by filibuster even if it means the filibuster gets eliminated Republicans? The other concern would be: if the Democrats don't filibuster now thinking it's the next nomination that could really change the ideological balance. Isn't there just as much risk then? If they go to filibuster whoever that is that the Republicans could still eliminate the filibuster then? So what do they lose by filibustering now?

[JB] Well don't they lose something politically though, Erwin? And this would be a question that you would be closer to than I am because you work with the progressive of crowd and you know about their concerns about the 2018 elections and what kind of message is conveyed to the public. If it's going to be a losing battle and the math just put it that way – that it probably will be – does it cost them to put it out now rather than wait till the second one?

[EC] I don't think anyone can know because there's no way to assess what Trump’s popularity is going to be a year and a half from now compared to now. This presidency is so different from any other in American history. The Democrats might think that if they were to filibuster now, there would be the nuclear option. But if they wait a year and a half if the Trump presidency is even more embattled maybe then Republicans wouldn't use the nuclear option. But all of that speculating; there's no way for anybody to have a sense of what's likely to happen a year and a half from now even assuming Kennedy were to step down then.

[JB] That's right and I know that the civil rights allies to the Democrats in the Senate would like to have a warning shot even if it's not going to mean success all the way around. A warning shot for the next seat and who President Trump would choose for that one.

[EC] To what extent is it just a political calculation by the Democrats as you're alluding to or to what extent is it really about their judgment of Gorsuch’s record? Or is that too unrelated to separate?

[JB] I think it's a more of a political calculation I think that Neil Gorsuch is exactly as he appears. I don't think there's anything hidden here. The only thing that would be hidden would be if he were somehow moderate underneath that very conservative facade and I don't think that's what they're dealing with here. If President Trump had chosen someone for example like Thomas Hardiman who apparently was a finalist, whose record was more incomplete, who showed himself perhaps to be more of an unknown quantity like a David Souter, the Democrats would have a different calculation. But I think what the Democrats have to know is that this man will definitely vote the way Antonin Scalia did and perhaps even be more effective in persuading his colleagues because he will not be as combative as Antonin Scalia was.

[EC] I've met him several times. He's unfailingly affable. I think one of the things I remember with regard to Robert Bork is that Bork came across as very arrogant and even imperious at the hearings. Gorsuch isn't going to come off that way. He's going to come off the way John Roberts did at the hearing. Incredibly smart and knowledgeable even with more warmth, I think, than Roberts came across at the hearing, which I think, makes it a harder obstacle for the Democrats to be able to rally support against Gorsuch compared to Bork in the Democratic Senate when Bork was being considered.

[JB] That's right and the other thing I would mention is that this man is 49 years old. He will not only be our youngest justice when he comes on but he will be the youngest appointee since Clarence Thomas back in 1991. So you've got someone who will not only affect the law for our generation but for our children's generation.

[EC] Or to put it another way: if he remains on the Supreme Court until he's 90 years old which is the age which Justice Stevens stepped down, he will be a justice for 41 years. And if I'm doing my math right that means until the year 2058 which means I think for both of us for the rest of our lives he will be on the Supreme Court. The stakes are so great here the question is what can the Democrats do about it in light of all the things that we're talking about? Do you have a prediction of how this can all play out or is it too soon?

[JB] I think this would be my guess. I think that the Democrats will try to delay the hearings, not hold them immediately to at least satisfy themselves that they have looked deeply enough into his record. He has been on the lower court for more than a decade. I think they need some time to go through his opinions, go through his speeches. He is out there on the stump a lot. As I said, he's written a book and he’s quite prolific but I think in the end he gets on and the first Monday in October Neal Gorsuch is sitting at the far end of one side of the bench and everybody's on tenterhooks about what Anthony Kennedy will do next.

