Transcripts For CSPAN Trump Administration And The Future Of The Supreme Court 20170513

At 9 00 p. M. Eastern. Now, a look at how the Trump Administration and the appointment of Justice Neil Gorsuch will affect the future of the Supreme Court. This was part of the seventh Circuit Bar Association annual meeting recently held in india this indianapolis. It is one hour 20 minutes. Good morning, ladies and gentlemen. Thank you all for being here on this beautiful monday afternoon. My name is brian paul. Im an appellate attorney here in town. I welcome you to the circuit conference. Chicago inst met in 2016, a lot has happened. We have a new president and more recently, we have a new Supreme Court justice. So, what does this combination of events mean for the future . That is the question we will be addressing here today. There is lots to discuss. Lets get right to it. We have four experts from across the ideological spectrum to help us sort things out. Their resumes are long and there are accomplishments are many their a accomplishments are many. Mercilessly brief and introducing them. First, we have tim bishop. He is an appellate lawyer in chicago. Brennan. D for william kerryo him, we have severino. Dedicated to the rule of law with a fair and impartial jewelry judiciary. She served as a clerk to Justice Clarence thomas. Ramono her, we have martinez. Clerked for chief Justice John Roberts. Finally, last, but not least, we have don johnson. Hes professor of law at them our school of law at Indiana University in bloomington. Has selected a thec or two relevant to overriding topic of President Trump and the future of the Supreme Court. Asked that each speak in the order ive introduced them for 10 or 12 minutes. Time permitting, i will then ask them for any reactions they have to each others presentations and finally, we will go to you, the audience, for questions. Please be ready. Tim, why dont you start us off . Thank you, brian. We have a new justice. He has been there three weeks. Plenty of time for us to start judging him, right . What we have to go on so far is his participation in 13 oral arguments during the april session. Admittedly, he didnt have much time to prepare for these. Its a little different being on the Supreme Court fighting with seven other justices to get your question in rather than being on a panel of three in the 10th circuit. Nevertheless, we can learn a few things about his approach to judging. Argument of the session was a protection board case. Just as gorsuch just as usticeh injusticj theuchs oral argument decision can involve mixed claims. Both civil law and antidiscrimination law claims. In a statute provided that civilservice decisions are reviewed by the federal circuit and federal determination decisions are reviewed by the district court. What happens when you have a mixed claim where both of those are decided by the mspb . The court answered that in 2012 with an opinion by Justice Kagan. Mixed cases go to district court. And was a practical reason that drove that decision. It seems wasteful to split the claims and have them go to different courts. Perry, they decided when the claim has been dismissed, we will treat it as if it were a civilservice claim and it will go to the federal circuit. Gorsuch gets right to it. Both sides agree that mixed cases can go to the district court. But why . Where in the statute is that provided . By what authority does a district judge have the power to hear civilservice cases . A council refers to the 90 decision 90 decision he has in his favor. I thought claims of petitionersn counsel, we are not asking this court to break any new ground. Great line from gorsuch. No, just to continue to make it up. , justecause it is there because it is not there doesnt mean it shouldnt be there. I agree with you. He agrees with the policy behind divided claims are not a good idea. But, it is not there. Vein. S on in this Everything Else goes to the federal circuit. That would be a nice, clean rule, right . It would be a lot easier if we just follow the plaintext of the statute. Let me give you a couple of reasons. Not reasons. They are in the language. Do you have any authority . Every court has followed it. Kagan has had enough at this point. Right. This would be a kind of revolution. It would require overturning a 90 recent precedence. Kagan is good at getting a laugh. Away my Justice Gorsuch is showing his devotion in plain statutory language and in a case where he challenges a recent unanimous decision over the court. Isknow that Justice Gorsuch not going to be any sort of a wallflower on this court. I will skip chester and look at another plain statutory language example. Securitiesinst amby anzsecurities securities. Does the filing of a carjacking within the oneyear statute of period for toll the the threeyear statute of repose . If not, you are not going to be able to wait to file opt out for classaction. If there is no tolling, im told by the mutual funds and organizations like calpers that they will have to file opt out actions, all file their own separate suits right away. At the same time, smaller investors who are going to be familiar with all these roles will lose their opt out option if theres no tolling. Thats what roberts, brian and kagan focus on. Gorsuch chose to look at the linkage of the statute. It says no action may be brought more than three years after the conduct complained on. Gorsuch, why shouldnt we follow the plain language and traditional understanding of the term action . Congress could have said claims instead. The opt out actions bring the same claims but they are separate actions. Consequences. He i dont like the policy consequences. But come as a matter of plain lingwood, why wouldnt we say it is a new action . But, as a matter of plain language, why wouldnt we say it is a new action . Itsouri has a scheme whereby will provide funds to build soft Playground Services for any entity you apply and they choose who to give the grant to. Anyone can apply to mix of churches and other religious entities. That anyone can apply, except churches and other religious and to these. Violation . Lusion a Justice Gorsuch made a statement. It has been remarked that in the 10th circuit, he frequently would dress up his questions and statements in question form. He wasnt shy of giving his view of the case arguing with the other judges through these rhetorical questions. Argued that this is a Selective Program, not an automatic one. Gorsuch says how is this termination any less if it is a Selective Program . How do we tell the difference . Another theme, he thinks the plain language gives you bright lines. Once you depart from the plain lingwood, you have to make up where the lines are just plain language, you have to make up once you lines are depart from the plain language, you have to make up where the lines are. Theres no line drawing problem there. We know thats what happened in this case. We know the decision was made because it was a church. The answer probably results Justice Gorsuchs view of how to case. A cas that i will talk about something here that gorsuch said at the third conference after these arguments. Third circuit,he i had