Review of the major cases decided in the recently ended u. S. Supreme court term. The judicial nomination and confirmation process. After that, Federalist Society panelists will discuss this terms highprofile opinions. Hello. This is one of the chairs of the colorado federal society. My cochairs are on the wind today but you cannot see them on the screen. I want to thank everyone in our membership and in the audience for coming to todays wonderful presentation. This is one of our Flagship Events of the year. We are honored to have this panel to talk through the 2019 Supreme Court term with you. Im going to introduce our opening speaker then we will turn it over to our moderator who will then throw things off with the panel. We are looking forward to an interesting discussion today with a lot of diverse opinions. We are accepting questions in the q a box. If you have a question, you can open that box and submit a question at any time. We look forward to having a good number of questions. With that, let me open introduce our opening speaker. Assistant attorney general williams was confirmed by the u. S. Senate unanimously on august 21, 2017. She serves as the primary policy advisor to the attorney general. As the chief regulatory officer for the department. She graduated from Harvard College magna cum laude with a degree in history and literature. She earned her law degree from Harvard Law School where she served as executive editor of the journal of law. After graduation, she served as a law clerk. From 20052000 six, she served a special counsel to the u. S. Senate committee on the judiciary where she assisted with the confirmation of chief Justice Roberts and associate Justice Alito. Prior to becoming assistant attorney general, she was a litigation and appellate partner of a national law firm. Cases in federal and state courts across the country. She also served as chair of the womens Leadership Initiative in washington, d. C. She received a pro bono award seven years in a row. With that, i will turn it over to our opening speaker, assistant attorney general beth williams. Thank you for that kind introduction. I wish i could join you all in person. It is a real pleasure to be here with you all. For the past three years, i have been blessed to serve and what i believed to be one of the best jobs in the federal government, leading the office of legal policy. Policy advisor and we participate in the selection, vetting, and a selection. That affords a unique opportunity to where we are and how far we have come. Our panelists will share their insights into the most notable of the 63 decisions issued this term. To putit is important that number into perspective. In 2018, there were more than 358,000 cases filed in Federal District courts across the country and only 76 cited by the Supreme Court. What that means is that forever Supreme Court opinion that year, there were thousands of cases resolved by District Court judges and Appeals Court judges across the country. That is white from the Supreme Court to the District Courts, the composition of the federal judiciary has a profound impact in every state in america and will continue to have an impact for generations to come. Since the day that President Trump took office, this administration has been focusing on identifying and confirming strong constitutionalist judges. This could not have been accomplished without the incredible support of leader mcconnell and chairman grassley and graham. In the past three and a half years, President Trump has nominated and the Supreme Court has confirmed to Supreme Court judges and many other federal judges. Include colorados Justice Gorsuch and others. After just 3. 5 years, there are more judges on the federal bench today appointed by President Trump than any other president except for president obama. Today, there are more active judges on the courts of appeals appointed by President Trump than any other president and for the first time in 40 years, there is not a single unfilled they can see on the nations courts. Yet this incredible case has not come at the expense of finding highly qualified candidates. The president s nominees are historically wellqualified. According to many objective measures and the American Bar Association which is been described as the gold standard, President Trump additional appointments are among the most qualified in history. Some question the gold standard. Peerreviewed studies have shown that the nominates one study found that even controlling for credentials, 9. 715. 9ominees had credentialedlarly bush appointees. [indiscernible] more therefore all the extraordinary that the judicial appointees over the past 3. 5 years have earned the qualified rating at the highest rate in five decades. A remarkable 69. 