Law professors weigh in on the Supreme Court nominee and confirmation process

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Yale Law School professor E. Donald Elliott doesn’t share the same judicial philosophy as Supreme Court nominee Neil Gorsuch, but he believes that President Trump’s selection is “as good as it possibly gets” — as far as conservative judges go.

Elliott, an adjunct professor of law, expressed that view in a Feb. 6 Wall Street Journal commentary. He is one of a number of Yale legal scholars who have publicly weighed in on the qualifications of Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals in Denver, or on the confirmation process itself.

In his commentary, Elliott notes that he has known Gorsuch since he was an attorney in the Justice Department more than a decade ago.

“He is a brilliant mind, but more important he is a kind, sensitive, and caring human being,” wrote Elliott. “Judge Gorsuch tires very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead.”

Elliott urged Democrats to confirm the judge’s nomination for the good of the country. Nevertheless, he acknowledged that Democrats have reason to be upset about the failure of President Obama’s nominee, Judge Merrick Garland, to be given a confirmation hearing last year.

“Judge Garland is also a good man and a fine jurist, and he deserved better than to be treated like a political football,” wrote Elliott. “But retaliating now won’t right the wrong. It will only deepen the blood feud.”

In an op-ed piece in The New York Times on Feb. 4, Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law, predicted that in the future the Supreme Court will likely handle “core questions of civil liberties and the separation of powers.” She wrote that “since Republicans won’t press Judge Gorsuch” on his ideologies, “Democrats better be prepared to do it themselves.” Greenhouse added: “And they shouldn’t accept the formulaic response of ‘I can’t answer because it might come before the court.’ As Tocqueville observed nearly 200 years ago, in this country, everything and anything is likely to come before a court. That answer isn’t good enough.”

Greenhouse, who covered the Supreme Court for The New York Times between 1978 and 2008, recommended Democrats use a tactic proposed a decade ago in an article by Yale Law School Dean Robert Post and faculty member Reva Siegel. They advised senators to ask nominees how they would have decided past Supreme Court cases, rather than current or potential future ones.

Akhil Reed Amar, Sterling Professor of Law and Political Science, wrote a piece for Slate on Feb. 1 in which he assessed how Trump’s nomination for the Supreme Court may or may not heal deep divisions in the country, and said that the “sticky” question is what impact his service on the court would have on the wide rift between Democrats and Republicans.

“Many Democrats remain irate that Merrick Garland never got a hearing. But even had Garland been heard, there was never a guarantee that he would have been confirmed,” Amar wrote. “After all, Republicans controlled the Senate. Gorsuch is clearly not the Democrats’ favorite Republican the way that Merrick Garland and Stephen Breyer were the Republicans’ favorite Democrats. He is not the reincarnation of Anthony Kennedy, whom Republican icon Ronald Reagan named in 1987 to placate Democrats after the disastrous Robert Bork nomination came crashing down. But Democrats controlled the Senate back then, and they do not today, so Trump can drive a harder bargain.”

Amar pointed out that Gorsuch’s mentors include Bryon White, who was appointed by John F. Kennedy but who made some conservative rulings, and Kennedy, who has also crossed lines in his decisions.

“When pressed, will Gorsuch fudge or try to resist the tide of history on gay rights, à la White and Scalia; will he blandly acknowledge that same-sex rights are a fait accompli; or will he affirmatively embrace Kennedy’s bottom line by invoking originalist scholarship supportive of gay rights, by scholars such as Steven Calabresi (co-founder of the Federalist Society) and yours truly? Stay tuned. A great constitutional seminar awaits.”

In a Jan. 31 article in Bloomberg, Stephen L. Carter, the William Nelson Cromwell Professor of Law, decried the “lack of dignity” in confirmation hearings, among other aspects of the nomination process.

“[I]t is almost impossible to have dignified hearings,” wrote Carter. “Interest groups on both sides are too powerful, and the lure of the soundbite is too strong. We all hate the showboating of the modern confirmation process, where groups raise money and senators raise their profiles through vicious attacks on the nominees. But the showboating is integral to the process. I have argued for three decades that requiring nominees to testify is wrongheaded and even embarrassing. Nothing in recent history suggests otherwise. Think about the process. Senators ask the nominee questions they know that no one preparing for service on the Supreme Court can answer. They ask for promises, under oath, that the nominee will vote a particular way on particular cases. Nominees who refuse to play (as pretty much all of them do) are accused of being evasive. But it is the senators, not the nominees, who are out of line.”

Carter was also interviewed about Gorsuch on Feb. 4 on NPR, where he was asked if the Gorsuch is qualified.

“There’s no question that he is qualified,” answered the law professor, adding that he still expects a vigorous fight by Democrats.

“Filibusters against Supreme Court nominations, I think, are a serious problem,” Carter said on NPR. “As I wrote about Judge Garland when he was nominated by President Obama, I really do believe that nominees are entitled to a vote. And if people want to campaign against them, fight against them, and then vote against them, that’s fine. But I think that when a president wins an election and when a president nominates a Supreme Court justice, I think the Senate ought to take that up. I thought it was shameful that the Republicans did not take up Judge Garland, and I think it would be shameful if Democrats tried to block action on Judge Gorsuch.”

In his 2010 book “The Decline and Fall of the American Republic,” Sterling Professor of Law and Political Science Bruce Ackerman predicted that the president would be changed “from an 18th-century notable to a 19th-century party magnate to a 20th-century tribune to a 21st-century demagogue,” noted a Feb. 4 article in The Economist. An examination of the American system of checks and balances in government (including its judicial branch), the article ends with a quote by Ackerman about its future: “Can the system that has put a demagogue in the White House now hold him to account? We don’t know. But I can say that over the past half-century its capacity to restrain has been dramatically reduced.”

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Susan Gonzalez: susan.gonzalez@yale.edu,