no trouble getting out any argument i wanted to get out. In the roughandtumble of the Supreme Court, that is not the case. You have to develop techniques to ensure you get your question in. You see this running for the argument through the ahriman. Through the argument. Let him get his question in before the next justice interrupts. Will wait and see of Justice Kagan starts counting five words back. Personal jurisdiction garnished a lot of interest. California reported to exercise jurisdiction over not just the claims of californians against a noncalifornia any fractured drug brister mile Square Brister Meyer square. They had a jurisdiction over those injured in california. But its also said, we have jurisdiction over claims against noncalifornia defendant of noncalifornia purchases of the defendant product. The active argument most questions are one of what it inns to center these cases one place. When we get to core search casting as an solicitor general, we talked about her disability, but we havent talked about federalism. We know this is another one of orsuchsnterest g interest, preserving our federal system. Could you give us some what implications are with in ministering these procedures with respect to its own citizens who taught that occur in some state. Thats a softball. He saw one. Here are my concerns. What does it do to ohios sovereignty, when california grabs the cases of folks who bought and used paxil in ohio, and said theyre taking jurisdiction over these . 6 plain0 language federalism. The question 0pm is of interest. Aboutive questions our there are three counsel here. Thats typical. Its usually between the third the 30 minute arguments usually get between 50 and 60 questions. Rapid when you are preparing for our argument in the Supreme Court focused principally trying to think about the questions we will be asked in getting those questions to one or suit two sentences. You know you get up for her interrupted. , liberal,e breakdown conservative. Liberals between them are 73 questions the conservatives past 32. The most active conservative are asked fewer questions than the least active liberal questioner. ,eceipts and scalias death this is fairly typical casebycase depending in the interest level the justices, the buyer and kagan breyer are clearly the most active jury will have to see if gorsuch changes the equation is a gets into the swing of things. The last one, my favorite case. I didnt have to print i dont know how to pronounce it. Maslin jack the nationalized citizen case like a lot of plug blessed to you in the part pressed west week, youll see why. The question presented, a naturalized citizen be stripped of their citizenship in a criminal proceeding stomach full statement that isnt material to the question of utter they would have received citizenship or not . Does the lie have to be something that should been about wouldve stopped you from getting naturalization . Theres little sympathy from the petitioner in this case. The justices thought this was material statement she made. On her refugee application, she said that her husband was trying to avoid military per prescription and the forces when it turned out that he was actually in them and the forces comes serving in a unit committing atrocities what this was really about is the government have to prove that, because if they do, they prove materiality. Nevertheless, it does look like to reroute to win on materiality, whether the government has to prove that. Spectrumacross the were concerns that, without immateriality requirements, the u. S. Could strip citizenship for trivial misstatements. Some nationalization on says, assisted inr committing or attempting to commit a crime or offense for which you are not arrested . Think about that. Anyone think of any that you might have . [laughter] chief Justice Roberts can think of one. I drove 60 miles an hour and a 50 mount our zone outside the statute of limitations. I was not arrested. You telling you can come 20 years later and stripped me of my citizenship . Other justices use the example but lying about your way to the application, or lying about an embarrassing nickname you had in high school when asked if you have been known by any other names. It went downhill from there for the assistant u. S. Attorney. Robert said he feared rustic it prosecutorial abuse and statement from anyone can have their citizenship naturalized. Then its up to the prosecutor to pick and choose who gets to be national naturalized, and who doesnt. Kennedy is angry. Their argument is demeaning, the prince of italian of citizenship you are here arguing for the United States. So theres a lot of heat in this case. Does not get engaged in any event. His questions focus almost entirely on one thing the criminal statute 1425 has to the first makes it a crime to knowingly procured naturalization contrary to law, and some be makes it a crime to knowingly occur picture nationalization to which 1 naturalization to which one is not entitled. Be coming getting naturalization to which an untitled encompasses materiality. That seems to be a requiring connection between the lie in the entitlement. Where is a, but the petitioners prosecuting prosecuted under, was not. Says, the single statutes do you have more materiality in them. The criminal ones dont. Were to add the world material to they didnt. He gives a softball to the system is cheap. B a b if youre not entitled to begin with, a is if you have been entitled if youve lying in the process. Soon a materiality is required. This is start between chief Justice Roberts and Justice Kennedy who are in. By the governments arguments in this case. Doesnt talk about any of those fairness or what roberts called, the extraordinary and Unlimited Power that the materiality would give for the government. Instead he focused on the statute free language. Im finished there. Alternatively kerry just with high observation, what these arguments suggest is that President Trump got Justice Gorsuch exactly what he was looking for. Some who follow statutory language, federalist principles, right lines above all else. Thank you. [applause] all right. Thank you very much, tim. Theg to talk about nomination process for Justice Gorsuch and what we learned about that, and how that will impact the potential future vacancies on the court as well as how Justice Gorsuch appears to be at attacking we got a great review of his oral arguments thus far. Unfortunately its a small simple, but its what we have to go on for now. From this past confirmation process the first lesson that we learned, one that President Trump just recently reiterated, success of his strategy of having an actual list of names to choose from, this is maybe the first president ial election process in memory where the Supreme Court the type of major issue that it was. You sell 1 5 of voters and is a polls saying, this is their number one issue, the reason they want to the paul. Voted decidedly for President Trump. But there were a lot of voters who felt it was important part of the reason that there was there were so many voters driven to trump, was because of that list. There are a lot of people who were unsure of where he