Transcripts For CSPAN2 Trump Administration And The Future Of The Supreme Court 20170517

Appellate attorney here in town. I welcome you to the circuitit conference. Since we last met in chicago in 2016, a lot has happened if you havent noticed. We have a new president and more recently a new Supreme Court justice. What does the combination of events mean for the future . That is what we will be addressing today. Theres lots to discuss. We have four experts to help us sort things out. The resumes are long and their accomplishments are many as a result so as to leave as much time for the discussion isas poi possible. First we have tim bishop and appellate lawyer in chicago and he clerked for William Brennan justice of the Supreme Court. Next to him, kerry is the chiefa counsel dedicated to the rule of law with the fair judiciary. As the clerk to Justice Clarence thomas next to her we have thera member of the Supreme Court appellate practice clerk who clerked for Justice Roberts and finally last but not least. The professor of law at Indiana University in bloomington served as a clerk on the seventh Circuit Court of appeals. Each has a topic or two relevant to President Trumping future of the Supreme Court. I would ask that each speak in order that interests them for ten or 12 minutes time per permitting i will then ask for any reaction they have to the presentation and then finall fie go to you, the audience for questions. We have a new justice that has been there for three weeks. What we have to go on so far is his participation during the session. He didnt have time to prepare for these and its differentt being on the Supreme Court withn other justices rather than on a panel of three in the tenth circuit nevertheless we can learn a few things about his approach to judging what weve seen so far. The first argument was also the most active oral argument and shows the language very quickly coming to the floor. It involved mixed claims to and federal antidiscrimination claims to. They are viewed by the federal circuit and the decisions are made in the court. What happens when you have a mixed claim . E years after the ct complaint. Gorsuch, why should we follow the plain language and understanding of the term action . Congress could have said claims instead. That is what you are saying. The opt out action bringing the same claims that separate actions. I mean i dont like the policy consequence. I dont like the policy consequence but as a matter of plain language language we say is a new action. Probably the most publicity goes to the case where missouri has a scheme whereby it will fund, provide funds to build soft playground surfaces for any entity where you have to apply the ground. Anyone can apply except churches and other religious entities and the missouri constitution seeks to acquire that result. The question is is that exclusion of violation of the protection clause . Justice gorsuch as very few questions. He really just made a statement and remarks in the tenth circuit he frequently would dress up his questions and his statement in question warm. He wasnt shy about giving his view of the case and arguing with the other judges through these rhetorical questions. Thats what he did here. Missouri has argued that it makes a difference if its an elected program and not an automatic one and gorsuch says hell is discrimination any less if its a Selective Program collects data we tell the difference . One could play with that line forever. You see a theme running through the plain language. Once you depart from the plain language then you have to make up where those lines are connected a difficult and create uncertainty. Here is his bright line to discrimination on the basis of status of religion. There is no line drawing problem there. We know thats what happened in this case. Counsel of missouri we do know that decision was made because it was a church and i suspect that answer probably resolves Justice Gorsuchs view of that case. I want to talk about something here that gorsuch said in the third conference right after these arguments. When i was in the sector i had no trouble getting out in a question i wanted to get out. It was always easy with the three of us but in the roughandtumble of the Supreme Court thats not the case that you have to develop techniques to ensure that you get your question in. He said we could see this running through the argument for this session. He said he discovered interesting counsel before council finishes answering the last question will let him get his question and before the next interaction so well have to see if Justice Kagan make sure she gets her questions then. Bristolmyers squibb professional jurisdiction showed a lot of interest in postjurisdiction cases. California purported to exercise jurisdiction over not just the claims of californians against a noncalifornia manufacturer of drugs and Bristol Myer Squibb and the drug is taxil. It also has jurisdiction over the claims against the noncalifornia defended that noncalifornia purchases. The very active arguments most of the questions are practical ones about what it means to send these cases in one place but when we get to gorsuch asking the assistant solicitor general we talked about predictability but we havent talked about federalism. We know that this is another one of gorsuchs interest, preserving our federalist system. I was hoping you might give us a couple of words about what the implications are for the interest to say oh hi zero in administering its own procedures with respect to its own citizens that occur in its own state. Here are my concerns. What does it do to a high of sovereignty when qalat or new grads cases of folks who use paxil in ohio and taking jurisdiction over these . Plain language federalism bright lines. The question may be of interest. 