Tuesday, June 27, 2017

Court Restores Trump's Travel Ban as Term Ends

      The Supreme Court ended a strangely incomplete term in dramatic fashion on Monday [June 26] by allowing President Trump's travel ban to take effect despite a string of lower court decisions blocking the controversial executive order.
      In a term with no true blockbusters, the court's decision to substantially narrow injunctions against what Trump described as a "watered-down" ban on travel from six predominantly Muslim countries amounted to a veritable bombshell at the end of the court's final sitting for the term.
      Chief Justice John G. Roberts Jr. ended the business part of the half-hour session by announcing that the court had agreed to hear the government's appeal of two decisions blocking Trump's executive order. The court, he explained, had also voted to stay the injunctions issued by the Fourth U.S. Circuit Court Appeals in a Maryland case and by the Ninth U.S. Circuit Court of Appeals in a suit originally brought by the states of Hawaii and Washington.
      The unsigned, 13-page opinion handed out in the Supreme Court's pressroom as Roberts spoke described the injunctions in Trump v. International Refugee Assistance Project and Trump v. Hawaii as overly broad and unmindful of the government's "interest in preserving national security." As revived by the court on an interim basis, Trump's EO-2 (technically, Executive Order 13780) will bar visas for foreign travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen unless the traveler has "a bona fide relationship with a person or entity in the United States."
      As examples, the unsigned opinion cited relatives of U.S. citizens, students admitted to U.S. schools, or workers with accepted offers of employment. In a dissenting opinion for three conservatives, Justice Clarence Thomas said he would have allowed the executive order to take effect as written and warned that the exceptions would prove to be "unworkable." Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined his opinion.
      The majority opinion was apparently joined by Roberts, Justice Anthony M. Kennedy and the court's liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. The actions on the applications for the stay and the government's petitions for certiorari were taken on the basis of written briefs without oral argument. Surprisingly, none of the Democratic-appointed liberal justices objected to lifting the injunctions issued by the Fourth Circuit on a 10-3 vote [May 25] and unanimously by a three-judge Ninth Circuit panel [May 15].
      Trump issued a somewhat formal, 114-word statement calling the court's action "a clear victory for our national security." But Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project and lead lawyer in the Maryland case, welcomed the court's decision to hear arguments on the ban in the fall following the earlier rulings against it. "The Supreme Court now has a chance to permanently strike it down,” Jadwat said.
      In a term with a modestly liberal cast to several decisions, the conservative bloc appeared to be refortified and somewhat ascendant as the justices prepared for their summer recess. Roberts delivered a resounding 7-2 victory for political and religious conservatives in the term's most closely watched case by easing a provision in Missouri state constitution barring government funds to churches or other religious institutions.
      The case arose in the unlikely context of a state program providing grants to non-profit entities to buy recycled automobile tires to rubberize playground surfaces in the interest of safety. Trinity Lutheran Church in the university town of Columbia applied for a grant for its church-school playground and scored well, but the state's Department of Natural Resources cited the state constitutional provision in rejecting the application.
      Roberts's majority opinion in Trinity Lutheran Church v. Comer found the church's disqualification to amount to religious discrimination in violation of the First Amendment's clause guaranteeing "free exercise of religion." He likened the government's action at one point to faith-based "persecution." Three justices joined Roberts's opinion in full: Kennedy, Alito, and Kagan. Thomas and Gorsuch joined all but a single footnote that limited the decision to "playground resurfacing" without ruling on "religious uses of funding." Breyer also wrote a separate opinion concurring in the judgment on somewhat narrower grounds.
      Sotomayor emphasized a dissenting opinion nearly twice as long as Roberts's by reading substantial portions from the bench. Sotomayor called the decision a "radical" break from historical tradition by holding — "for the first time" — "that the Constitution requires the government to provide public funds directly to a church." She warned that the ruling casts doubt on constitutional provisions akin to Missouri's in 30 states. Ginsburg joined her opinion.
      The case was one of 13 argued before a nine-justice court in April after Gorsuch's swearing in on April 10 on the strength of his 54-45 Senate confirmation. The court issued two other decisions from the April calendar on Monday, with conservatives prevailing in each by 5-4 votes. Thomas's opinion in Davila v. Davis barred death row inmates from challenging their sentences on the basis of ineffective assistance by lawyers in post-conviction proceedings. Kennedy's opinion in California Public Employees' Retirement System v. ANZ Securities refused to allow the big public pension system extra time for a securities-fraud lawsuit after having dropped out of a class action suit to litigate the case on its own.
      The liberal bloc had prevailed with Kennedy's help in some earlier five-vote decisions. Kennedy's 5-3 opinion in Peña-Rodriguez v. Colorado allowed criminal defendants to challenge convictions based on evidence of racist comments in the jury room. Ginsburg wrote a 5-3 decision in Moore v. Texas that instructed the state to update the standards for finding defendants ineligible for the death penalty on the basis of intellectual disability. Roberts gave the liberal bloc a fifth vote in the decision in Bank of America v. City of Miami to allow the city to sue banks under the Fair Housing Act for predatory loans in minority neighborhoods. And Thomas, oddly, provided the pivotal vote in the 5-3 decision in Cooper v. Harris to overturn a Republican-crafted redistricting plan as an improper racial gerrymander because it packed more minorities into legislative districts than needed to comply with federal law.
      Some other closely watched cases transcended the prevalent ideological lines. In a pair of free speech victories, the court unanimously struck down a federal law prohibiting registration of racially disparaging trademarks (Matal v. Tam) and a North Carolina law prohibiting convicted sexual offenders from using social media (Packingham v. North Carolina). And early in the term the court was unanimous in setting aside the $400 million judgment that Apple had won in a patent infringement suit against Samsung, its Korean rival in the smartphone wars (Samsung Electronics Co., Ltd. v. Apple Inc.).
      Court watchers had been waiting on Monday for decisions in three cases argued in December, January, and February. The court issued a limited ruling in Hernández v. Mesa instructing the federal appeals court for Texas to reconsider a suit by the parents of a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol Agent. In two other cases, the court scheduled rearguments in the next term--presumably, because the eight justices were evenly divided in the two immigration-related cases. Gorsuch is thus likely to have the decisive votes in Jennings v. Rodriguez, a case concerning rules for detention of aliens, and Sessions v. Dimaya, a case concerning use of state felony convictions as a basis for deportation.
      The court's final decision day came on a milestone date for LGBT rights advocates. The court's marriage-equality decision in Obergefell v. Hodges was issued on the same date in 2015; the rulings to strike down the Defense of Marriage Act and state anti-sodomy laws also both came on June 26, in 2013 and 2003 respectively. The court took no note of the anniversaries, but it did issue an unsigned, summary 6-3 decision in Pavan v. Smith to require the state of Arkansas to list a lesbian wife along with a child's biological mother on the child's birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing the issue warranted full briefing and oral argument.
      In all, the court issued a record low number of signed decisions in argued cases,  only 61, and nine other unsigned or per curiam opinions, including the interim ruling in Trump; the unsigned ruling in the argued case, Hernández; and six others, including Pavan, issued without oral argument. Among argued cases, 33 were unanimous — or an abnormally high 53 percent.
      In win-loss compilations, business interests prevailed over workers, consumers, or regulators in a majority of cases divided along those lines. That number included Gorsuch's only decision for the term: a 9-0 ruling in Henson v. Santander Consumer USA to somewhat narrow the federal Fair Debt Collection Practices Act. In criminal law cases, defendants or prison inmates won 11 decisions, the government 10. But the federal government won an important 8-0 victory in a closely watched case, Salman v. United States, that somewhat broadened insider-trading law.
      Along with the two cases restored to the calendar for reargument, the court is also carrying over three cases granted early enough for arguments in the current term but postponed — presumably because of fears of an inconclusive 4-4 split. Along with the travel ban case, the court now has 23 cases teed up for arguments when the new term begins on Oct. 2, the traditional first Monday in October. That number includes two cases added on Monday: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery's effort to set aside a state civil rights sanction for refusing to serve a same-sex couple's wedding; and Digital Realty Trust, Inc. v. Somers, a test of the whistleblower provision in the Dodd-Frank financial industry reform law.