was on various different policies that maybe they didnt agree with, but they understood his approach to appointing a Supreme Court justice. Appointedted out, he justice to did what he suggested it would do. Its very easy in the past for president ial nominees to simply say, i will point someone to the Supreme Court who loves the constitution, who loves the lock, leave it at out at that. We all know theres a wide variation in judicial philosophies. What you mean by that exit a difference in many cases. So knowing more meat on the bones of what did he mean behind by i will appoint someone even with Justice Scalia, is this someone who has a team in place and knows how to identify and justice in the mold of Justice Scalia . Having some concrete names allows people to make the judgment call them self. It is the people who would carry on that legacy . It appears many said yes. You think would just gorsuch, he came up with someone who will carry that. Its also an increased level of transparency that we havent. Een in previous systems he actually talked about who he talked to come up with list. We also have an idea of what he will go to Going Forward. He just recently said that hes planning on trying for the next Supreme Court vacancy from that name list. It gives us more understanding of what that is. This is one of the most important decisions the president will make. From the can see aftermath of his last election. We see executive orders have been largely scrapped. Legislative accomplishment is already on the chopping block whether roots were republicans can chop it up is another question but they will attempt to. Justice sotomayor, cake income are going to be on the court for decades to come. This is something that deserves in president ial nominations. Hopefully will Going Forward with this president having been set. I think the success of justice confirmation process will play into the dynamic for the next confirmation. The stakes are presumably going webe higher simply because are not replacing Justice Scalia with someone by a republican president theyll be replacing Justice Kennedy, ginsberg. Both someone that a republican chooses it will presumably have more impact on the court. Talk about it in a minute, dont think confirmation of Justice Court such will ultimately have a great impact on the court. When you compare with the alternative, it wouldve had a huge impact. You compare the likely of anime but of either obama or a clinton presidency, then you can see, there is a huge contrast. Contrasting we have with justice clear, gorsuch, wont be a big contrast. So the stakes next time we assume it will shift and more or less depending on who he is replacing. Current given the status of elector latecomer republicans are probably in the stronger position here. Trump himself, President Trump has heard that the confirmation of Justice Gorsuch is a good strategy for him. The poll regarded that as one of the most successful initiatives he has taken in this presidency to date. This is part of the reason you see him saying yes, going back that worked well for me. I could see going back to the same kind of team he had in place to help shepherd that confirmation process to through. The gop senate thought of that as a success. Mitch mcconnell who often gets raked over the coals by conservatives for being a squish, or various things got a lot of for that, well deserved for managing to keep any number of senators together, let alone 52 republican senators on issues, the real challenges the senate. Gorsuch will also see opinions in junes he will not have many, but he might get maybe two. But he was the votes and several other cases. I think that will likely confirm for the American People that was a good choice. Hes thoughtful, he will show himself to be up to this challenge, even having only a week to or for your first oral argument. Someone so well qualified. Hes up to it. Well also see contrary to a lot of the rhetoric beforehand, the sky is unlikely to fall. We know that theres not a great number of highly controversial cases ands april sitting. Case controversial tori to listen case, looks for arguments for my view, more , orly that it will go 63 even 72 with Justice Breyer joining in the majority in upholding religious freedom in that case. It will be less to paint that as this conservative blowout when i think that we will see is probably bunch of cases, many of which nontopics that will get people excited, but you will see this guys doing a good job, well done. It will all be challenging because there is not a filibuster anymore for the Supreme Court seat. So thats threat is out there. I think the pattern construction to this nominee i was a big fan of Justice Gorsuch all along. Think he was so wellqualified obstruction that was given by the democrats hurts their credibility for future nominees. The next ones will be more controversial. It will be harder for them to make the case that the next nominee is going to be the end of the world when it frankly they are saying that about Justice Gorsuch, that was will post a lot of republican gop men notembers to put not wanting to push the role to do so. If theyre criticizing the sky, they will vote against anyone on a partisan basis. That may hurt their credibility, we will see if he appoints someone who has a capacity to ignite the left enough to bring up a lot of opposition. In terms of Justice Gorsuchs impact on the courts, i think in short run, it will be relatively minimal when you compare it with Justice Scalias position on the court. We are more or less back to where we were year ago before Justice Scalia passed away. Context, just a reminder. When you look at the statistics, we think of the Supreme Court is being this divisive place, but top, big cases seem like theres a huge ideological battle. In reality, 40 of the cases , italyrm are unanimous some terms of everyone getting on the same page of the judgment upwards of a quarter of them in the last few terms 2030 or 100 unanimous. Thats profound. As likely to be very little impact on them the majority of cases. 54 cases that to happen dont and that many. Looking at the last few terms last term for 45 44 decision, there were a couple of of hung juries after school he died. There were 85 for decisions on the term. Thats not a gigantic number. The new think that term, it happened those with the ones that would have fallen along ideological lines. Many dont fall on those ideological lines. The high referral cases they seem to most of the time. They are determined before there were 19 54 cases, six of those were just a totally split you wouldnt have predicted. Previous term there were 10, six were on ideological lines 34 four on weird alignments. Some of these cases though come down to what we might think of as a typical ideological split. So think there is going to be hard to predict we will may are be see him voting in this case is along the lines of where we would see with Justice Scalia. I think the impact come in terms of Current Issues likely to be impacted most, the one we see contrast between gorsuch and scalia, is in the area of administrative deference. Those are some cases that have come up before the