105 questions with three counsel here. That is typical and its usually , the arguments usually get to train 15 and 16 questions very rapid. When you are preparing for argument of the Supreme Court i focus on trying to think about what questions will be asked in getting those answers down to one or two sentences because you know thats all you are going to get out before you are interrupted. Look at the breakdown, liberal conservative here. The liberals between them are 73 questions in the conservatives asked 32. The most active conservative question asked fewer questions with the least active liberal question. I think what you see since scalias death this is fairly typical but varies casebycase depending on the interest in the cases but sotomayor and are clearly the most active questions. We will see if gorsuch changes that. The last one in my favor case. I dont know how to pronounce it this is a naturalized citizen case that got a lot of publicity in the press last week and youll see why. The question presented is may and naturalized citizen be stripped of their citizenship in a criminal proceeding based on a false statement that isnt material to the question of whether they would have received citizenship or not . Does the lie had to be something that was known about them getting naturalization . There was little sympathy for the petitioner in this case and i think all of the justices thought this was a missed material misstatement that she made. On a refugee application she said that her husband was trying to avoid military inscription in the bosnianserb forces and in fact it turned out he was in the bosnian serb forces serving in a unit that was committing atrocities in schirippa nikka. Will the government have to prove that and if they do they have to prove materiality. Nevertheless it does look like shes going to win on materiality question when the government has to prove that. Justices across the spectrum were concerned that without a materiality requirement the u. S. Could strip citizenship or trivial misstatements. And naturalization application formats have you ever committed assisted in committing or attempted to commit a crime or offense for which you were not arrested . Think about that everyone. Chief Justice Roberts could think of one. Some time ago outside the statute of limitations i drove 60 miles an hour in a 55mile an hour zone. I was not arrested. Are you telling me 20 years later after i naturalized citizen you can strip me of my citizenship . And it went downhill from there for the assistant u. S. Attorney. Roberts said it could be up prosecutorial mistake. Anyone could have their citizenship naturalized and its up to the prosecutor to pick and choose who gets the naturalized and who doesnt. Kennedy is angry. Your argument is demeaning the priceless value of citizenship. You were here arguing for the United States. So there is a lot of heat in this case. Gorsuch does not get engaged in anything. His questions focus almost entirely on one thing at a criminal statute have two results. The first makes it a crime to procure naturalization contrary to law and makes it a crime to knowingly procure naturalization history of the statute is getting naturalization encompasses materiality. That seems to be a requiring connection between the lie and the entitlement where is a which is what the petition here was prosecuted on does not. Its contrary to law. In addition he says quote civil statutes do have materiality in them but the criminal once dont so we would have to add the word material to section 2045 silly its gives a soft ball answer. B would be if you are not entitled to begin with an a is if you were entitled to live in the process. The contrast here is very stark between chief Justice Roberts and Justice Kennedy who are infuriated by the governments arguments in this case. Justice gorsuch who doesnt talk about any of those components or what roberts called the extraordinary Unlimited Power to lack of materiality. Instead hes focused on the statute for language so i will finish their and turned over to carrie. My observation with these arguments suggest is that President Trump got in Justice Gorsuch someone who follows the statutory language, follows federalist principles, looks at bright lines above all else. Thank you. [applause] c thank you very much tim. I want to talk a little bit about the nomination process for Justice Gorsuch and what we have learned about that and how thats going to impact potential future vacancies on the court as well. We are have obviously got a great review of his oral arguments thus far. Unfortunately its a small sample but its what we have to go on for now. First what we learned from this past confirmation process. I think the first lesson that we learned and i think this is one of President Trump recently reiterated is that the success of his strategy of having an actual list of names to choose from. This is maybe the first president ial election process and memory where the Supreme Court was a major issue, the type of major issue that it was. We saw one if the voters coming back exit poll saying this is their number one issue in the reason i went to the polls. Those voters chose decidedly President Trump editing part of the reason there was so many voters driven to trump was because of that list. There were a lot of people who werent sure of where he was on various different