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Updated: 2017-03-23T19:22:18.480-04:00


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Will Baude posts at the Volokh Conspiracy about why Supreme Court nominees refuse to answer questions about issues that might come before the Court at some point in the future. He points out that senators could change this practice. The reason that nominees do not give more in-depth answers about how they would rule in given cases, or whatever else, may simply be that they have no incentive to do so. In today’s political configurations, there are very few Senators who both 1, will vote against a nominee because he or she didn’t answer enough questions, and 2, would likely vote for that nominee if they got honest answers. In other words, I doubt that the Senators actually care whether nominees answer their questions, or at least they do not care enough to reward nominees they otherwise oppose, or to punish nominees they otherwise support.I’m quite open to moving to a norm where nominees are expected to tell us much more than they currently do (though perhaps in a different format than the current theater). But if the Senators do not care, who can be surprised that the nominees follow suit?I still don't think that nominees should say how they would rule on hypothetical cases that might come before the Court. A good judge would decide based on the specific details of any individual case. Do we really want nominees who would give answers as if they have stock responses for a case on issues such as abortion, campaign spending, or religious freedom without caring what the individual details are? I certainly don't. The senators have enough information looking at how Judge Gorsuch has ruled in the past. There are plenty of cases and opinions out there for them to base their decision on. And let's face it, it would not matter at all how Gorsuch answered any of these specific questions. Paul Crookston links to Judge Gorsuch's answer to Dianne Feinstein's question as to whether originalism was in conflict with equal protection of the law. His answer is powerful and demonstrates that he doesn't have to answer on a specific issue in order to let us see what time of character the man has.It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.Senator Grassley made a good point about the hypocrisy of the Democrats who pretend to be so worried that a justice appointed by Donald Trump would be subservient to the president.Grassley also pointed out it is telling that the same people who have so loudly demanded that Gorsuch demonstrate his independence from President Donald Trump are the ones demanding Gorsuch tip his hand on a whole host of issues that could come before him—such as voting rights, the Second Amendment, abortion, and even the controversial travel order that’s currently being litigated.The WSJ highlights what Judge Gorsu[...]

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Judge Gorsuch has demonstrated what a quality judge and person he is. When I watched the hearings after I got home from work, I was so impressed with his intelligence, his demeanor, and his ability to have a sense of humor after a long day of questioning. When our nation's leaders are so disappointing, it's a real pleasure to see one person who is so admirable. And conservatives have not had a lot to cheer about in recent years. Donald Trump is not a conservative and not someone conservatives can admire. When he does act in ways we like, it sometimes feel as a pleasant surprise. And the nomination of Neil Gorsuch is one such moment.In fact, seeing him so calmly and intelligently answer the Democrats' questions should convince them to shut down these hearings because he looked better the longer it went on.The Democrats have demonstrated that they have nothing legitimate to attack him on except wild accusations that he might not vote the way they would like. His only fault is the man who nominated him. Senator Durbin asked Neil Gorsuch about the accusation by a former law student of his, Jennifer Sisk, that he told students at the University of Colorado Law School in an ethics class that he taught that employers should ask female job applicants whether they plan to have children. Of course, Sisk is a staffer for former Democratic Senator Mark Udall and worked in the Obama administration. As National Review reports, quite a few of Gorsuch's former students, some of whom were in the same class with Jennifer Fisk have written in to say that she totally mischaracterized how Gorsuch taught the class. He was using a socratic method to discuss ethical questions that students might face as a lawyer and taking the role of devil's advocate to explore what students thought. Reading those students' letters, it's clear that Sisk either deliberately lied about what happened in class or just is so full of the victimization ethos that she turned a perfectly reasonable discussion into an accusation of what Gorsuch was saying. For example here is what one student who describes himself as a "liberal feminist Democrat" writes, I was present in the class at issue and sat directly in front of the accusing student. I recall the hypothetical ethical dilemma discussed in the lecture that day. In that hypothetical ethical dilemma, a female law student, suffering financial hardship, is asked at an interview if she planned on having children and using the firms maternity leave policies. The female student in the hypothetical was planning on having children but nervous to tell the potential employer, for fear she might not get the position. Judge Gorsuch began to lead the class in debate as to what the appropriate course of action should be for the female law student. Judge Gorsuch made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to. In fact, as a man, I had never really considered the extent of pregnancy related discrimination that women face in the workplace until this very class. True to form (and the Socratic teaching style), Judge Gorsuch also presented counterarguments presenting the hardships employers face due to paid maternity leave policies, which I, as a liberal feminist Democrat, as well as the majority of my colleagues rejected.During Judge Gorsuch’s presentation of such counterarguments, I do not recall him accusing women of taking advantage of paid maternity leave policies, much less espousing such accusations as his personal beliefs. In class and in our conversations outside of class, Judge Gorsuch was always extremely respectful, inclusive, tolerant and open-minded. Additionally, Judge Gorsuch’s never shared his personal views on legal or ethical matters in class and was somewhat of an enigma. Had he made the statements he is accused of making, I would have surely noticed as they would be out of his character and had he said such things, I potentially would have even said something to him concerning these stat[...]