court. Weve seen the court shipping away in the past few terms chevron differences is something that he has called out and criticize, gotten a lot of criticism, particularly from the conservative justices. Think by scholars across the ideological spectrum think theres issues with violating the administrative procedures act, having problems with constitutionality because you are allowing an agency to take a legislative powers and relet laws and judicial powers in terms of determining what the law is. But in recent times, weve seen the court chipping away and a further out area which is the outer deference line of cases, in which an agencys allowed to interpret it own regulations and according cant even interpret. The same person writing the rule as interpreting the role, that becomes problematic. The court has pushed back on that in some cases and a lot of people saw while Justice Scalia was in the court, some of historically a fan of difference and administrative agencies or originally was he is changing his was changing his position during his career but he was saying, this case is crazy. Maybe we need to push back even though it was when he championed in the beginning. Thats when arab we may see. Some things we dont fully know our what are his overall cases . Maybe his criticism of that 90 will play out, well see, but about will be hard to predict on his time in the lower court. Itll be interesting to watch personal dynamics. As dynamic with kennedy as a former clerk of hints and with others session or argument patterns, think the oral justices do their questioning. Watching that happening except Justice Thomas we will get to see that. And then future issues coming up will have people talking about their outstanding issues on executive Authority Like United States versus texas, and we will see immigration by Little Sisters case is still outstanding, a cake artist coming up cream Second Amendment cases, epa cases pattern of those will happen to use of administrative issues but that we sing to see. I will handed over. [applause] thank you. I would like to talk about the Supreme Courts docket, focusing on the last year and what kind of dynamics we might expect to see with the Supreme Court and the Trump Administration in play not in office. My basic theme and expectation is that the course docket, in particular its resolution of the big, sexy cases that the whole country cares about the most, we will go from famine to feast. The last year has been its fair to characterize it as a slow term, not very exciting term in terms of the cases at least. I have a feeling and what of the new administration and justice, things will pick up quickly. A year or so from now we are seeing bigger cases coming through the court making big moment is to citizens number of different areas. To start with the past year or so, weve all seen two main storylines from the Supreme Court. On one level, you have a series of big, dramatic historic level development. Justice scalias passing of course, senator mcconnells strategy and roach to dealing with the vacancy of the nomination of justice garland election of President Trump, the justice for such country is rightly and focused on big national events. Thats the first storyline and youve got that going on. At the level of individual cases, it has been a slow, relatively lowkey term. It seems like and its hard to speculate, just looking at what cases they have taken and how we have resolved them, we dont know from the justices themselves, but seems a theres been an effort to dial down the temperature at the court, kind of manage this tricky transition. Carefully. Try to find consensus, the side issues relatively narrowly, and in terms of cases the court is taking, maybe take a slightly more disproportionate, technique cases that wont generate harsh ideological dispute or divisions. One way to look at that is to look at cases that have been actually decided since justice fully is passing. Lookye back of the and the envelope count, there are 90 or so of those. 58 of them maybe after this morning slightly higher were decided unanimously. Or by 71 margin. Get huge percentage of cases resolved with the courts is Justice Scalias path where all are installed justices are lining up coming out the same way. Of those 90 or so decisions, have been 1012 decided along ideological lines. Clinton and obama justices voting one way, Justice Thomas, toledo, and the chief justice voting the other way. Thats a sign that the the court has been trying to avoid those kinds of disputes. And counting in those 44 cases that were not discredited decided last year. This term doesnt have a ton of cases. There were less than 65 there were slow in deciding cases to resolve. A lot of people thought they could be maybe even in the 50s for the first time in a long time. Not some a blockbuster cases is term. A couple of my colleagues on the panel have talked about the lutheran case which is the biggest case i think of the term. Even that one is the same level of abortion or affirmativeaction or obamacare or immigration, issues that came up in previous terms. More anecdotally, i left the that iors General Office was out for four terms you can see the kinds of cases the solicitor general himself personally gets involved in grade one of the nice things about being the solicitor general is because the United States and participates in so many cases you get to argue a lot in the Supreme Court yourself. You get to cherry pick the fun, sexy cases. Usually solicitor general will argue seven cases of term. In this term, the three acting suit solicitor generals have argued a total of three, which was flex the fact that there wasnt a lot of sg where the material on the docket. In terms of this past term, it has been relatively slow. That said, things will pick up. President doing a lot of things which seem to be generating attention. We have a new solicitor general who might or new administration might use the sgs office to take a more aggressive approach. Have a full Supreme Court. I want to highlight what i think are maybe for dynamics that im looking at, and that i think might shape of the courts docket involves Going Forward. The first dynamic is the relationship between the Supreme Court, the courts of appeals, and executive branch acting through the Solicitor Generals Office. I will say, why, but i think the dynamic between the three there may be more petitions coming to the Supreme Court. The courts docket might modestly in crete increase. This seems to be the first time in a long time or first president can come at office and has been philosophic we, tightly aligned with the current justices of the Supreme Court. But where both the president and Supreme Court ideologically seem to be in a different place for most most of the courts of appeals. Right now democratic appointees control mine of the 13 courts of appeals. More than majorities, twice as many democratic appointees van publican appointees on five of those court appeals. There are a number of judicial they can these, but even if President Trump fills all of those vacancies tomorrow, the democratic appointees would have control of eight of the 13 courts of appeals. Is, if