Sunday, June 25, 2017

High Court's Free Pass for Constitutional Wrongs

      Justice delayed is justice denied, according to the familiar legal maxim. But worse is for justice still to be denied even after the law's protracted delay. That was the message the Supreme Court gave last week [June 19] to the hundreds of innocent Arab and Muslim immigrants rounded up more than 15 years ago in a post-9/11 frenzy and held for months without charge in prison conditions usually reserved only for the worst of the worst.
      For 15 years, some of these "persons of interest," none of them ever found to have terrorism connections, have fought in federal court to hold the ranking officials responsible for these policies accountable under the Constitution. But the court that proudly promises "equal justice under law" decided instead to give a free pass to former Attorney General John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar.
      The plaintiffs in this still unfinished litigation, represented since 2002 by lawyers from the Center for Constitutional Rights in New York City, asked for money damages from the three federal officials and the warden and associate warden of the federal prison where they were held. As authority, the lawyers relied on a decades-old Supreme Court precedent allowing damage suits against federal law enforcement agents for violations of constitutional rights.
      In blocking the suit against Ashcroft, Mueller, and Ziglar, a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card. When the nation's security is at stake, Justice Anthony M. Kennedy wrote for the court in Ziglar v. Abbasi, federal officials cannot be second-guessing their decisions based on fears of being held financially responsible for violating individuals' constitutional rights. The ruling leaves prison warden Dennis Hasty's potential liability to be reconsidered on remand.
      In dissent, Justice Stephen G. Breyer protested that legal remedies against federal officials may be especially needed when they claim to be acting in times of emergency in the interest of national security. "[T]here may well be a particular need for Bivens remedies," Breyer wrote, referencing the court's 1971 decision, "when security-related Government actions are at issue." Justice Ruth Bader Ginsburg joined Breyer's dissent, but liberal justices Sonia Sotomayor and Elena Kagan had to recuse themselves because of prior involvement with the case respectively as judge on the Second Circuit and U.S. solicitor general.
      The seminal decision in Bivens v. Six Unknown Federal Narcotics Agents (1971) filled a gaping hole in U.S. law. Back at the time of the Reconstruction, Congress passed a law providing that state or local officials could be held liable for violating an individual's constitutional or legal rights "under color of [law]." Written against the backdrop of the defiance of federal officials by southern states, the Civil Rights Act of 1871 included no provision for comparable suits against federal officials for violating individual rights.
      In Bivens, the Supreme Court's 6-3 majority ruled that federal cops, just like state or local cops, could be held liable in federal court for violating an individual's constitutional rights — specifically in the case, for a warrantless search of James Biven's home. "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," Justice William J. Brennan Jr. wrote for the majority.
      Whether surprising or not, Bivens is now in jurisprudential disfavor, as Kennedy explained in the new decision. The court has followed the Bivens' "implied damages remedy" approach in only two subsequent cases, Kennedy noted, and refused in several others. The court in
Davis v. Passman (1979) allowed a Fifth Amendment equal-protection suit against a sitting congressman by the female administrative assistant he fired after deciding he had to have a man in the post. A year later, the court in Carlson v. Green (1980) allowed the mother of a deceased federal prisoner to sue federal prison officials under the Eighth Amendment's Cruel and Unusual Punishments Clause for leaving her son's asthma untreated with tragically fatal results.      The plaintiffs' allegations in what was originally styled as Turkmen v. Ashcroft invoked all three of the Bill of Rights amendments cited in the Bivens trio of cases. For starters, they claimed unreasonable seizures in violation of the Fourth Amendment. They also claimed that they were subjected to severe conditions in prison — sleep deprivation, close confinement, and so on —  because of their religion or national origin in violation of the Fifth Amendment's equal protection requirement. The prison conditions, including unwarranted strip searches and verbal and physical abuse, were alleged to be Eighth Amendment violations.
      All of those well-pleaded allegations left Kennedy and his conservative colleagues, Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr., unmoved. "National-security policy is the prerogative of the Congress and President," Kennedy wrote, not he added for the courts. Breyer countered by pointing to the court's historically wrong decision in Korematsu v. United States (1944) to uphold the wartime internment of thousands of Japanese Americans.
      Four decades later, Congress apologized and provided $20,000 apiece in compensation to the wrongly interned Japanese Americans. For the victims of the post-9/11 dragnet, the Supreme Court offers nothing but Kennedy's caveat that the opinion should not be read to condone the "tragic" treatment that they received. Breyer's apt retort: the court's holding, he wrote, may "diminish[ ]  the compensatory remedy constitutional tort law now offers to harmed individuals."

Sunday, June 18, 2017

In First Opinion, Gorsuch 'Too Cute by Half'?