policies but they understood his approach to appointing Supreme Court justices and tim pointed out he did appoint a justice who did what he suggested they would do. Its easy in the past for president ial nominees to simply say i will appoint someone to the Supreme Court who loves the constitution love salon leave it at that but as theyll no theres a wide wide variation in judicial philosophies and what he means by that and it makes a difference in the outcome of many cases. Knowing a little more meat on the bones of what did he mean by appointing someone. As a someone has a team in place that knows how to identify justice and having concrete names allows people to make the judgment call themselves. It appears many people said yes and i think Justice Gorsuch did come up a summary of carried on. Its an increased level of transparency that we havent seen in previous systems where he talked about who he talked to to come up with that list and we also have an idea Going Forward because each is recently said he is planning on drawing from the next Supreme Court vacancy from that so it gives us a lot more understanding of what that is. This is one of the most important decisions the president is going to make and as we can all see from the aftermath of this last election president obamas executive orders have been largely scrapped. His legislative accomplishment as already on the chopping block theyre certainly going to attempt to but just to sotomayor inJustice Kagan are going to down the court for decades so this i think is something that deserves to get more play in the Supreme Court and the president ial nominations and hopefully will Going Forward with this precedent being set. The success of Justice Gorsuchs confirmation process is going to play into the dynamics for the next confirmation. As we all know the stakes are presumably going to be higher simply because theyre not replacing Justice Scalia with someone by a republican president mainly Justice Kennedy, justice ginsburg, Justice Breyer but someone who republican chooses is presumably going to have more impact on the court. As i will talk about intimate outthink the confirmation of Justice Gorsuch will ultimately have a great impact on the court when you compared with the alternative that would have had a huge impact but to compare with the likely nominee of either obama or Clinton Presidency then you can see theres a huge contrast but comparing contrasting what we have with Justice Scalia and gorsuch isnt going to be a good contrast. The stakes next time we assume all shift the court depending on who they are replacing. Trump himself, President Trump has learned the confirmation of Justice Gorsuchs good strategy for him. Both regarded that as one of the most successful initiatives ps taken so part of the reason museum saying yes. That works really well for me and going back to the same kind of teammate has someplace to shepherd that confirmation process through. Similarly the g. O. P. Senate thought it was a real success. Mitch mcconnell who often gets raked over the coals by conservatives for teen too much of a push that kudos for that and well deserved. I think we also will seek gorsuch, he has only had one sitting so you may get one maybe two. I think thats likely going to confirm for the American People as well that it was a good choice. He is thoughtful. He has shown himself to be up to the challenge even having him a week to prepare for first oral arguments. He is obviously someone who is so wellqualified is up to it. Contrary to a lot of the redder beforehand the sky is unlikely to fall. There were not a great number of highly controversial cases but the one controversial case that people talked about his duluth in case more likely to go 63 or even 72 inJustice Kagan and maybe even Justice Breyer joining the majority in upholding religious freedom in the case. It will be hard for the left to paint death as a conservative blowout when i think what well see is probably a bunch of cases many of which arent going to get anyone terribly excited. For the democrats its going to be challenging because there is not a judicial filibuster anymore so that threat is out there and i think, i was a big fan of Justice Gorsuch all along so this comes from my perspective but i think he is so well qualified and had arrived by persons support the level of obstruction hurts their credibility for future nominees. Its going to be harder for them to make a case that each nominee is going to beat into the world when frankly Justice Gorsuch that was what pushed a lot of republican g. O. P. Members who didnt want to change the rules to do so. They are criticizing this guy who is unimpeachable they will vote against anyone on a partisan basis. We will see if he appoints someone who has the capacity to ignite the left prevent a lot of opposition. In terms of gorsuchs impact on the court the short ones will be minimal when you compare with Justice Scalia and more or less back to where we were a little over a year ago before Justice Scalia passed away. Also for context as a reminder when you look at the statistics we think the Supreme Court is being devices and all the big ones we hear about seem like its a huge ideological battle. Reality 40 of the cases each term are generally unanimous in terms of ever getting on the same page. Upward of a quarter of them in last two terms have been 100 unanimous. There is likely to be little impact in the 54 cases that do happen and dont happen at many cases looking at the last few terms. Last term error are for more that were hung juries after scalia died. These 54 