you are sitting in the Solicitor Generals Office, the white house counsels office, you are going to be seeing a fair number of cases coming out of the courts of appeals that you disagree with. When you look down the streets of us are in court, you will see friendly faces, just as gorsuch, toledo, thomas, the chief kennedy, who, although he is in the middle, conservative with justices, 6065 of the time. Dynamic, the fact that there be decisions coming of the courts of the appeals by the Administration May disagree with and the possibility that the Supreme Court might be friendlier to it, might lead to more positions and an aggressive posture at the surtout our stage from the government. I also note, in recent years, the governments filed only 1520 petitions the year. Thats a low number. If you look at it in its Historical Context you go back to the reagan and bush, first Bush Administration, they were filing somewhere between 3050 petitions a year. The Clinton Administration filed about 30 a year, their 2030 petitions filed in the first george w. Bush term. I think its possible that you see the sgs office go back to those maybe not all the way to the, but you could see an uptick in the number of petitions. So thats dynamic number one. Dynamic number two, theres interesting sets of cases i like to think of them as the switcheroo or what less cases whiplash cases. These were initiated during the government during the Obama Administration. Another Trump Administration has inherited them. Maythe Trump Administration be switching positions. There are number of these cases that race issues that people would generally think of us Supreme Court were the issues. Its unclear what the Trump Administration do with some of them, whether they will continue to ending whether they will switch positions, and what the effective of that might be in those cases. There are a number of them come all to start a couple highlight the ones that are the most interesting. Case involving transgender bathrooms, a case that the Supreme Court did grant this year. The Obama Administration was defending its interpretation of title minds ban on sex discreet sex discrimination in schools, the basis of gender identity and required transgender student to have the right to use the bathroom of their choice. The Supreme Court granted review withat issue, then than Trump Administration came in and withdrew the administrative guidance supporting that interpretation, the court sent the case back to the Fourth Circuit to take another look. I think the case could welcome back to the court and a posture if the fort circuit decides that the statue, even without the ministration of interpretation, the statute supports the obama position them that could go back to the court. There is another big case in the d c circuit that will be argued on bond and a couple weeks. That involves the constitutionality of the structure for the Consumer Financial protection bureau. Its particular whether the director of the bureaus the structure and his authority consistent with the constitution. Panel of the d. C. A turkish in a decision by judge kavanagh held that the cfp be director has too much power, because he cant be removed by the president that will. And he is not checked or balanced by any other fellow commissioners the way that most agency headsdent are. And so, the d. C. Circuit vacated that decision is having an unbalanced argument. If you look at the composition of the d. C. Circuit, not craziest thank that this will be upheld. What is interesting, although Obama Administration was supporting the constitutionality of the statute and its director. The Trump Administration has taken a different position and said that the director is not constitutionally structured. That will be one in which theres a very clear switcheroo already, we will just have to see whether the Supreme Court is interested. Theres number of other cases, house versus burwell, the house of representatives has sued the executive branch, the department of health and human services, alleging that the executive branch is making a lot of payments to Insurance Companies under the Affordable Care act, which payments have not been authorized by appropriations from congress. This was a big battle between the house and Obama Administration, now unclear how that will be resolved, its possible that if there is a reform or repeal or replace or something, legislative something happens with respect to obamacare, thats that might go away. There are a bunch of these cases there are couple more of them as well. The third dynamic sets i want to suggest that will be significant, the conservative litigants are going to feel light headwinds, they are going to try to start pushing on a number of key issues can. The two i will put up briefly that are likely to be new the top of the agenda, our union dues. The spring court lester seemed to hold that it was a First Amendment violation for Public Sector unions to require nonmembers of those unions to pay fees to pay for the collective bargaining efforts of those publicsector unions. The oral argument suggested it would be a 54 decision overturning a prior precedent saying that you can force people who were not members to pay those fees. Interest is scalia passed away and the case was resolved forfour. Thats likely come up. The Second Amendment is likely to be an important issue. There is a petition for such worry currently pending filed by hype essentially asks the court to address the question of whether and when the Second Amendment protects the right to carry weapons outside the home. So those are two examples can i think there will be other cases in a wide variety various which kerry mentioned as well. Finally, you will see very thatg sets of challenges will probably reach the Supreme Court that come from the left, from progressives who were unhappy with the Trump Administration on policy grounds. Think their Strong Political incentives for enterprising attorney generals, out there across the country to file lawsuit. Think are likely to see a lot of what we saw a conservative states but against the Obama Administration, except instead of red states filing suit, it will be blue states. Weve seen authority in recent years. The states have become very savvy and effective in developing Solicitor Generals Office is and taking a proactive and aggressive approach to investing ideological and policy agendas through the course is executive i think thats likely ending is the litigation over the travel ban executive order. Reversing a couple more cases that are just will show similar dynamics in the field of immigration. I dont think of going out alone to say that a lot of progressives of their goingssive states where to try to hit the it it is court will have to resolve that it is a good chance alone that will of loftus in court. Only. A cases. And the conservatives trying to bring more cases to the Supreme Court and progressives will try to shut down a lot of the initiative jump administration thank you very much. [applause] is an executive branch lawyer working for bill clinton and barack obama, i will talk about President Trump and the courts and issues of executive power