      The Supreme Court's rookie justice Neil Gorsuch has written his first opinion since taking the bench and the reviews are mostly good. "A superb opinion," gushed legal writing expert Ross Guberman hours after Gorsuch handed down his opinion in a little noticed consumer protection case, Henson v. Santander Consumer USA [June 12]. But hold the applause. On close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.
      News coverage emphasized the new justice's use of alliteration to open a close grammatical dissection of one sentence in a 40-year-old federal law. The federal Fair Debt Collection Practices Act was aimed, Gorsuch tells the reader in his opening paragraph, at such "wayward collection practices" as "disruptive dinnertime calls" and "downright deceit."
      Guberman, who formerly taught legal writing at Yale Law School and now provides paid writing instruction to law firms, courts, and others, gave Gorsuch the newly created 2017 Judicial Alliteration Award for this and a second alliterative phrasing later in the opinion. Steven Mazie, the American Supreme Court correspondent for the British newsmagazine The Economist, mimicked Gorsuch with a tweet. "Gorsuch goes gaga for alliteration in opening line of 1st #SCOTUS op," Mazie tweeted.,
      The National Law Journal's Tony Mauro interpreted Mazie's tweet in his write-up of Gorsuch's opinion as "warm praise." Not so, Mazie now says. "Too cute by half," he told me. Guberman had noted Gorsuch's "breezy" and "jocular" style when the nomination was pending in the Senate. But some detractors in Gorsuch's home state of Colorado are said to have viewed his stylistic flourishes with something like mild disapproval.
      Apart from that issue, Gorsuch departed more significantly in his debut opinion from the established format for Supreme Court majority opinions. Invariably in recent memory, majority opinions open with a short overview of the case followed by Roman numeral-marked sections. Gorsuch's opinion, quite short at barely 10 pages in length, has no such guideposts.
      Michael Gerhardt, an experienced court watcher as law professor at the University of North Carolina, says the use of numbered sections helps both the justices and the legal community. Without that structure, Gerhardt explains, "People would have to work a little harder to follow the reasoning and maybe count the votes." The structure also "makes it easier for justices to specify which sections they join or don't  join," he adds.
      Gorsuch's departure from the customary organization of Supreme Court decisions went unremarked on until a tweet by this writer last week. But a review of the initial majority opinions by Gorsuch's eight colleagues shows that all of them adopted the numbered-section format in their maiden opinions­ — even in decisions that were short and unanimous, just like Gorsuch's debut. (Credit Adam Feldman of Empirical SCOTUS, here, with listing and linking those opinions.)
      Among the current nine, Chief Justice John G. Roberts Jr. and the junior justice Elena Kagan appear to be competing for the title of "best writer" on the Court. In their initial opinions, however, Roberts and Kagan both played it straight: nothing at all breezy apart from Roberts's citation in Martin v. Franklin Capital Corp. (2005) of "no less an authority" than Chief Justice John Marshall. A quick reading of the initial opinions by the six others also finds nothing comparable to Gorsuch's maiden effort to add some writing flair in aid of accessibility.
      Gorsuch's opinion also confirms to some extent the confirmation-fight accusations from Democrats and progressive groups that he favors business interests over consumers or workers. The plaintiffs in the case had accused Santander of engaging in the same kinds of "wayward collection practices" that Congress had in mind when it passed the debt collector law in 1977..
      The specifics of their complaints are missing from Gorsuch's opinion. Instead, he examined in grammar-lesson style the question of whether Santander, which bought the plaintiffs' defaulted car loans from CitiBank's auto financing arm, met the statutory definition of "debt collector." The law's definition: anyone who "regularly collects or attempts to collect . . . debts owed or due . . . another." Santander, Gorsuch reasoned, was collecting debts for itself, not for "another."
      Among eight federal courts of appeals to consider the question, five had ruled that a debt purchaser such as Santander was indeed a "debt collector." In adopting the narrower reading of the law, Gorsuch followed the approach of his dissent in the infamous Frozen Truck Driver case. In that case, he narrowly read a federal trucker safety provision as inapplicable to the discharged driver's decision to leave his inoperable rig on the roadside and drive in subzero temperatures to a heated service station.
      As in that earlier case, Gorsuch turned a close question of statutory construction into a civics lesson, this time with eight other justices concurring. The advent of the debt purchasing industry was a changed circumstance since 1977, Gorsuch acknowledged. But he refused to consider whether Congress would have intended to include them as debt collectors under the law. "It is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that . . . it never faced," he wrote.
      For conservatives, this kind of obtuseness counts as respect for the Constitution's separation of powers. But others may rightly ask whether the more faithful reading of arguably ambiguous statutory text would seek to apply the evident congressional intent that the law itself reflects.

Saturday, June 10, 2017

Trump's Offenses Far Worse Than 'Obstruction'

      President Trump is unlikely to be indicted and even less likely to be impeached for obstruction of justice for hoping that FBI director James Comey could go easy on Trump's friend and good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be sure, Comey's account of the Feb. 14 Oval Office conversation with Trump, combined with the conspiratorial trappings of the talk and Trump's later firing of Comey, make out an indictable case that Trump "corruptly" sought to impede a pending federal "proceeding."
      Parsing Trump's words that carefully, however, is off-point by a country mile, somewhat akin to checking Al Capone's tax returns to see whether the bootlegger-mobster had run afoul of federal law. Trump's "high crimes and misdemeanors" are far worse than anything spelled out in 18 U.S.C. §1505, according to panelists at the American Constitutional Society's annual convention in Washington on Friday [June 9].
      Trump's actions in office and before are not merely "unconstitutional," according to Duke law professor Neil Siegel, but worse: "anti-constitutional." Siegel and fellow panelists in the progressive group's featured program listed the many ways in which Trump as candidate and now as president has stomped on and ground into the dirt unwritten constitutional norms that are essential to U.S. democracy. "We have a president who doesn't believe in democracy," Stanford law professor Pamela Karlan remarked.
      Karlan started her bill of particulars with Trump's threat during the campaign to jail his opponent, Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled Trump's infamous reply that he would accept the results of the election only if he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated claims actually to have won the popular vote because of more than 3 million votes illegally cast for his opponent. And then, in pursuit of the nonexistent evidence, the president created a commission stacked with voting rights opponents aimed at making it harder, not easier, to cast ballots in the ultimate hallmark of a working democracy.
      Worst of all of his offenses, according to Slate's legal affairs columnist Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has been so fundamentally dismantled is the norm of truth," Lithwick remarked. In this view, Trump's assault on the media and his assault on the courts are part of a common strategy of seeking to delegitimize independent institutions capable of challenging Trumpian alternative facts, like the size of the Inauguration Day crowd or the content and purpose of the Muslim travel ban.
      None of these offenses will be found in title 18 of the U.S. Code, but the Framers appear to have been thinking in broad rather than legalistic terms in providing for impeachment of federal officials, including the president. In Federalist Nos. 65 and 66, Jay and Hamilton refer to "corruption" and "treachery" as grounds for impeachment, all-encompassing terms that might equally be rendered as "malfeasance" in office. "If you have enough of that," Seigel said of Trump's norm-breaking conduct, "maybe it's grounds for impeachment."
      The definition of an impeachable offense depends not on an academic debate about the Framers' intentions but on the political will of the House of Representatives. With a Republican majority dependent on the good will of the Republican base, the current House is unlikely to consider impeachment — not unless Trump's Mendoza-line approval ratings seriously jeopardize the members' own election chances.
      With impeachment off the table for now, indictment has a natural appeal to the #NotMyPresident crowd, but it is likely no more than a pipe dream. For starters, many legal scholars and experts believe that impeachment, not criminal prosecution, is the sole remedy against presidential misconduct. Oddly, the argument depends on an unwritten constitutional norm. ''The Framers implicitly immunized a sitting president from ordinary criminal prosecution,'' the Yale law professor Akhil Reed Amar remarked recently to the New York Times's Adam Liptak.
      Harvard's Alan Dershowitz has been making a separate argument specifically against an obstruction charge. As president, Trump has the power to direct the executive branch, Dershowitz argues, including the power to call off a law enforcement investigation or to fire a noncompliant FBI director. By analogy, Dershowitz cites the president's pardon power, exercisable at his sole discretion. Yet Dershowitz's argument proves too much: surely a pardon-for-cash scheme would be either indictable or impeachable or both.
      In the most recent full rehearsal of the arguments, a rising legal academic has given his thumbs-up to a possible indictment in a post on the Trump-watching blog Take Care. Writing in advance of Comey's testimony to the Senate Intelligence Committee, Andrew Manuel Crespo, an assistant professor at Harvard Law School, found no bar to charging Trump with obstruction of justice. If special counsel Robert Mueller were to seek an indictment, Crespo wrote, "he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."
      Perhaps, but a prosecutor might want a stronger case before testing those bounds. For now, the rule of law that Trump so threatens may depend not on Congress or the courts, but on "we the people" ourselves. "A republic if you can keep it," Benjamin Franklin cautioned after helping write the Constitution in the fateful summer of 1787.  "We've lost our way," ACS panelist Siegel remarked, "and we need to find our way back." The path is by no means clear.