decisions, thats not a gigantic number. When you think those would have fallen on ideological terms. A lot of them dont fall along those ideological lines. There were 1954 cases in six of those were totally split so you wouldnt have necessarily predicted. The Previous Term there were 10 and six of them were drawn on ideological lines in four some of these cases dont come down to what we might think of as ideological split. There is going to be hard to predict but of course the few that are we will maybe see them voting in those cases along the lines of where we did the with Justice Scalia. The impact in terms of the Current Issues are likely to be the most impacted the one issue we see is a contrast between gorsuch and scalia is administrator deference to those are some cases that have come up before the court and youve seen that port chipping away at in the past few terms. Chevron deference called out and criticize and has gotten a lot of criticism particularly from the justices but scholars across the ideological spectrum having issues where it violated the administrative procedures act and constitutionality because you are allowing an agency chief take on the legislative powers or judicial powers in determining what the law is. In recent terms the court chipping away in which an agency is allowed to interpret its own regulations. You have the same person writing the rule as determining the role and that becomes problematic. The court has pushed back on that in some cases a lot of people saw wild Justice Scalia was in court someone who is not a fan of deference or originally was but i think he was changing his position during his career but he was certain his say hey this case is crazy. Maybe me to push back on it even though was one of the champions in the beginning. Some things we dont fully know or what is his willingness to overrule cases. Thats something thats hard to predict on the lower court. It will be interesting to watch the personal dynamic. Obviously his dynamics with kennedy and the clerk of his and the oral arguments. There justices would do the arguing through so well get to see that. A future issue coming up well have some people talking about the outstanding issue of executive authority and well see the immigration action by trump coming up and a Little Sisters case is technically outstanding. The 2nd amendment case perhaps. I dont know where this will happen in terms of administrative issues but that will be interesting to see. With that i will hand it over. [applause] thank you all for having me here today. I would like to talk a little bit this morning about the Supreme Courts docket and talking a little bit about the past year but really focusing on what kind of trends and dynamics we might expect to see with the new Supreme Court and the Trump Administration and play, not in office. My basic theme in my basic expectation is in terms of the courts of standard dock and in particular its resolution of the big cases that the whole country cares about the most i think we are going to go from famine to feast. The last year, think its fair to characterize it as a relatively slow term not very exciting in terms of the cases at least that i have a feeling in light of the new administration of the new justice that things are going to pick up pretty quickly end a year or so from now we are going to be seeing bigger cases coming through the court making big momentous decisions in a number of areas. Lets just start with the past year or so. We have all seen tune main storylines from the Supreme Court. At one level you have a series of big dramatic historic level developments. Justice scalias passing and senator mcconnell strategy and push in dealing with the vacancy , the nomination of justice garland and the nomination of President Trump and the nomination of Justice Gorsuch. Thats the first storyline and you got that going on but in the level of individual cases its been a pretty slow relatively low key term. Seems like it is hard to speculate looking at what cases they have taken and how they resolve them. This seems like there has been an effort to dial down the temperature at the court and manage this transition period carefully try to find consensus, tried to decide issues relatively narrowly and in terms of the cases the court is taking maybe take a slightly disproportionate share of more tech to cases that arent going to generate harsh ideological disputes or divisions. One way to look at that is to look at the cases that have been actually decided since Justice Scalias passing and byebye my back of the envelope count their 90 or so of those in whats striking is 50 of them and maybe after this morning higher than 50 of them were decided unanimously by a 71 margin. A huge percentage of the cases that have been resolved by the courts and Justice Scalia assessing where almost all of the justices are lining up and coming out the same way. By contrast of those 90 or so decisions only about 10 or 12 of the decisions have been decided along ideological lines with the clinton and obama justices voting one way and Justice Thomas Justice Alito and the chief justice voting the other way so i think thats a sign that the court has been trying to avoid those disputes. Im counting those cases the court cases that were not cited last year. This term is not had a ton of cases. I think there are less than 65 that were set for argument this year. They were very slow in deciding what cases to resolve. A lot of people thought they would be in the 50s for the first time in a long time. A lot of blockbuster cases this term. A couple of my colleagues on