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If Trump hadn't recklessly tweeted an accusation that Obama had his campaign wiretapped, think of what the focus would have been after yesterday's Intelligence Committee hearing would have been. Trey Gowdy's interrogation about leaks about Michael Flynn's conversation with the Russian ambassador would have had more prominent billing. With all the speculation about connections between Trump's campaign and Russia, those leaks are the only law broken that we know about at this moment. We'd hear from Comey that they are investigating connections between the campaign and Russia, but that is mostly old news. And we'd also hear from Comey that Russia's meddling in the election actually had more to do with hurting Hillary's reputation because they thought she was going to win.FBI Director James Comey repeatedly referred to Russian President Vladimir Putin’s personal animus to Hillary Clinton as one of the major motivations in Russian meddling in the 2016 U.S. election during congressional testimony Tuesday.Comey described how Putin “hated Hillary Clinton so much” he developed a preference for President Donald Trump. Comey deployed a sports metaphor, saying, “I hate the New England Patriots, and no matter who they play, I’d like them to lose.”His statements echo the main findings of the Jan. 6 U.S. intelligence community’s report on Russian attempts to undermine the 2016 election. “Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency,” the report’s key judgement found.Comey’s statement and the report’s key judgement contradict major media reports that Putin’s primary aim was to help the Trump campaign, and discount the role of Putin’s feelings regarding Clinton. The FBI director in part deployed his New England Patriots analogy to walk back such accusations.Comey described how Putin’s campaign to denigrate Clinton accelerated after Trump won the Republican presidential nomination, an assertion which is also found in the Jan. 6 report, “Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.”Former President Barack Obama’s ambassador to Russia Michael McCaul confirmed he shared this feeling to NBCNews in December, saying that Putin “has had a vendetta against Hillary Clinton, that has been known for a long time because of what she said about his elections back in the parliamentary elections of 2011.”Russia’s government did not even believe Trump would win the election, by the intelligence community’s own admission, and focused the latter part of its influence campaign towards undermining Clinton’s future presidency.So, to sum up, we learned that the FBI is investigating links between some people connected to the Trump campaign and Russia and that someone illegally leaked that news to the media. We learned that Putin's interest in the campaign wasn't to help Trump but to damage a future President Clinton. That is the story, but it got sidetracked into the cul-de-sac of Trump's tweets.Instead we heard over and over again about how there was no evidence for Trump's stupid tweets about Obama taping Trump Towers. And since Trump will never, ever back down and admit he made a mistake, this story will go on and on. How many news cycles have been lost for Trump due to baseless accusations on Twitter? We're now over two weeks after Trump's first early-morning tweet and there has been absolutely no evidence to support his accusation. The most Trump had was a public reference to Andrew Napolitano's speculation that British intelligence was involved in spying on Trump. So the Trump administration repeated that speculation even though there was no evidence to back up the allegation. But Trump didn't seem to think that there is any problem making baseless charges against an ally's intelligence agency[...]