Saturday, June 3, 2017

In Bias Cases, Gorsuch Subpar for the Course

      Senate Democrats and their progressive advocacy group allies tried but failed to block Neil Gorsuch's confirmation as Supreme Court justices by accusing him of being insensitive to workers' and consumers' rights. They used as exhibit number one the case of the frozen trucker fired for leaving his rig behind rather than wait for emergency help in subzero weather. They also faulted several of Gorsuch's decisions or dissents that they said reflected insensitivity to racial or other forms of discrimination.
      Now, two law professors well versed in employment law cases are showing that Gorsuch's record, as depicted by his opponents, is just about par for the course. In their new book Unequal: How America's Courts Undermine Discrimination Laws, authors Sandra F. Sperino and Suja A. Thomas document the ways that federal judges have dashed the hopes embodied in federal civil rights laws for equal opportunity in U.S. workplaces nationwide.
      Starting from laws that have many built-in advantages for employers, judges have made it that much harder for workers complaining of discrimination by a set of procedural hurdles and substantive rulings narrowing the definition of discrimination. "Courts have limited the scope of discrimination law by refusing to call lots of conduct discrimination," Sperino and Thomas write.
      Gorsuch's record, as depicted by the progressive Alliance for Justice, fits this description like a glove. From Gorsuch's 10 years on the Tenth U.S. Circuit Court of Appeals, the group pulled half a dozen in which Gorsuch voted usually in the majority and once in dissent against job discrimination claims under Title VII of the Civil Rights Act.
      In separate sex discrimination cases, for example, Gorsuch voted once in the majority and once in dissent to keep the plaintiff's claims from juries. In two others, Gorsuch voted against giving plaintiffs the benefit of subsequent favorable Supreme Court precedents with the majority. Three of the cases included retaliatory discharge claims: complaints that the Supreme Court has said are important to enforcing anti-discrimination laws but that Gorsuch dismissed in each of the cases.
      The record "demonstrates a repeated pattern of siding with corporations over individuals trying to assert their rights under anti-discrimination laws," the Alliance for Justice report stated. "Judge Gorsuch routinely refuses to allow cases to go to a jury even when there are material disputes of fact about the circumstances surrounding an adverse employment action."
      Sperino, a law professor at the University of Cincinnati, and Suja, a law professor at the University of Illinois, have found a bookful of cases like these going back over decades. In side-by-side summaries, for example, they recount two sexual harassment claims that judges blocked from going to juries, each of them backed up with a dozen or so particulars. In one, an appellate court upheld the dismissal of the female employee's case because her male supervisor touched her only three times. In the other, the trial judge rejected a male employee's claim against his male supervisor even though the supervisor made two or three sexual remarks per day over a 10-day period.
      Race-related claims are also susceptible to dismissals even in the face of seemingly blatant evidence of racism. An appellate court threw out jury verdicts in favor of two African American employees with an opinion that dismissed supervisors' references to them as "boy" as "not probative of racial animus." Suja, it should be noted, is a strong defender of the jury system, as set out at length in her book published last year, The Missing American Jury.
      Sperino and Suja open the new book by noting that federal employment discrimination laws were not designed for plaintiffs as much as for employers. To start, Title VII requires a plaintiff to go first to the Equal Employment Opportunity Commission (EEOC) rather than straight to court. In addition, the law sets a very short 300-day statute of limitations for bringing a complaint — in contrast to the two-year deadline common for other personal injury suits. And the law sets limits on damages, unique to employment discrimination cases.
      A cobweb of court-created doctrines tilts the playing field further in employers' favors. Courts allow employers to explain racist or sexist comments as "stray remarks." A supervisor who hires an employee may be absolved of a later accusation of discrimination by the "same-actor inference." Some judges even reject discrimination claims if the employer can show an "honest belief" that the complained-of adverse action was not infected with prejudice.
      Sperino and Suja do not mention Gorsuch in their book nor do they name names of any of the judges they fault for undermining discrimination laws. They do note, however, that the federal judiciary is far less diverse than juries or the U.S. population at large. They cite a study that found that judges grant 70 percent of summary judgment motions filed by employers. Another found that plaintiffs' verdicts in discrimination cases are more likely to be reversed on appeal than verdicts in other kinds of civil cases.
      As Sperino and Suja tell the story, the Supreme Court has been less unfriendly to discrimination claims than the lower courts. In that case, Gorsuch's vote may not matter that much. Indeed, they close with a laundry list of semi-technical changes that Congress could enact to ensure courts give discrimination claims a full and fair hearing. In Trumpland, however, workers with discrimination claims are quite likely to remain forgotten.