especially the issue of deference effective. On second, some reactions the issue of judicial appointments. So much could be said so i will focus on perspectives from my time working as a Legal Advisor to president s from that perspective. Strongould argue and support of the courts deferring to the executive, especially in National Security matters i feel certain that all of us are hearing and the courts. Feel on the courts and in visual judges and Court Decisions reject some of his policies. Trumps traveling, sanctuary city policies come his attempt at reopening Police Consent to increase, the texas voting case, and more. You may not notice that trump emphasized that his 100th day had is to talk a that he the largest number of executive orders, he had 30 executive orders, which surpassed all the president back to fdr. President johnson was in second with 26. Those have provided fertile around for legal challenges and will raise the question of appropriate deference. President trump predictably is seeking deference. To his views on National Security threats by limbo about illegal immigration. Judges so far appropriately have been taking closer looks at statements, relevant to motive and meaning of the actions, behind the actions i have issued persuasive decisions. Rejecting President Trumps arguments. Move beyond these particular initial cases. Want to suggest something more bold. He more general proposition, the Trump Administration is not to the ordinary deference given president s. It President Trump has effectively forfeited the measure of a deference. His unprecedented disrespect and disdain for the court in rule of law. When important question, is trump really exceptional . Not. Of said will probably initially say, how about is an injured jackson westmark said last week, i happens to a talk to them by the president ial biographer john meacham, who was wracked with this very question. Meacham offered a prizewinning authored a prizewinning biography of jackson. He did work on what looks like will be a german spy on George Minturn shared a story, i will do my best to share with you. President trump was planning to honor Andrew Jackson his portrait trump has hung in the oval office. Mention, expert on justice, doesnt by the comparison. On the occasion of trumps visit, he wrote a public letter to donald trump in the local paper which ran across the whole front page. In it, meacham suggested ways in which trump might benefit from following jacksons example. Ran,ay after the story meacham got a phone call from president bush. He looked at the phone and saw the number he knew bush was in. He hospital moment bush sounded strong and said, i read that open and. Meacham thinks him for the call but was worried thanked him for the call that worried that he was referenced referencing a letter to jackson. Call,d thank you for the he gently corrected the 93yearold president bush and said, i think you mean the letter that i wrote to trump. Bush didnt miss a beat, quickly replied, think jackson is more likely to read it. [laughter] all right, back to judicial deference. Ast your students learn interview congressional and executive actions, they often use and doctrines of deference. Courts defer to political actors except when theres good reason not to. For sample, deference is not appropriate when the statutory classification receives along suspect lines or infringes fundamental constitutional rights. The deference typically afforded submit,t, i would depends on the plausibility of belief the president s decisions respect the rule of law, are properly informed by relevant advisors of information and facts, and are in service of the Public Interest in my view, President Trump is vote of the plausibility of this and thus his own claim to deference to some degree. To 1819, mccullough versus maryland and is, the authorityurt in 1819 broadly and differentially come upheld congresses authority to establish national bank, that the corporate come, we must er forget that it is expanding, a constitution intended to injure for ages to come and to be adapted to the areas crisis of human affairs. Call also relied upon the political branches prior deterioration of the question. Its open , the court referenced consideration and your vote, and the executive, which is preserving talents as a measure is ever experienced in the supported by argument convinced minds as pure and intelligent as this country can boast. So deference is based on the expectation that judgments are guiding executive actions. Musical hamilton wonderfully reminds us that the cure is intelligent mind reference in this passage describes president washington, asking catheters for the constitutional system hamilton you never all that musical number in the tavern, he was Alexander Hamilton Thomas Jefferson and others rat out about the constitutionality rap out of a the constitutionality of the bank. Andrew hamilton wins, spoiler alert. In modern times, the attorney buys legality of the actions the president to fulfill his responsibility to take care that the laws be fixed faithfully executed. Served as acting head of the austin Legal Counsel counsel under bill Clinton Deputy Walter Dillinger when he was the head of that office in the earlier administration to justice rehnquist, as did Justice Scalia. Is respect,ice functions similarly to a court. When it is properly done, it for judiciale case deference to executive decisions. When you dont have the minds of Thomas Jefferson even, or Alexander Hamilton working it out. , proud have a long bipartisan tradition of accurate legal advice, his tongue the president , no when the law dictates. The vast majority of lawyers are , samele career attorneys throughout the executive branch. This will Generals Office as well. Respects, this is more susceptible two political pressure than courts. Theres other differences as well. So much depends on having a president s president rousseff the right tone of a commitment to the rule of law, the kind of legal advice that the president wants to hear. You may remember, following 9 11, all see this is when many people first heard of llc commits repetition was harmed aeatly when someone leaked very poorly done and driven policy memoranda, not in the tradition of the office come on interrogation, that found that the president could rely on his chief of authority to order torture. Those memos have been rightly. Epudiated we saw the Supreme Court engage very actively in reviewing the post9 11 Bush Administration actions for several years. Courtse cases, the rejected the executive claims of seeking deference and that limited context. So what does this all signify for President Trump . Trump, i think through his own words and actions, he has substantially eroded what i described as the essential plausibility of a leaf. In good faith informed public decisions,esidential the specific examples are legion about disrespect for facts. I will skip all those. Weve all been following them and know them. I want to conclude with my few observations about judicial justents, and say reaction to achieve Justice John Robert statement after the ,orsuch confirmation process the judges are not democrats are