the panel have talked about the lutheran case which is probably the biggest case of the term but even that one wasnt at the same level as abortion or affirmative action or obamacare or immigrations of the issues that come up in previous years. More anecdotally i just left the Solicitor Generals Office where ive been for four terms. You could see the kinds of cases the solicitor general himself personally get involved in. One of the nice things about being a solicitor general is the United States participates in so many cases you get to argue a lot of cases in the Supreme Court yourself and you get to cherrypick fun and cases. Usually the solicitor general argues seven cases of term. This term the three acting solicitor generals across the administrations have argued a total of three cases. I think ever but the fact that there was a lot of sg worthy material on the docket to choose from. In terms of this past term its been relatively slow. That said i think things are going to pick up. We have a new president who is doing a lot of things which seem to be generating a lot of attention at the new solicitor general who may take a new approach or a new administration you may use the sgs office to take a more aggressive approach. I want to highlight what i think are maybe core dynamics that im looking at and i think might shape how the courts docket involves Going Forward. The first dynamic is the relationship in the Supreme Court, the courts of appeal and the executive branch acting through the Solicitor Generals Office. I think the upshot of the dynamic between those three entities is that their morning morning maybe more petitions coming from the government to the Supreme Court in the courts docket like modestly increase as a result of that. This seems to be the first time in a very long time where new president has come into office and has been philosophically. Tightly aligned with the current justices of the Supreme Court but where both the president and the Supreme Court ideologically seemed to be in a different place for most of the courts of appeals. Right now democratic appointees control nine of the 13 courts of appeals and they have large majorities more than twice as many democratic appointees and republican appointees on five courts of appeals. There a number of judicial vacancies but even if resident trump even if he were to fill them tomorrow but democratic appointees would have control of eight of the 13 courts. What this means if you are sitting in the solicitor generals essay were sitting in the White House Counsels Office you are going to be seeing a fair number of cases coming out of the courts of appeal that you disagree with. When you look down the street to the Supreme Court you are going to see friendly faces. Youre going to see Justice Gorsuch Justice Alito Justice Thomas for chief justice and Justice Kennedy who although he is in the middle tends to side with conservative justices 65 of the time. I think that dynamic in the fact that they are going to be decisions coming out of the courts of appeals the Administration May have disagreement and the possibility that the Supreme Court will be friendlier to the administration i think that might be a more aggressive posture in the certiorari stage from the government. I want to note in recent years the government filed only 15 to 20 petitions a year. Thats a very low number if you look at it in its Historical Context and you go back to the reagan and bush the First Bush Administration they were filing somewhere between 30 and 50 petitions here. The Clinton Administration filed 30 petitions a year and 2230 petitions filed in the first george w. Bush term. I think its possibly see the sgs office go back to those, maybe not all the way to those levels but you will see an uptick in positions. Thats dynamic number one. Been in and dynamic number two theres an interesting set of cases you might think of them as the switch over to whiplash cases. These are cases that were initiated against the government when the Obama Administration was in charge. Now the Trump Administration has inherited them but the Trump Administration may be switching positions. Transgender students to the Supreme Court granted review on the issue and then when the administration came in and withdrew that interpretation that court to send the case back to the circuit to take another look. I think that case could come back without the administrative supports the obama position that could come back to the court. There is another case thats going to be argued in a couple weeks that involves the constitutionality of the structure for the Consumer Financial Protection Bureau and whether it is the structure and has authority is consistent with the constitution the panel on the dc circuit held that the director had too much power because it couldnt be removed by the president at will and he hadnt checked or balanced by any other fellow commissioners the way the independent agency heads are, so the circuit vacated the decision and if you look at the dc circuit its not crazy to think that a. They said that the director is not constitutionally structured and so that will be one in which we know already. Theres a number of cases which the house of representatives sued the executive branch of the department of health and Human Services alleging the executive branch is making if of payments to Insurance Companies under the Affordable Care act in which payments havent been authorized by appropriations in congress. This is a big battle between the house and Obama Administration and now it is not clear how that is going to be