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So will the Trumpians stop talking about this now?The chairman of the House Intelligence Committee said Sunday there "never was" evidence that former President Barack Obama — or anyone else — wiretapped Trump Tower during the 2016 presidential campaign."If you take the president literally, it didn't happen," Rep. Devin Nunes (R-Calif.) said on "Fox News Sunday." "Was there a physical wiretap of Trump Tower? No, there never was, and the information on Friday continues to lead us in that direction."Or once the accusations get released into the political bloodstream, does it even matter that there is no evidence out there?Michael Goodwin has a good recommendation of what Trump should be saying about wiretaps. It's what Trump should have been saying all along instead of making wild tweets and silly accusations in front of Angela Merkel.As Neil Gorsuch begins his hearing today, it's remarkable how weak the Democrats' attacks against him have been.Democrats cite Hwang v. Kansas State, in which Judge Gorsuch ruled that when a school declined to extend the length of a six-month leave of absence to a teacher who had cancer, the decision did not qualify her for a discrimination claim under the Rehabilitation Act. They also make much of Thompson R2-J School District v. Luke P., in which the court ruled against parents seeking reimbursement for the cost of a private program after they took their autistic son out of public school. But these were correct rulings based on statute and precedent, and they were unanimous rulings joined by liberal judges.Mr. Schumer says that in employment-discrimination cases Mr. Gorsuch “sided with employers 60% of the time.” But judging isn’t a statistical exercise in which perfect impartiality is defined by a 50-50 divide between employers and employed. Among Judge Gorsuch’s 171 labor and employment cases, 89% were unanimous decisions.Democrats want to ignore cases when Judge Gorsuch ruled against corporations and business interests. In 2015 in Cook v. Rockwell, the judge ruled in favor of allowing a decades-long class action over whether the Rocky Flats nuclear-weapons plant had contaminated land with leaked plutonium. In Energy and Environment Legal Institute v. Epel, Judge Gorsuch ruled to uphold the constitutionality of Colorado’s renewable-energy mandate.Democrats are also trying to conjure something nefarious because Judge Gorsuch is friendly with billionaire businessman Philip Anschutz. Well, they do both live in Denver, Judge Gorsuch represented Mr. Anschutz while in private practice, and Mr. Anschutz later recommended him for a federal judgeship.Again, so what? Mr. Anschutz has also been connected to Democratic Colorado Senator Michael Bennet, who was an executive at Anschutz Investment Co. The Denver Post reported in 2010 that family members and Anschutz executives were major patrons of Mr. Bennet. We presume Democrats don’t think that relationship compromised the integrity of Mr. Bennet.If this is all they’ve come up with, Democrats might as well start counting the votes. Judge Gorsuch has been praised by President Obama’s former Solicitor General Neal Katyal, and the judge’s record of skepticism toward executive power is exactly what Democrats might hope for in a Donald Trump appointee. He also has a libertarian streak on criminal law.Some Democrats are making noise about filibustering Gorsuch. That would be a gift to the Republicans. They could use the Democrats' intransigence as a good excuse for nuking the filibuster for Supreme Court nominations. With such a well-respected nominee, Democrats have a hard time being persuasive that he's so extreme that he should be filibustered. Much better for the Republicans to get rid of the filibuster for Gorsuch and then have it gone if there should be another opening.Ilya Shapiro has some recommendations of serious questions that senators could ask Judge Gorsuch this week to get beyond the predicted Kabuki theater of asking questions that the[...]

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Every year the president submits a budget and the opposing party declares it DOA in Congress. Even members of the president's own party will criticize it. I always wonder why anyone would want to be OMB director. They spend their time compiling a budget that ends up angering a lot of people in their own administration because no one likes seeing their department's budget cut. Then they submit a plan or a blueprint of a budget and everyone blasts it and then Congress writes its own budget while ignoring anything they don't like from the president's budget. Who would want that job?With all the sturm und drang over the budget blueprint that the Trump administration put out yesterday, it shouldn't be ignored how little of the budget this impacts.Critics are portraying these domestic cuts as shocking while Mr. Trump is advertising his defense increases as the largest in history. They’re both wrong. The annual federal budget is now more than $4 trillion, so the White House is proposing to shift a mere 1.35% of that to defense from other priorities. That’s it.The proposal does represent a sharp change in priorities after the past eight years when President Obama squeezed defense in favor of domestic accounts. Defense spending has fallen to about 3% of the economy from 4.7% in 2010. Domestic discretionary spending boomed until the GOP Congress began to rein it in after fiscal 2011. The number of full-time equivalent federal employees increased even with the GOP limits to an estimated 2.137 million this year from 1.978 million in 2009.The notion that this is a wholesale, much less cruel, restructuring of the federal government is a fantasy that only Washington would attempt to promote. Take the defense increase, which is welcome but not even close to Ronald Reagan’s buildup.The proposal is a 10% increase over the 2018 budget cap set by the Budget Control Act. But it is only about 3% above what Barack Obama proposed in his final budget as he tried to neutralize the defense issue during the presidential campaign. Most of this money will meet urgent needs in operations and maintenance to keep planes flying and troops trained and moving. A serious defense budget that begins to meet Mr. Trump’s pledge to build a 350 ship Navy will have to start with the fiscal 2019 budget expected in May.As for cutting domestic non-entitlement programs, it’s hard to argue that the federal government couldn’t use a top-to-bottom scrub. Would the American people even notice if the Agriculture and Labor departments had to cut their budgets by 20.7%, or Commerce by 15.7%?Then again, the specific spending proposals are a combination of the sensible and head-scratching. The White House wants to cut $5.8 billion from the National Institutes of Health to $25.8 billion, which is bad policy and puzzling politics. Spending on medical research, especially in this era of biological breakthroughs, is one place where government meets a need the private sector can’t entirely fill. There’s also bipartisan support for NIH, so Congress will spend more anyway.On the other hand, the White House is right to want to save $3 billion by defunding the Community Development Block Grant program at Housing and Urban Development. This is a political slush fund for developers and progressive activists that has spent $150 billion since 1974 with little community development.Mr. Trump is also picking fights with some of his political opponents by proposing to zero out such long-time untouchables as public broadcasting and the national endowments for the arts and humanities. The programs are small relative to the $4 trillion budget, but it’s fair to ask if taxpayers should still have to subsidize PBS in an age with hundreds of cable channels and social-media networks. Every program should have to defend itself against, say, grants for Alzheimer’s research.A good political rule for conservatives is if you’re going to propose cutting a program, you mig[...]