Monday, May 29, 2017

At White House, Urgent Calls to Lawyer Up

      Trump was home alone, in the residence, tired of cable news and surfing around for one of those old movies that made America great. How the West Was Won: perfect. But then came one of those lawyer commercials. "If you have a phone, you have a lawyer."
      Then, it hit him: I have a phone! I need a lawyer! Sure, Trump said to himself, Don McGahn is White House counsel. He's a good man, but he keeps telling me what I should do instead of letting me do what I want to do. I'm calling Marc Kasowitz: he's been with me all these years, through the divorce, the bankruptcies, the Trump University fake lawsuit, on and on. Him, I can trust. Just like my friend Mike Flynn.
      Thus Kasowitz was brought in to head an outside legal team to help with the Russia investigations that are swirling ever more ominously around the White House. Not just the White House: now it's Jared too. Good son-in-law. Done nothing wrong. Fake news. But McGahn says he can't help. Bad precedent. White House counsel can't give away 'get out of jail free' cards to everybody.
      The Washington Post reports that Trump is looking at others to beef up the team: maybe Ted Olson, maybe Paul Clement. Surely, they understand that everyone's entitled to legal representation in this country. But already on the blogosphere some nigglers are suggesting that Olson and Clement have nothing to gain with this brief — and a lot to lose, like their reputations.
      Lawyering, it turns out, has been one of the Achilles' heels of this administration, now just past the 125-day mark. Yes, the Justice Department lawyers put up a good fight, but federal appeals courts appeared to have blocked the president's signature policy achievement of his first full week in office: Executive Order Protecting The Nation from Foreign Terrorist Entry Into The United States.
      The courts blocked the first version. Muslim ban, they said. "We all know what that means," Trump said as he signed the order. Apparently, yes, the so-called judges did.
      After the courts blocked the first version, Team Trump worked with the lawyers on a revised version. Significant tweaks. The new version exempted green-card holders —  lawful permanent residents, in legal speak. It also gave immigration officers discretion to waive the ban. And the lawyers added six paragraphs of "findings" to explain why these six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Again, the nigglers. Why not Saudi Arabia, they asked, since that's where the 9/11 hijackers came from?
      Despite all that lawyering, the courts still aren't buying it. The old saying is right: You can put a dress on a pig, but it's still a pig. The Fourth U.S. Circuit Court of Appeals, sitting en banc in Richmond, Va., came out with a 10-3 decision blocking Executive Order 2.0. More than 200 pages of opinions less than three weeks after oral arguments. The majority stopped just short of calling the president a liar.
      Trump takes note, of course, that the 10 judges who ruled against him are all Democratic appointees and the three on his side are Republicans. He thinks back to something Gorsuch said. "There are no Republican judges; there are no Democratic judges." Well, Trump thinks, he was half right. There are no Democratic judges for the next four years: that's for damn sure.
      Sessions is quick out of the box with one of those boilerplate responses: disagree strongly, you betcha. Will appeal, of course. At the Supreme Court, Gorsuch could be the fifth vote that the White House needs to reverse the ruling.
      Justice Neil Gorsuch is exhibit number one for Trump's accomplishments at the 125-day mark. Oddly, however, Team Trump had very little to do with it. Supreme Court vetting was turned over to the Federalist Society back in the campaign. Twenty candidates on the list: all of them Republican judges, naturally. All good candidates, but Gorsuch was head and shoulders above any of them. Look at those credentials: better even than Garland's, he muses.
      Once Gorsuch was nominated, it was McConnell's job to get him through. And he did: the Democrats came close to blocking him, but close doesn't count except in horseshoes. The Democrats decided to dare the Republicans to change the Senate rules to get him confirmed. Republicans took up the dare. Republicans won't need 60 votes next time either.
      Lawyering, of course, was never Trump's forte. Dealmaking was: The Art of the Deal was a best-seller: it was yuge. As for dealmaking, however, nothing yet to crow about. "Repeal and replace Obamacare" is stuck in the Senate; Ryan got that through the House, but McConnell says he doesn't know where he gets 50 votes, much less 60. As for the tax reform bill: not yet written. Why can't they just pass my talking points, Trump asks himself. This place really is a swamp.
      And the wall? Now Trump frets that he's being told some of it will be on private property. That means eminent domain lawsuits. They think that scares me, he says to himself. Real estate litigation is right up my alley, he assures himself. Just hire some more lawyers.

Saturday, May 20, 2017

As White House Counsel, McGahn Seen Failing in Role

      Rod Rosenstein took a major hit to his previously unblemished reputation by lending support as deputy attorney general to President Trump's decision to fire FBI director James Comey. Now, a lawyer who works right outside Trump's office is similarly taking hits to his admittedly somewhat checkered reputation. Don McGahn, Trump's pick to be his White House counsel, is now being blamed for what a wide range of legal observers are calling the ethical and legal disarray in the Trump presidency.
      McGahn now serves in the same behind-the-scenes role that John Dean occupied in the Nixon White House and used to warn Nixon, in vain, about the "cancer" on his presidency. Like Dean before him, McGahn has a client with a tin ear as to ethics and conflicts issues. Even so, legal observers say McGahn has to bear responsibility for such seemingly avoidable missteps as the delayed firing of Michael Flynn as national security adviser and the clumsy explanations for Comey's dismissal.
      "So much of what’s gone wrong in the Trump administration . . . might have been prevented by some good lawyering up front," reporter Jenna Greene wrote in a story for the on-line legal publication Litigation Daily with the provocative headline "The Case for Giving White House Counsel Don McGahn the Boot" [May 18]. "The president, no doubt, is an extraordinarily difficult client," Greene added, "but McGahn doesn’t seem willing or able to rein him in."
      McGahn came to the post as an expert on campaign finance and election law based in part on a combative five years as a Republican appointee to the Federal Election Commission (FEC). Back in private practice with the well-connected D.C. law firm Jones Day, McGahn gained entree into Trump's inner circle by becoming one of the first high-profile Washington lawyers to join the campaign. McGahn was credited with playing an important role in blocking efforts to block Trump from the ballot in New Hampshire's first-in-the-nation presidential primary early in 2016.
      As White House counsel, McGahn fits a Trumpian model of high-level appointments. For secretary of education, Trump picked Betsy DeVos, a sharp critic of public education as a leader of the school-choice movement. To head the Environmental Protection Agency, he named Scott Pruitt, an opponent of EPA policies as a former Oklahoma attorney general.
      At the FEC, McGahn had a reputation of being rude and abrasive to staff and even to fellow commissioners and worked single-mindedly to weaken or dismantle campaign finance restrictions. Ann Ravel, a Democratic appointee to the FEC after McGahn's term had ended, commented to Greene that she found McGahn's appointment as White House counsel "shocking." "His record indicates that he’s not particularly concerned about conflicts or ethics issues," Ravel told the reporter.
      As early as mid-February, Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel during part of President George W. Bush's second term, was blaming McGahn for some of the White House problems. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith, now a professor at Harvard Law School, wrote in a post for the middle-of-the-road legal blog Lawfare.
      Within the past week, the New York Times strengthened the critique by disclosing that McGahn was informed on Jan. 4 that Flynn, who was already functioning as Trump's national security adviser, was under an FBI investigation for his contacts with the Russians during the campaign and his work as a paid lobbyist for the Turkish government. Matthew Miller, a Justice Department spokesman in the Obama administration, responded critically to the information in an appearance on CNN. "If you were under an FBI investigation," he said of Obama administration personnel policies, "you couldn't get hired as a staff assistant, much less national security adviser."
      Once Flynn's role emerged into headlines, the White House used McGahn, just as it was to use Rosenstein later, to try to defend its actions--in this case, the failure to fire Flynn immediately after learning that Flynn had lied to Vice President Mike Pence about contacts with Russians. "The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue," press secretary Sean Spicer said at a briefing.
      Accepting that account, Goldsmith wrote in his blog post that McGahn had failed in his role. "The legality of Flynn’s actions was not McGahn’s call to make," Goldsmith wrote, "and if McGahn were properly carrying out his responsibilities to ensure lawful action in the White House and to minimize law-related political damage to the President, he would have acted differently."
      Goldsmith's critique was noted in an unflattering profile by reporter Nancy Cook in Politico in February. “McGahn will embolden Trump,” an unnamed former FEC official told Cook. “He is not going to be a truth teller. He’s going to be an enabler.”
      Rosenstein, the former federal prosecutor and Justice Department official, salvaged some of his reputation last week by appointing former FBI director Robert Mueller as special counsel to investigate "Russiagate." McGahn's reputation is likely to suffer more hits as his role draws more attention. He can protect his reputation, if at all, only by showing more moral courage than he has to date in telling a wayward president to try to straighten up.