resolved. There is a bunch of cases out there and a couple more of them as well. Those that will be significant is the conservative litigants will have a headwind to try to start pushing the key issues. Those i will throw out very briefly that are likely to be near the top of the agenda are union dues, the Supreme Courtcoe court last year seemed to be on the verge of holding the First Amendment violation for the Public Sector unions to require the nonmembers of the union to pay fees to pay for the collective bargaining efforts and the oral argument suggested that it would be a 5for decision saying they couldnt force people that are not members to pay their seats but then Justice Scalia past and it is an issue likely to come up. They asked the court to address the question of whether and when it carries weapons so those are two examples but that will be the case in a variety of areas mentioned and finally, i think you are going to see a very strong set of challenges that our going to reach the Supreme Court that come from the progressives that are very unhappy with the Trump Administration on policy grounds and the strong incentives with the attorney generals across the country to File Lawsuits and we are likely to see those by the conservative states litigating against the Obama Administration and the red states following suit and a blue state. Weve seen this already in recent years the states have become very savvy and effective and developing the Generals Office is. We are going to see a couple more cases that show the dynamic in i basically dont think im going out on a limb to show there is a lot of progressives out there in the progressive states and organizations that are going to try to put trump in the courtand the courts wheneveo something they disagree with so there is a good chance that a love that will bubble up to the court. I think that there will be conservatives following and i think progressives are going to try to shut down a lot of the initiatives in the administration. Thank you so much. [applause] weather event to talk about the particular cases, my background as an executive branch lawyer working with barack obama im going to talk about President Trump on the issues of executive power and judicial deference. And then second, some reactions on the appointment. There is so much to be said. I feel certain that we are thinking a great deal about the courts and i wont repeat the verbal attacks on the courts and the individual judges and Court Decisions rejecting some of his policies and for example the travel bans. They have 30 executive orders that surpass those two fdr president johnson was listing them all. The National Security threats posed by illegal immigration. They take a closer look at the statements for example relevant to the motive and meaning of. I want to suggest something they consider as a more general proposition. They have effectively forfeited the measure of the deference including through the extraordinary and unprecedented disdain for the rule of law. One, is trump exceptional in this regard and some have said how about president Andrew Jackson. So last week i happened to be at a talk by habana institute dannon institute. He authored a pulitzer prizewinning biographer and the biography of president george h. W. Bush. So he shared a story and i am going to do my best recollection to share with you President Trump is planning a trip in march to honor president Andrew Jackson wh whose portrait has hg in the oval office. So, he doesnt buy into the comparison and on occasion to the visit he wrote a letter in his paper that ran across the whole front page and he suggested ways in which trump might actually benefit from the following jacksons example. The day after the story ran, he got a phone call, worked at the phone and assault on number and actually knew he was in the hospital at the moment and was concerned. He sounded strong and said i read the open letter that you published a. He thanked him for the call that was a bit worried that he referenced to jackson and said thank you for the call that he gently corrected president bush and said i think you mean the letter that i wrote to trump. Bush didnt miss a beat and quickly replied i think jackson is more likely to read it. [laughter] back to the judicial deference, firstyear common law students learned over the years standards and the doctrine of deference. One oversimplification when we think about it is they accept when there is good reason. The difference is not appropriate when the Supreme Court decided a statutory classification precedes or infringes constitutional rights. The deference afforded the president s i would sub it depends on the plausibility of the belief that the president s decisions reflect the respect for the rule of law properly informed by the relevant advisors information in fact and or in the service of the public interest. In my view President Trump has eroded the plausibility of the belief and that is his own claim to deference. Going back to 1819 in everyones favorite case that the Supreme Court in 1819 famously gamed the authority to establish the National Bank and we must never forget it is a constitutional for the agents to come and be adapted to the crisis of the human affairs. Mcculloch also less known relied upon the consideration of the questions. And in its opening paragraph, the Court Reference to consideration and here i quote in the executive cabinets with as much persevering talent as any measure has ever experienced and being supported by arguments that convince the mind of pure as the country can boast. So the deference