Guest Post

  • March 23, 2017
    Guest Post

    by Mark S. Kende, Director of the Drake Constitutional Law Center, James Madison Chair in Constitutional Law

    Judge Neil Gorsuch finished testifying yesterday so today was made up of testimony by surrogates and opponents. Perhaps most significantly, Democratic Sen. Chuck Schumer is urging his party to filibuster the nomination. Sen. Chuck Grassley, Republican Chair of the Judiciary Committee has labeled this a smoke screen. What would be the consequences of such an action and would it be wise?

    Historically, the filibuster is most famous for being used by senators from the South seeking to block civil rights legislation. Thus it would be ironic to see the more liberal party employ this tactic. Moreover, the filibuster is a very rare specimen in the Supreme Court context. One of the only other examples was a Senate filibuster in 1968 regarding the nomination of Justice Abe Fortas to be Chief Justice, which was based on ethics concerns and political bias.

    But despite its rarity, a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing. By contrast, the Democrats have shown Judge Gorsuch a huge courtesy, not shown to their nominee, in treating Gorsuch fairly and giving him extensive hearings. The Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist. The Republicans even stole one of President Obama’s most basic executive powers from him (selecting a potential justice who would receive a fair hearing), and gave pretextual reasons for doing so. That is not just obstructionist, it was contrary to the Constitution.    

    Admittedly, a filibuster may be largely symbolic. If the Democrats keep the Republicans from obtaining 60 votes, Republican leader Mitch McConnell has said he will ensure a change in Senate rules, so that only 50 votes will be needed for Judge Gorsuch to take office. This is typical of the new Trump era -- if the Republicans are losing, they simply change the rules of the game. This may be comprehensible as raw politics, but it is shameful when the fate of the Supreme Court and the rule of law itself is at stake. 

  • March 23, 2017
    Guest Post

    *This blog post was originally testimony before the Committee on the Judiciary of the United States Senate, Hearings on the Nomination of Judge Neil Gorsuch to the Supreme Court of the United States on March 23, 2017.

    by William P. Marshall, Kenan Professor of Law, the University of North Carolina, Chapel Hill

    The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.

    These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of organism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.

  • March 23, 2017
    Guest Post

    by Nicole Huberfeld, Associate Dean of Academic Affairs and Ashland-Spears Distinguished Research Professor of Law, University of Kentucky College of Law and  Jessica L. Roberts, Associate Professor, George Butler Research Professor of Law Director, Health Law & Policy Institute, The University of Houston Law Center

    If you are born in the United States and live long enough, chances are good you will be a Medicaid beneficiary at some point in your life. 

    Despite Medicaid’s ubiquity, the electorate’s sense of separation from the nation’s largest health insurance program contributes to its political fragility, as evidenced by the proposal to severely limit federal Medicaid spending in the Republican bill called the American Health Care Act.  This bill significantly limits federal funding for Medicaid, as reflected in the CBO Report issued Monday evening, which estimates that 24 million people will lose health insurance coverage under the Republican plan but that the federal government will save hundreds of billions of dollars from modifications to Medicaid and limitations on tax subsidies currently available for purchasing private insurance. Such federal spending cuts would have real and detrimental impact on the lives of all Americans, whether they realize it or not.

    Before federal health insurance programs existed, the poor were assisted by state-based medical welfare programs, but by the 1950’s, states could not pay for everyone who needed medical care.  The elderly and their families, as well as the non-elderly poor, were bankrupted by their encounters with medicine, and state safety nets often failed for unsteady political support and constant budgetary shortfalls. The elderly lobbied effectively for federalized insurance, resulting in Medicare’s passage in 1965. Medicaid, however, was enacted with generous federal funding but left to the states for administering.  As a result, for its first forty-nine years Medicaid only protected poor Americans who were deemed “deserving” under standards rooted in colonial values, meaning children and pregnant, blind, disabled, elderly or medically indigent adults.  Under the ACA (or “Obamacare”), Medicaid became available to anyone who financially qualifies, including all Americans in health insurance coverage so that they were no longer subject to the physical and economic insecurity of inconsistent health care access. Medicaid became a de facto form of social insurance.

  • March 23, 2017
    Guest Post

    by Imre S. Szalai, Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law

    During Judge Neil M. Gorsuch’s Senate confirmation hearings, Sen. Al Franken (D-MN) asked Judge Gorsuch about his reaction to the eye-opening New York Times series on forced arbitration. (The Times series – Beware the Fine Print, can be found here, here, and here.)  Judge Gorsuch replied, “[The series] made me think about a little bit of history.”  Unfortunately, Judge Gorsuch’s understanding of history is flawed. 

    Gorsuch described the main federal statute governing arbitration, the Federal Arbitration Act, as follows: “What it [the statute] did was to favor arbitration. Congress expressed a preference that people should arbitrate their disputes. It made a judgment, policy judgment, in favor of arbitration because it’s quicker, cheaper, and easier for people.”

    Judge Gorsuch’s statements demonstrate a lack of understanding of the history of arbitration law in America. When enacting the Federal Arbitration Act during the 1920s, Congress never expressed a preference in favor of arbitration. I challenge Judge Gorsuch to explain the basis for his perception of such a Congressional preference. He will not find such a Congressional preference in the history or text of the statute. Congress never expressed a preference for people to arbitrate their disputes instead of litigating their disputes in court; Congress never expressed a preference in favor of arbitration. Instead of expressing a preference in favor of arbitration, Congress simply recognized in the Federal Arbitration Act that if merchants willingly agreed to arbitrate, a court would recognize and enforce their mutual promise to arbitrate. In other words, the Federal Arbitration Act reflects a policy-neutral view regarding arbitration. If parties agree to arbitrate, they will arbitrate. But if parties choose to litigate, they will litigate.  In enacting the FAA, Congress made no value judgment in favor of arbitration over litigation, or that one system of dispute resolution is superior to another system. In enacting the Federal Arbitration Act, Congress was simply recognizing the right and freedom of parties to choose for themselves whatever system of dispute resolution they desired. 

  • March 22, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    The two days of Q&A between senators and Judge Neil Gorsuch has been marked by his unwillingness to answer some of the most basic questions about his views of the law. Judge Gorsuch and Sen. Blumenthal (D-CT), for example, had a lengthy tug-of-war about whether Brown v. Board of Education was correctly decided. This should not be a hard question, but Gorsuch resisted giving a straight answer. Of course, Gorsuch does think that Brown was rightly decided, and he eventually got around to saying so, albeit circuitously. Gorsuch resisted answering this softball because once he gave a straight answer about Brown, it was harder not to answer about other, more controversial cases like Griswold (right to birth control) or Roe v. Wade.

    Admitting to a belief that a case was wrongly decided does not require committing to vote to overrule (and I do not think that any nominee should make promises about how they will vote) because there are significant stare decisis concerns, as Gorsuch repeatedly and correctly emphasized. But a more candid discussion even about Brown would allow for some insight into how Gorsuch thinks about how to interpret the Constitution’s protections for rights that may not have been recognized by, or relevant to, the Framers. Indeed, at least in the portions of the hearing that I heard, no senator pushed him to fully explain his claim that Brown was “consistent with the original meaning” of the 14th Amendment, which might have shed some light on his judicial philosophy and methodology. (Segregated schools were widespread and uncontroversial at the time the Amendment was enacted.)