Saturday, May 13, 2017

Trump's Arrogance, Deceit Fuel Constitutional Crisis

      President Trump's decision to fire FBI director James Comey was a calculated act of constitutional arrogance and political deceit: lawful on the surface but deeply damaging to the rule of law and possibly criminal or impeachable as an obstruction of justice.
      Trump's extraordinary comments to NBC's Lester Holt [May 11] make clear that he fired Comey in an attempt to truncate the FBI's investigation of possible collusion between his presidential campaign and Russian agents interfering with the U.S. election. Seemingly oblivious to the damning implications. Trump acknowledged to Holt that he had planned to fire Comey without regard to the pretext that he had arranged by ordering up a recommendation from the nation's two highest law enforcement officials at the Justice Department.
      Attorney General Jeff Sessions and deputy attorney general Rod Rosenstein are two of the collateral damage victims of Trump's deceit. Sessions' letter recommending Comey's dismissal violated his pledge during his Senate confirmation process to recuse himself from all investigations of the Trump campaign. Any self-respecting senator on either side of the aisle should rise in indignation and demand at the least an investigation of Sessions' action by the department's inspector general.
      Sessions had been damaged goods already given his false testimony to the Senate Judiciary Committee that he had never met with Russian officials as a Trump surrogate during the presidential campaign. Rosenstein, on the other hand, had an unblemished reputation as a U.S. attorney in Maryland that gained him Senate confirmation on a 94-6 vote for the Justice Department's second-ranking position.
      Presciently, however, the six Democratic senators who voted against Rosenstein's confirmation were troubled by his balking at a promise to appoint a special prosecutor for the Russia probe. Now, he has allowed himself to be co-opted into the president's plot to thwart the investigation.
      Rosenstein affixed his signature—and his reputation—to a slap-dash letter listing Comey's missteps that exaggerated the damage to the FBI's reputation and that ignored the inspector general's pending investigation of Comey's actions. As the always thoughtful Benjamin Wittes wrote on Lawfare, "Rosenstein was tasked to provide a pretext, and he did just that." Wittes's recommendation sums up the difficult choice Rosenstein now faces: appoint a special prosecutor and then resign.
      Trump also threw press secretary Sean Spicer and deputy press secretary Sarah Huckabee Sanders under the bus by letting them spin the press -- and the public -- on the basis of palpably false talking points. CNN ran a devastating compilation of sound-bites from Vice President Mike Pence, Spicer, and Sanders, all using the identically phrased description that Trump "took the recommendation of the deputy attorney general" in firing Comey.
      Deviously, Trump soiled Comey's reputation further by claiming in his own letter that the FBI director had personally assured him not once but three times that he himself was not under investigation  As Trump depicted the most specific episode, Comey asked for a dinner meeting because he wanted to keep his job and gave the assurance when the president asked.
      The account strains credulity. It is far more plausible, as those close to Comey recounted, that the president asked for the meeting and Comey felt obliged to accept. In any event, the meeting and the subsequent telephone conversations breached Justice Department protocols regarding pending investigations--and the claimed assurances, if given, all the more.
      In the wake of all these disclosures, legal experts mulled whether the president had committed an obstruction of justice, as broadly defined in federal law. To begin, it must be conceded that despite the fixed 10-year term for the FBI director, the president had the authority to fire Comey with or without cause. The post-Watergate tenure provision was designed more to limit the FBI director's power than the president's.
      On the surface, however, Trump's actions seem to fit the wording in 18 U.S.C. §1512, which makes it a crime if someone corruptly "obstructs, influences or impedes any official proceeding." The practical obstacles to such a charge would be daunting, according to a survey by Charlie Savage, the New York Times's Pulitzer Prize-winning correspondent who has been dogging presidential abuses since George W. Bush's years in the White House. The Justice Department is unlikely to bring the charge, Savage noted, and proof of motive would be very hard to prove in any event.
      With criminal prosecution improbable, critics and experts naturally turned to impeachment. Trump's description of the Russia probe as "a made-up thing" has echoes of the Nixonian description of Watergate as a "third-rate burglary." Trump's conduct seems to fit the wording in the first article of impeachment against Nixon that he has "prevented, obstructed, and impeded the administration of justice." Harvard's distinguished constitutional law expert Laurence Tribe was perhaps the most prominent expert seen to be tweeting that it was not too early to consider impeachment as the constitutional remedy for Trump's abuses in office.
      Impeachment is beyond the realm of possibility, however, unless House Speaker Paul Ryan and Senate majority leader Mitch McConnell decide to put country over party and stand up against the president. Trump remains popular with his minority political base even as a majority of Americans strongly disapprove his performance, according to the most recent poll. The path out of what amounts to a genuine constitutional crisis—a president who respects neither the law nor the truth—is nowhere in sight.