publicans, they are just judges. That of course is correct and some limited since bipartisanship said should not affect judges responsibility for oh lc lawyers. About howervations that statement and complete is incomplete at best. Theres leadership in the senate to consider the animate Merrick Garland is a travesty, inflected harms of lasting concert. And. T is particularly a problem it is a continuation of a distortion that is in one ideological direction. The last time a majority of justices were appointed by demo and president was 1969. That is quite a fact. Senate has actively that wouldve run with Merrick Garland confirmation. Thats in the norms to from the court we now had. We have to think about the result of not too strong a word, eric garland seat. Long mediced decades difference in the resources between those in the arctic on the ideological left and right, democrats and republicans, and focusing on course. And, judicial selection. With the formation of the federal society the 80s of reagan and the attorney general meese issuing a series of reports about the critical need usedpoint judges who have consistent for president bush and mace were looking for. Im going to give you one final witness to this longterm in balance, and thats an enormous amount of the disparity dark spentand Time Resources on this last Supreme Court vacancy, just by the Judicial Crisis Network headed on my copanelist kerry severino. Just quote and by quoting one of the press statements on the , which describes an expenditure of 17 million of campmoney, for a national and to confirm President Trumps nominee to the Supreme Court. Coming off its victory in the garlands nomination battle with advertising is a casein and its allies focus in states where Senate Democrats are vulnerable in 2018, particularly those which are run by large margins. Spend 7n that we did million in the let the people decide effort against garland and expect to spend at least 10 million to confirm the next justice. The. Vulnerable senators of an election in 28 Michael Donnelly and Claire Mccaskill to decide senate are following the projectionist agendas the terry sobrino, chief counsel of the judicial races network. In vulnerable senator send the directions that strategy will be racing to the. I personally have been involved in advised that judicial limits. It should the politics is an inherent great of course it is. But having massive dark money to direct corporations overwhelmingly on in one ideological direction, create interest in balance and threatens our National Treasure of our independent judiciary. Thank you. [applause] i was wondering what caused the fire alarm, it was this persons comments. [laughter] if you want to call the dark money, call it what you will. We had people involved in Supreme Court confirmations dating back to robert bork. We have questions 10 minutes for questions. Wait for the microphone please. My question is for miss severino. In light of what you just said about treating residents equally come im wondering when the President Trumps term you believe that his right to fill vacancies on the Supreme Court will end. Leftly with obama, people said he was 3 5 of a president. But tell me when trumps ability to fill both seats will end. That theou said American People didnt want Hillary Clinton to fall that seat, but i think thats not true. I dont recall voting on i made the phone and voted for obama. He also made that but when you are good for the United States senator, thats important part of the process that gets forgotten. If there had been a democratic senate, i have no doubt my mind that Merrick Garland would sit on the Supreme Court. N you look historically the last time we had a confirmation of someone coming through the election in an election year, its also we had a senate and president of the same party. Thats not surprising, its kind of how the constitution set it have a is that we do check by twostep process the president and senate. In this case, you have a senate elected of the contrasting party that is in general, why will the elections pushing back and forth each other your election, people wanting to put a check on this president or that person, now a different one. So you saw that senate carrying out the wishes of the people to put them into office. People had another opportunity to reelect senators and the president in november, they chose differently. It was not a foreground conclusion when Mitch Mcconnell laid that rule out. It was a foreground conclusion when joe biden first articulated that premise back when bush was in office. He said, i would not recommend the president nominate anyone at that point in their term, let alone, the senate should proceed to hearing and mission of that person. So this is a standard that was first articulated a joe biden, then senator joe biden, it was something that republicans did, confident that the American People want to have that opportunity, knowing that its the tables had been turned, democrats had been there and republican have been nominating it, same thing would have happened. Theyre not saying we wont confirm anyones president appoints, thats what senator schumer seems to be saying, that would put not putting anyone on the bed he puts on voted for kagan is very will question and gets twos point threats term, even though president obama did not . If there is a democraticcontrolled senate, starting in 2018, you may not see trump getting anyone else confirmed. Thats not is of the timing, its the political backing. The senate and presence of the same party come historically what we do see is that those two candidates to get confirmed. Citing a lot has to do with the politics of the senate and the president there as well. I dont think your answering estimates it was asked. Think your answering the question in terms of raw political power, which the republicans clearly did have, and they denied someone difficult to imagine a more qualified, brilliant Supreme Court justice and Merrick Garland, with whom i worked in the Justice Department in the 90s three strong, bipartisan support. Second the questions on the merit coming do we want unprecedented it is unprecedented to deny from the moment that they if vacancy occurred the possibility of even a hearing for president obamas nominee. So sure, the republicans had the power to deal this and they did it, but it is terrible practice my unprecedented, and not one that i would like to see repeated. Our it undermines independent judiciary, which is a National Treasure. We should not having his kinds when i say dark money, it means we dont know where the money is coming tens of millions of dollars to block judicial nominees like mayor carl even getting a hearing. 