[EC] In terms of each part of your prediction, I think the Democrats are going to try to delay so that Neil Gorsuch isn't on the bench this term. I think that they want to delay so there’s time for the review. I think the interesting question would be whether the Democrats can delay. The Republicans as the majority party get to control that. There's always been a tradition in the Senate of deferring to the minority party but we've already seen that breaking down that there's a tradition of not voting on nominees in committee but somebody from the opposing party being there. Last week, the Republicans went and held hearings with no Democrats being present and were priding themselves on doing that. With regard to the Democrats, I think that you got the question: can they keep 40 votes for a filibuster – 41 votes. They can have seven Democrats not join the filibuster but still filibuster and I can imagine some of the Democrats from red states were facing re-election in 2018 not filibustering. What will the others of them do? Then you get to the question of: if the Democrats filibuster will the Republicans really use the nuclear option? The Democrats did that for lower federal court judges and for Cabinet appointees. Well the Republicans say, well you've done it there we can do it here. In the end I think I come to your prediction one way or another Neil Gorsuch ends up on the Supreme Court.

[JB] One final thought about Gorsuch’s role in this as we know his first move after being nominated was to call Merrick Garland and he certainly wanted to make sure that became public that he called Merrick Garland. I wonder if you also tries to defuse some of the tensions by saying there's no need to have a hearing right away in March; let's put it to April or May. He and his backers might try to diffuse the tensions especially in light of what's going on right now over Donald Trump's refugee policy.

[EC] I could imagine Gorsuch saying that. On the other hand I could also imagine that not being for Gorsuch to determine that I would imagine Senate Republicans are going to decide when there's going to be the hearing and they – little indication of wanting to be conciliatory towards the Democrats. I mean one of the things that implicitly said is Neil Gorsuch was not a conciliatory pick. Donald Trump could have decided to pick somebody much more moderate from his list as we were looking to hear who Trump would nominate, I read the opinions of Thomas Hardiman that you mentioned and William Pryor and Neil Gorsuch and I concluded that Hardiman was the pick. I at least personally would not oppose him. I didn't think civil rights groups would oppose him because well he's right of center. He is much more moderate. Gorsuch like Pryor is much farther to the right that's why the National Review and Ted Cruz are so praising of his nomination.

[JB] That's true but let's think of another element that we got with this nomination that hasn't held true in most of other actions by Donald Trump. This was the most establishment Republican move he's made in the last what 15-20 days you know. And I think that whoever advised him on this, who steered him away from for example Judge Pryor from Alabama who would have been much more contentious for Democrats and for liberals is at least trying to defuse the tensions around this one. You're absolutely right about his record but if they can cordon this off in some way through the advice that he would be getting from Gorsuch supporters it will certainly help the nomination of this man.

[EC] I think that's right. I think that for Pryor his having made statements like Roe v. Wade is an abomination. It would have made it much easier for the Democrats to filibuster because the Democrats would have had a statement that could be a sound bite. The difficulty with what Gorsuch has done is it takes more elaboration. As we started by saying, it's hard to explain to people why originalism with such a dramatic change and what originalism would mean in their lives. As I said, I don't think Chevron deference is going to matter to the senators let alone to the American people. But I think we both come to the conclusion it's going to be very hard for the Democrats with only 48 votes in the Senate to keep Neil Gorsuch in being on the United States Supreme Court.

[JB] Yes and my final thought would be that this sort of transition period for the Supreme Court is likely to extend for two or three more years. We're beyond what we had in the 1990’s when we went a full 11 years without a vacancy and the kind of turmoil we're seeing today. From February 13 of 2016 perhaps to sometime in 2018 this nine men member bench is likely to be in flux.

[EC] And it's always worth noting that since 1960’s, 78 years old is the average age of when a Supreme Court justice left the bench. Ruth Badger Ginsburg will be 84 in March. Anthony Kennedy will be 81 in July. Stephen Breyer will be 79 in August. How likely is it that all three of them will still be on the bench on January 20 2021, assuming Donald Trump is a one term president? You're mentioning rumors about whether Anthony Kennedy will step down at the end of next term. Does the question about how long Ruth Badger Ginsburg's health and stamina allow her to be on the court and then you have the possibility of Donald Trump making not just this but maybe a couple more picks for the Supreme Court. Maybe the place to leave this is remembering that this is the court not just for next year the Trump presidency but for decades to come.

[JB] That's right.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.