Sunday, May 7, 2017

Banks May Pay for Ravaging Minority Neighborhoods

      The nation's big banks got by mostly scot-free for the harm they did to the nation's economy and in particular the housing market leading up to the Great Recession of 2007-08. But the Supreme Court cleared the way last week [May 1] for the nation's cities to hold the banks at least somewhat accountable for the particular harm they did to minority homebuyers and the boarded-up minority neighborhoods left behind after waves of foreclosures.
      The Supreme Court's decision in Bank of America v. Miami clears the way for the city of Miami to use the Fair Housing Act to try to recover damages from BofA and Wells Fargo for financial losses the city blames on the banks' policies of targeting predatory mortgage loans to African American and Latino customers. The city's complaint, yet to be tested at trial, includes statistics and whistle-blower affidavits substantiating the banks' practices of steering minority homebuyers to mortgages with less favorable terms than those offered to white customers.
      The banks made money on the loans and then ended up with the houses by foreclosing on the properties when the would-be homeowners, predictably, defaulted on the lender-friendly mortgages. Miami was one of several big cities that claimed that boarded-up minority neighborhoods cost them property tax revenue and added to the cost of providing law enforcement and other municipal services. Two cities have won seven-figure settlements in such cases, but Miami's prospects in an eventual trial are uncertain.
      The racial discrimination was both more subtle and more pervasive than was practiced in the bad old days. Back before the Fair Housing Act was enacted in 1968 and still afterward, real estate agents helped create and maintain residential segregation in cities and suburbs alike simply by steering black clients away from white neighborhoods.
      The Fair Housing Act had been on the books for only a decade when the Supreme Court first confronted the question whether a city could use the law to sue real estate agents for financial losses attributable to residential segregation. The court answered in the affirmative in Gladstone, Realtors v. Village of Bellwood (1979) by broadly construing the statutory terms allowing any "aggrieved person" to sue for damages if "injured by a discriminatory housing practice."
      Bellwood, a tiny village in the Chicago suburbs, joined individual plaintiffs in suing two real estate firms that housing "testers" had shown to have been practicing racial steering. The court's 7-2 decision went so far as to allow suits by the individual testers even though they were gathering evidence and not actually looking for apartments. In its complaint, Bellwood claimed that the practices were lowering property values and robbing the village of racial balance and stability.
      Writing for the majority, Justice Lewis F. Powell Jr. accepted the village's standing to sue the two firms for damages. "A significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and provide services," Powell wrote. "Other harms flowing from the realities of a racially segregated community are not unlikely," he added.
      In the new case, Justice Stephen G. Breyer led a 5-3 majority in relying on the Bellwood decision to uphold Miami's effort to sue the two banks. Miami's claimed injuries, he wrote, "arguably fall within the FHA's zone of interests, as we have previously interpreted that statute." Breyer's opinion was joined by Chief Justice John G. Roberts, who assigned the opinion to Breyer as the senior justice in the majority, and Breyer's three liberal colleagues: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., dissented on the point.
      The justices were unanimous, however, in tightening somewhat the burden of proof that Miami will have to meet to prevail at trial. Breyer said that the Eleventh U.S. Circuit Court of Appeals had been too lax in allowing Miami to recover for any "foreseeable" losses. Instead, Breyer said, the city would have to show "some direct relation" between the banks' practices and the claimed losses. In his dissenting opinion, Thomas said that Miami's allegations were "extremely attenuated" and predicted that the city could not meet the "rigorous" standard laid out in Breyer's opinion.
      The banks both issued statements vowing to defend the suits and predicting eventual vindication. For his part, civil rights lawyer Robert Peck, who argued Miami's case at the Supreme Court, said he was confident that Miami could meet the causation standard. Peck will be arguing an appeal by the city of Los Angeles later this month seeking to reinstate a similar suit ordered dismissed by a district court judge.
      Erwin Chemerinsky, a leading liberal academic and dean of the University of California-Irvine School of Law, called the ruling "an important victory for civil rights." It is a measure of the court's retreat on racial justice that the justices reaffirmed a 7-2 decision only by a narrower 5-3 vote and only with an 8-0 burden of proof ruling casting some doubt on the city's eventual claims. But Amanda Kellar, general counsel for the International Municipal Lawyers Association, predicted cities would succeed in making banks pay. "There's plenty of evidence," Kellar said, "that discriminatory lending practices not only caused devastating losses to individuals but also had concrete effects on municipalities."


Sunday, April 30, 2017

Under Trump, Stock Market Up, Justice Index Down

      The Trump presidency has marked its 100th day with the stock markets up, but the justice index sharply down. The markets may have fallen victim to premature exuberance over the cloudy prospects for tax breaks for the well-to-do and regulatory relief for business and industry. But justice advocates are rightly troubled by all the steps the administration has already taken and seems intent on pursuing to set back the cause of equal rights and social justice both at home and abroad.
      A word first about the Trump stock market bubble. The S&P index closed on Friday [April 28] up 5 percent from its setting on Inauguration Day, Jan. 20. Among post-World War II presidents, that gives Trump bragging rights over all but two: Kennedy and Bush41, who saw the market rise 9 percent in 1961 and almost 8 percent in 1989 respectively. The market fell 5.5 percent in Bush43's first 100 days, according to data from CNBC; it rose 2.8 percent in Obama's first 100 days and then another 18.7 percent over the next six months as Obama's policies helped lift the country from the Great Recession.
      The current stock market gains mean very little for the supposedly forgotten white working-class voters who gave Trump the margin for his Electoral College victory in a few battleground states and who depend on wages and salaries to earn a living. The fragmentary tax plan released by the White House on Wednesday [April 26] confirms the hopes of Trump's better-heeled supporters for lower tax bills for the rich and for corporations and dashes any hopes for significant tax breaks for middle- and lower-income taxpayers.
      To date, Trump has done little for the economically stressed middle-class workers he promised during his campaign to help, apart from photo-op announcements of supposedly saving factory jobs. And in a telling policy move on Trump's first full day in office the  Department of Housing and Urban Development reversed an Obama administration decision that would have lowered mortgage insurance premiums on loans insured by the Federal Housing Administration. FHA-insured loans are popular among first-time homebuyers and those with poor credit; they stood to save hundreds of dollars a year under the policy quietly jettisoned by Trump's HUD.
      On issues more directly related to law and justice, the administration has been anything but quiet in instituting policies or signaling future moves to set back criminal justice, LGBT rights, voting rights, immigrant rights, and human rights abroad. The setbacks for justice policies come as no surprise given Trump's selection of the conservative Alabama senator Jeff Sessions as attorney general to head what, it must be remembered, is called the Department of Justice.
      Sessions has echoed the president's inaugural address warning about the supposed "carnage" in American cities, inciting public support for punitive anti-crime policies even with the crime rate at historically low levels. In perhaps the most distressing and least justifiable of his policy moves, Sessions has scaled back the Justice Department's oversight of local police departments. Sessions called the kinds of investigations that brought court-monitored, agreed-upon reforms to such troubled cities as Baltimore and Ferguson, Mo., as part of a war on police. He directed a review of the existing consent decrees in nearly two dozen cities and stalled work on future agreements.
      As attorney general, Sessions has also echoed Trump in unsubstantiated warnings about voter fraud, thus attempting to shore up the dubious rationales for stricter voter ID laws even as federal court challenges proceed. In the highest-profile of such cases, the department under Sessions switched its previous position that Texas was guilty of intentional racial discrimination in enacting its strict voter ID law in 2011. Private plaintiffs fortunately are still pressing the claim, which could result in reinstituting preclearance requirements for any Texas voting law changes.
      Sessions also played a decisive role in reversing another Obama administration policy: the Education Department's directive to local school districts to allow transgender pupils to use restrooms and locker facilities corresponding to their gender identity. Reportedly, Sessions had to prevail on a reluctant Education Secretary Betsy DeVos to reverse the Obama administration policy guidance broadly interpreting the sex discrimination law known as Title IX to encompass gender identity. The move caused the Supreme Court to back away from a ruling in a transgender rights case, Gloucester County School Board v. G.G., by sending the case back to a federal appeals court to take account of the new Trump administration policy.
      The Justice Department was also tasked with defending two of Trump's most legally dubious moves. So far, federal courts have rejected Trump's first and second "travel ban" executive orders that amounted to thinly disguised Muslim bans as Trump had called for in his campaign. A federal judge in San Francisco last week also rejected the executive order Trump issued in his first week threatening to cut off federal funds to so-called "sanctuary cities" that resist being commandeered into enforcing federal immigration law.
      Trump's most concrete legal accomplishment, of course, has been his appointment of the committed conservative Neil Gorsuch to the Supreme Court. In 13 oral arguments over the past two weeks, Gorsuch gave court watchers no reason to doubt his future alignment with the court's conservatives in pro-law enforcement positions in criminal cases and pro-business stances in regulatory and civil justice cases. Even without recorded votes, Gorsuch evidently saw no need to tighten Supreme Court review of death penalty procedures as the justices allowed to go on an unseemly execution spree over the past two weeks.
      Far from concerned about these issues, Trump signaled his confidence in administration policies and U.S. standing in the world by proclaiming May 1 to be Loyalty Day. "The United States stands as the world's leader in upholding the ideals of freedom, equality, and justice," Trump declared. However true or not in years past, that claim rings hollow indeed as his administration moves past the 100-day milestone used to judge previous presidents.