7 million for that. Its not the weight we should be picking if you are looking at the right thing not just below the straw political power, but the right thing is not to block the chief justice. This was a new low for our nation. I have enormous respect for Merrick Garland come i think he is a wonderful judge. If i were a democratic president , that these new the top of my list. But does seem, any circumstance in which both sides for a long. Of time evolving towards a system in which they are not going to give as much deference to the other side of they once did. You will not have a Justice Scalia or ginsburg confirmed unanimously. There doesnt seem to be rules in the road other than the constitution. The constitution seems to say, the president can nominate, but forward. Senate to move what we have seen, as kerry was saying, from democratic leaders, totor biden to schumer president obamas former white house, she wouldve done the same thing this kind of tactic is now fair game. Of essentially, using your authority in the senate to block nominations that you think are outside the pale, and that is fair game. The most prominent leaders in thenemocratic party, senator obama, senator clinton, senator biden, schumer, read, although reid, all voted to filibuster the he was elected. So in the context, besides seem to be resorting and invoking their Constitutional Authority to block appointments. It seems like im not terribly surprising thing, not terribly unreasonable for the party that happens to have control of the senate when it does to us or that authority. A search that authority. Maybe we could make a deal Going Forward and Everyone Needs to follow it, but in the context, it seems to me it is unfair and ignorant, or looks beyond the traditions that have evolved in the last 10 or 15 years to somehow accuse the Trump Administration or senator thatnell the appointment did not belong to president obama alone. I have to point out there is a difference, an obvious difference you are explaining between going through the ,rocess, presenting a hearing going through the questions and answers for the record, and the president you are describing is at the end of that, deciding on the merits of the person, not someone to senator wants on the court that will filibuster. Yes there is precedent for that, sure. But it is just a different, clearly different thing than what really shocked everyone and was unprecedented, undeniably unprecedented to not have a hearing and say we will not consider amity any nominees. That is a different category and a different take in this to a level that i think is harmful to our process. I totally support the ability of senators their right to decide to go against the nominee based on their valuations of who they want on the court. The two. T inflate i have to disagree because we dont have a very large sample of Supreme Court confirmations historically, but there are 36 which have not been confirmed by the senate. Of those two thirds, simply because they were not voted on. Only one third were voted and rejected. Said, thes raman senate can say how it must there does not have to be hearings. The practice has changed. There does not have to be a vote or not. It is the same principle that applies for other appointments. If you look at that, there is a larger body showing not action taken. The senate is 100 constitutionally free to take that action in terms of giving the device. One last very quick question. You mentioned the Western District of wisconsin struck down the Wisconsin Legislature a redistrictings was somewhat of a novel it is now in the Supreme Court. I was curious whether there were any comments about that issue. Read that question again. There was a redistricting decision in wisconsin. Panel,as a threejudge and the question basically was whether anybody has any thoughts about that decision or redistricting. I see, i am sorry. Partisanship and district. As a criterion for districting. Got it. Sort of ironic. Last time, they were embracing partisanship in the redistricting which was apparently the only good reason to redistrict. We will see if there is question back. Unfortunately i have not either. Hugely important. Ok. [laughter] thank you, everybody. [applause] [captions Copyright National cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] announcer 1 sunday night on afterwords, the business side of health care in the book american sickness, how health care became big business, and how you can take it back. Dr. Rosenthal is interviewed by David Blumenthal of the commonwealth fund. I wonder if your book if you whetherghts about health care is a free market, whether we can solve our problems in free Market Forces. I think what we have seen is the answer is probably not. The beginning of the book, i put a somewhat tongueincheek list of the dysfunctional health care market. If you think of health care as a know,ss proposition, you like a to crazy places lifetime of treatment is preferable to a cure. I am not saying for a second does anyone really think that, but that is where Market Forces put you right now. Announcer 1 watch afterwords sunday night at 9 00 p. M. Eastern. Announcer 2 this weekend on American History tv on cspan3, today at 6 00, cr gives on the black women that worked as nurses and spies for the union army during the civil war. She was the wife of edward bannister, one of the leading artists, africanamerican artists, and she became involved on the underground railroad. She was a proud and consistent supporter of the u. S. Colored troops. Announcer 2 at 8 00 on lectures in history, Margaret Omara on the 1968 president ial election. Hero after zero is slain, john kennedy, Martin Luther king, now robert f kennedy. Sir kennedys assassination like kings assassination is a national mourning, and now the democratic nomination is an even more turmoil. Announcer 2 lynne cheney, author of the book James Madison , discusses president madisons personality, health problems, and political career. He was lucky enough to encounter doctors to tell him to exercise. What a modern think the tank. Thing to think. Announcer 2 this marks the 100th birthday for john f. Kennedy. And jfks nephew, Stephen Kennedy smith, and historian reflect on the life and career of the 35th president. He was a decorated combat veteran. He did believe in strong military, but he had a much broader conception about what american identity really was. He reached across the aisle. He launched the peace corps, made first in 1961, an incredible regret for young people. He started the alliance for progress. Announcer 2 for the complete American History tv schedule, go to cspan. Org. In a world of ambiguity and temptation, you need a moral compass. You must develop principles that you compromise for no one, not for a loved one, not for a job, not for a chance of fame or wealth. Whether the individual acts in the legal or private realm, one dedicated person can namely affect what some consider to be an uncaring world. Starting at the bottom is not humiliation, it is humility, and honest assessment of where you are in the learning curve, so shall your ego, put your head down, and bulldog forward. Built on excellence, the agenda plenty, peace, protection of the environment, pride and pluralism. Announcer 1 a few First Amendment commencement speeches. And you can watch more by 29,ers on may 20, 27, memorial day, and june 3 on cspan and cspan. Org. On monday, the Fourth Circuit court of appeals in richmond, virginia heard oral arguments concerning the legality of President Trumps revised travel ban on foreign nationals entering from six majority muslim countries. This is over two hours. All rise