is based on the judgment guiding executive actions. The musical hamlet reminds us that the bureau of intelligence find referenced in the passage describes president washington asking his cabinet members for their constitutional assessment and hamilton stands out there and may recall that leads to the musical number in the tavern in which Alexander Hamilton and others talk about the constitutionality is in the ba bank. In modern times the attorney general established the council to advise the executive branch on the legality of the contemplated actions and to the responsibilities to take care of those that were executed. So i served as the acting head of the council under bill clinton when he was ahea the hef that office or the earlier administrations and as did Justice Scalia. This office when it is properly done helps to make the case for judicial deference in the executive decisions. You dont have Alexander Hamilton working it out although he does have a long and proud bipartisan position of legal advice and the president s know when it dictates to the incredible career and attorneys in the executive branch and the Solicitor Generals Office as well. So in other words, it is more susceptible to the pressure of the other differences as well. So much depends upon having a president set the right tone of the commitment to the rule of law as a kind of legal advice the president wants to hear. You may remember following 9 11, this is when many people first heard of the interpretation harmed when someone leaked the memoranda not in the tradition of the office on the interpretation that found the president could rely on the ability to order torture and those have been widely repeated. It returned in the tradition of accurate advice, but we saw, remember we saw the Supreme Court engaged very actively in reviewing the post9 11 Administration Actions for several years in the cases so what does this signify with regards to trump through his own actions he has substantially eroded the plausibility of the belief for the public oriented president ial decisions. It is about disrespect for the facts and at the time im going to skip over those but we have been following them and know them and i want to conclude with my few observations about the appointment to say that the reaction to the statement after the confirmation process that judges are not democrats or republicans, just judges so it shouldnt affect the responsibilities for the lawyers but if you show how the statement is incomplete at best, the refusal of the leadership in the senate to even consider is a travesty with multiple consequences, and it is particularly a problem because the continuation of the distortion that is in one ideological production. The last time the majority of the justices were appointed by the president was 1969. That is quite a fact. If it had ended in the confirmation that is an enormous difference from what we now have and that is a proper way to think about the result of the seat and the Bigger Picture to this followed decades long dramatic difference in the resources between that and the ideological left and right between democrats and republicans focusing on courts and judicial selection. They issued reports about the critical needs to appoint judges that have refused consistent with what president bush is looking for. Now i want to get a witness to this balance and that is the enormous amount, just one example of the disparity in the time spent on the last justified the network headed by my co panelist by quoting the expenditure of dark money from the campaigned nominee to the same court. There would be a comprehensive campaign of paid advertising and they would focus on the states where Senate Democrats are those where trump won by large margins and there would be 7 million let the people decide after a to confirm the next justice with joe donnelly and claire mccaskill. Any senator that signs up for the strategy will pay a heavy price. To conclude, i have been involved in the appointment of david is an inherent part of the process but having massive amounts of dark money overwhelmingly it is a dangerous imbalance and threatens the National Treasure of the independent judiciary. Thank you. [applause] i was wondering what caused the firearm, but the cause and effect are off and its only fair that i get the opportunity to respond to a. A. We have had the groups and the confirmation. I think having more information about these things it is clear that they had a chance to make their voices known about the vacancy on the court, and they clearly wanted the next president to not be terry beat hillary clinton. I was glad to see them agree to set the rule of law first and these are walls i can say for people we are advocating it should apply to both ends of the spectrum so i would say it should be the same whether it is democratic or republican. We have ten minutes for questions. Anybody . Wait for the microphone, please. My question is in light of what you just said, im wondering when in the term you believe that his right to fill vacancies on the Supreme Court will end because clearly with obama, people said he was three fifths of a president. But tell me when his ability to fill the seat will end because you have said that the american peoplto the americanpeople didny clinton to fill the seat but i dont remember. I made the vote when i voted for obama and youve also made it when you voted for the senator and thasenatorand that is an imf the process that gets forgotten. If there had been the seat i have no doubt in my mind but ric garland would be sitting on the seat right