4 of President Trumps article three judicial appointees have earned a wellqualified rating. Since before the administration, only president george w. Bush can close to matching that level. These accolades should be expected and other measures tell the same story. From Supreme Court and appellate clerkships, these judicial nominees provide sterling credentials. One commentator acknowledged that based solely on objective legal credentials, the average trump appointee has a far more oppressive impressive resume than other appointees. We know that these judges are more than their resumes. They have lived lives of character and patriotism and chosen to serve their country for a lifetime. Meeting these women working with them, preparing them for hearings and seeing them confirmed is the highlight of my job. They are some of the best of our profession. I am proud to report there are more judges on the way. With two dozen nominees currently awaiting the senate floor and more working their way through the committee, we are working to fill every vacancy we possibly can in the time that we are blessed to have. While we celebrate these confirmations and rightly so given the unprecedented obstruction, let there be no misunderstanding that these judges are political actors. They are not. Consistently, our nominees are faced with a cynicism that they can judge according to the law. They are derided for pledging to judge neutrally. And overve seen over is that these judges sincerely believe in the foundational principle that their personal beliefs should play no role in their decisions. They adhere to a limiting judicial philosophy that guides their interpretation of the law and a way that makes it consistent and most compatible with democracy. These are not platitudes. They are expectations that are essential for our public to function. Profession, we cast aside those fundamental expectations in terms in favor of cynicism, we risk losing confidence in the institution it is meant to serve. Perfect ando one is judges are humans and infallible. Fallible. We have found brave, smart, principled people who believe there is a right answer and who strive every day to find it, not create it, then we have done our job. Thank you for having me and i look forward to hearing from the panel. Thank you so much. From there, im going to turn it over to our moderator for todays panel. Hello. Thank you so much for having me. I am shauna wiseman. I am a policy fellow focusing largely on occupational licensing reform, regulatory andes across the board sometimes Supreme Court things. It is a real honor to be able to speak with you all today especially because i have been involved in the Federalist Society since i was 16. I am a giant nerd, but it is a fantastic organization and i always loved the ability to participate as a viewer with an organization that would have honest and intellectual debate. One other thing i would like to note, during and after the speakers, you can submit your questions through the q a function. If you have a question for a particular speaker, it is worth noting so i know who to address it to. Now i would like to introduce our panel. The first is a newsweek opinion editor, a syndicated columnist. Of the university of chicago law school, he has and clerkedlaw firm for the u. S. Court of appeals. Also a canvas speaker through the Federalist Society. Samantha harris is a senior fellow at the foundation for individual rights in education and an attorney in private practice with a focus on free speech, academic freedom, and due process. Theis a graduate of university of pennsylvania law school. She clerked for the u. S. District court. Lawnext is a professor of at the university of Denver College of law and a leading expert on free speech doctrine and theory, the law of federal courts and Public Interest law. He is the coauthor of two books. He continues to carry an active litigation docket. Represents civil rights cases around the country. He was a staff attorney with the aclu Chicago Office and a law clerk to a Federal District court george judge. To begin, i would like to begin discuss bostic b Clayton County georgia. Thank you. Like you, i am honored to be here. The Federalist Society is a great organization. I love participating in your events. Is a case that held that an employer who terminates an employee for being gay or transgender violates title vii. It was a 63 opinion authored by Justice Gorsuch. Im going to say a few things about it. Then let michael panelists time and. Myersonally then let copanelist chime in. Justice gorsuch seems to be developing his own doctrine of what was called halfway textualism. I look at a more result oriented decision of the more liberal justices that i also suspect Justice Roberts, that the five justices at a bare minimum the four liberal justices would have reached their desired result regardless of the reasoning. To the extent that that played a big role, i think this is the kind of results oriented adjudication that has distorted the whole confirmation and political process by allowing the assumption as an unelected super legislature. For me, i think the most interesting debate as a linguistics nerd came down to Justice Gorsuch and cavanaugh on literal meaning. The results came down to what the phrase discriminate against because of means. Both justices arguments were persuasive at times. That is the thing about these what writers that you read they wrote and you think it makes a lot of sense. Ultimately, i think i sided with Justice Kavanaugh. Justice gorsuch relied on literal meeting. Text by breaking the phrase discriminated against because of into two clauses. He says that a business that fires a man for being married to a man this is where Justice Kavanaugh disagreed and said that you have to focus more on ordinary meaning than literal meeting meaning and that considering the meaning of phrases as a whole and not just looking their component parts. That anple, he noted American Flag could literally encompass any flag that was made in america but in common parlance it denotes the stars stripes. Along the same lines, discriminate against because of has to be read together and in that way, would be understood to mean that there must be some sort of prejudice which isnt at issue in cases of discrimination aced on Sexual Orientation or gender. To me, that was the most interesting debate. I think i come down on the side of Justice Kavanaugh but you dont the phrase into two parts and use the but for causation test but look at what it actually means to discriminate against someone on the basis of sex. Again, i support ending discrimination on the basis of Sexual Orientation and gender identity. Congress has tried to do it many times and failed and i suspect that they ended up circumventing congress here for policy reasons but that that is not the direction we want to see the court go in. I have tried to keep that relatively brief because i know that my other panelists want to say things about it also. Other panelists, would you like to weigh in . You for hosting this wonderful panel. I just moved to denver at the end of last week. I will miss [indiscernible] dear late but i am happy to be exploring the Rocky Mountains with many of the people viewing here. Thank you for having me and for those wonderful remarks of williams. Ofate to be the voice pessimism, but thats why i was brought into the panel. I am just going to do what i generally do and come in guns blazing. This ruling is completely unsupported. It is counter to any notion of originalism. One is right to characterize this as a crisis level [indiscernible] think you correctly pointed out, the key phrase is scrimmage against because of. Scrimmage eight against because of. When Ruth Ginsburg was an aclu attorney in the 1970s, she argued that the key at issue in title vii was that whether one sex is disadvantageous position relative to the other sex. If you go back at least hundreds of years, i would argue thousands of years, it has always been understood in the common law tradition, in our tradition, and every tradition conceivable that the common usage and comment meaning of a interpretingal in a phrase, interpreting a word. Cannot divorce the common usage or comment meaning of a term at the time that it was enacted or the overarching purpose or goal of what the legislators had in mind does not get into the legislative intent that Justice Scalia wrote against persuasively including the 1997 matter of interpretation. It is not about legislative intent. You are trying to divine the intent of a legislative body. Rather, the overarching purpose of what the legislative body had in mind when they sat down and hashed this out simply must imbue the judicial enterprise of the statutes. What Justice Gorsuch is doing, i would call it halfway textualism. Textualism completely untethered to anything that remotely resembles the meaning of the phrase at the time it was enacted. We can call it literalism also. Who wastice scalia quite critical of congressional so, justiceoing scalia himself said over and over again that textualism is not literalism. That is what Justice Gorsuch has done here. First of all, inc. You for inviting me to this panel. Thank you for inviting me to the panel prayed am not a member of the Federalist Society and i am here to offer a differing opinion. I dont think it is travesty. I do think there are some difficult issues about interpretation of the case. I dont think there is a specific etiological valence to the way Justice Gorsuch carried out his analysis which you could reasonably disagree with. Engaged and what i would call textualist formalism. This, i can say just imagine many cases in which the specific textual analysis is going to benefit conservatives. Justice gorsuch has the long game in mind in that there will be other cases in the future applying this analysis which you members of the Federalist Society might find more palatable. There is an interesting question original meaning versus textualism in this case because these are typically both devices that conservative judges employ at different times. We focus on constitutional interpretation. Textualism and meaning are forms of regionalism. Although not the way Justice Gorsuch applied here, everyone is in agreement that in 1964, the congress was not going about Sexual Orientation or transgender discrimination. I also think that josh is wrong about religious liberty. This court has shown a penchant for robustly protecting the claims of people for religious exemptions from applicable laws. We see that in some of the cases that we will talk about later. What is really interesting is that this case and some of the other decisions are on a collision course with Employment Division versus smith which some of the justices said may no longer should be with law. It is basically a claim, a anybody that a federal law not a state law. The other question is, will similar challenges be brought in other states under [indiscernible] two claim exemptions from federal laws . Being a positive decision for the left for a put this inthen, the same context as [indiscernible] that there will be another case that raises religious exemption claims that the court has seemed to be in this current generation very accepting of. I would like to thank the panelists for their poignant and brief comments. You got in quite a bit in very little time i appreciate. This leaves us next to fetzer chen. Professor chen. Can you go through the other cases that you have for this panel . Yes thank you. Ofave a unenviable task deciding to talk about a lot of cases in a short amount of time. Generally, this goes back to the [indiscernible] the cases im going to talk about for the most part except for one are just all different forms of separation of powers. As uld conceptualize one