now when you look historically at the last time we had the confirmation its always when you have a president of the same party. We do have a check on the process and when you have the senate thats how we see them pushing back and forth on each other its the people wanting to put a check on the president. The people had another opportunity to reelect senators and the president in november and they chose differently. It wasnt a foregone conclusion when bush was in office and he wouldnt recommend a president to nominate anyone at that point whether one should they proceed to have the hearing and confirmation it was something that they did confidently and knowing if the tables had been turned, the same thing would have happened. We dont want to confirm any at this point which is what senator schumer seems to be doing a. The answer is trump gets to the point throughout the term even though president ial, did not. Frankly if it is a democratically controlled senate you may not see trump gets anyone confirmed and that is because of timing the timing, ts because the political backandforth. Its the vacancy at the same party historically what we see they do get confirmed and it has to do with the politics and the senate. I dont think you are answering the question as it was asked asked a. In the Justice Department in the 90s, strong bipartisan support, so the question is on the merits. Do we want this kind of an unprecedented to deny from the moment the vacancy occurred to the possibility of the hearing for president obamas nominee and they have the power to steal the seat but they didnt. It is a terrible practice, unprecedented and not one that id like to see repeated. We shouldnt be having this kind of dark money. It just means we dont know where the money is coming from with tens of millions of dollars to block a judicial nominee and then its just not the way we should be. Its not just the right thing but its not to block and choose judges this way and this was a new low for the nation. I have enormous respect for the Merrick Garland and he would be at the top of my list, too. They said they wouldve done the same thing. If this kind of tactic is now fair game. The tactic of essentially using your third in the senate to block nominations you think youre outside, thats for game. I know the most prominent leaders of the democratic party, then senator obama, senator clinton, senator biden, schumer, reid, all voted filibuster judge alito when he was nominated. In that context in which both sides seem to be resorting and invoking their Constitutional Authority to block appointments, seems like a not terribly surprising thing for the party that happens to have the kind of Senate Control when it does to assert that authority. Not to say there should be a broader solution that people can agree to a maybe we could make a deal Going Forward. But in the context we are it seems to me that its unfair o d ignorant and beyond the traditions that have evolved in the last ten or 15 years to somehow accuse the Trump Administration are senator mcconnell of theft of an appointment. The constitution does not belong to president obama alone but with the advice and consent of the senate. I have to point out there is an obvious difference between going to the process, giving the person hearing, going to the questions and answers, examining a persons record, the president youre describing is at the end of the deciding that on the merits of the persons views its not someone the senator wants the court and is going to filibuster. Yes, there is a precedent for that for sure. Its a clearly different thing than what shocked everyone i was unprecedented to not have a hearing in say, we will not consider any nominee. Thats just a different category and has taken this to a different lowlevel but i think its harmful to our process. I totally support the ability of senators, their right to decide to vote against a nominee based on the evaluation of if they want that person on the court. So i cannot equate the two. I have to disagree with the assertion that is unprecedented. We dont have a very large sample of Supreme Court confirmations historically but theres 36 nominees that have been not confirmed by the senate and two thirds were not confirmed simply because they are not voted on. Only one third were voted and rejected. So absolutely as he said the constitution lays out the senate has advice and consent. It does not say how they can do it. They didnt say there has to be a vote or not. Its advice and consent. The same principle that applies to executive appointments. If you look at that theres a larger body of evidence showing in many cases theres not action taken in the senate is 100 free to take that type of action in terms of giving advice and consent. One last quick question. A judge mentioned a district in wisconsin struck down the wisconsin legislatures redistricting based on excessive partisanship is somewhat of a novel or path raising decision now in the Supreme Court. I guess i was curious as to whether any of the panelists had comments about that issue . There is recently a redistricting decision out of wisconsin i believe judge was on the panel, and the question basically is whether anybody has thoughts about that decision redistricting cases in general. Partisanship districting. Part of the reason they were embracing partisanship is the reason for redistricting which for some reason the court thinks its great. The only great reason to redistrict. Interesting to see if theyll be pushed back on the. Unfortunately i havent either. 0162017 legislative session. This is an hour