Friday, April 21, 2017

Judges' Role in Death Cases Curbed as Sotomayor Urged

      Justice Sonia Sotomayor can now take a bow for significant reforms in death penalty cases in two of the states with among the highest number of executions since capital punishment was reinstituted in 1976: Alabama and Florida.  Those two states were until recently the only two where judges in recent years could and actually did impose death sentences even after juries voted for life or long prison sentences instead.
      Both states have now enacted laws eliminating judges' power to impose a death sentence except based on factual findings or recommendations from a jury. Alabama's new governor, Kay Ivey, signed a bill repealing the state's judicial override procedure earlier this month [April 11] just one day after taking over following the resignation of her sex scandal-plagued predecessor, Robert Bentley.
      Florida changed its law in March 2016 to eliminate a judge's power to impose a death sentence without input from the trial jury. The change came three months after the Supreme Court ruled in Hurst v. Florida that the state's procedure ran afoul of a decade-long line of precedents generally limiting a judge's power to make factual findings needed to increase a defendant's sentence.
      Sotomayor authored the 8-1 decision in the Florida case, but she had first spoken out against judge-imposed death sentences in an Alabama case two Supreme Court terms earlier. In Woodward v. Alabama, Sotomayor wrote an impassioned dissenting opinion
from the court's refusal in November 2013 to consider an Alabama death row inmate's challenge to the judicial override procedure.
      A judge had sentenced Mario Dion Woodward to death for the killing of a Montgomery police officer, but in the face of an 8-4 jury recommendation that he be spared the death penalty and sentenced to life imprisonment instead. In her opinion, Sotomayor noted that Alabama was the only state within the previous decade where judges had actually imposed death sentences in the face of contrary verdicts.
      Alabama judges had actually made somewhat frequent use of this power, Sotomayor noted. She listed in an appendix the 95 defendants sentenced to death by Alabama judges after contrary sentencing recommendations by juries. By contrast, Alabama judges had overridden jury-recommended death sentences only nine times. And Sotomayor pointed out that the number of judge-imposed death sentences appeared to spike in election seasons. One judge, she noted, had noted in his campaign literature the six defendants he had sentenced to death, including one that the jury had recommended be given a life sentence instead.
      Sotomayor was joined in her dissent by Justice Stephen G. Breyer, but not by the court's other two liberal justices: Ruth Bader Ginsburg and Elena Kagan. She acknowledged in her opinion that the Supreme Court had previously upheld Florida's judicial override procedure in capital cases.
      Florida had once led the nation in what Sotomayor called "life-to-death overrides," with 89 in the 1980s compared to 30 in Alabama and six in Indiana. By the 1990s, Alabama had taken the lead with 44 compared to 26 in Florida and four in Indiana. After 2000, Alabama stood alone with 26 life-to-death overrides; in the only other case, in Delaware, the judge-imposed death sentence was reduced on appeal to a life term.
      Sotomayor achieved her goal in March 2015 when the court agreed to hear a new Florida case challenging that state's judicial override procedure in capital cases. The case was argued early in the new term, in October 2015, and ended with a nearly unanimous decision overruling the previous decisions upholding Florida's procedure. "Time and subsequent cases have washed away the logic of [the earlier decisions]," Sotomayor wrote. As the lone dissenter, Justice Samuel A. Alito Jr. argued that the "advisory" role played by the jury under Florida law satisfied the line of precedents requiring juries not judges to make factual findings needed to increase a defendant's sentence.
      Florida passed its new law three months later to eliminate judges' power to impose death sentences unless recommended by at least a 10-2 jury vote. The writing appeared to be on the wall for Alabama's judicial override procedure after the court sent an Alabama case back to the state's court to consider the impact of its decision in Hurst. The Alabama legislature completed approval of a bill to repeal the judicial override provision on April 4; Bentley had promised to sign it, but it fell to Ivey to sign the measure after Bentley's resignation.
      Robert Dunham, executive director of the Washington-based Death Penalty Information Center, called the repeal "significant." He noted to the Birmingham Times that historically judicial overrides had been seen as a safeguard against runaway juries, but that in contemporary times the power "has been used to impose death sentences against the will of the community and has been disproportionately used in election years in cases of white victims and African am defendants."
      Today, Sotomayor has become the court's most vocal critic of the lethal injection procedures currently used in death penalty states. She spoke for the four liberal justices in dissenting from the decision in Glossip v. Gross (2015) upholding the current three-step lethal injection procedure.
      Sotomayor reiterated her points from that dissent as recently as Thursday night [April 19] in voting to grant stays of executions to the Arkansas inmates seeking to halt the state's plans to carry out eight executions within a span of two weeks. With one significant reform to her credit, Sotomayor can be expected to keep up the pressure on this issue as well.

Sunday, April 16, 2017

On Use of Force, Law Is Toothless, Not Pointless

       The results of President Trump's decision to launch missile strikes against the Syrian air force base in retaliation for its use in a chemical weapons attack on civilian populations can now be toted up. In short, the strikes achieved little in terms of military or diplomatic objectives, but Trump got a bump in his approval rating and a distraction from the investigation into possible collusion between his campaign and the Russian government.
       The episode also lays bare for all to see the rank hypocrisy of Republican politicians and Republican voters who rushed to Trump's support despite having opposed any similar U.S. intervention four years ago when President Obama was in the White House. A survey by the Pew Research Center found overall support for Trump's action — 58 percent to 36 percent — with Republicans supportive by a 4-1 margin: 77 percent to 19 percent.
       Four years earlier, Pew's survey found Republicans opposed to intervention: 35 percent in favor, 40 percent opposed. The 2013 survey found Democrats and independents opposed by larger margins: 48 percent to 29 percent for Democrats, 50 percent to 29 percent for independents. But it was opposition from Republicans on Capitol Hill that forced Obama to fold his cards. Obama had argued that he could act on his own but explained that he wanted Congress's support to strengthen the U.S. position.
       Trump's all but unilateral decision prompted a useful if inconclusive debate over the legality of his actions, with no more than minimal consultation with leaders in Congress and no resort to international law or the peacekeeping machinery of the United Nations. The history of this and similar debates earlier gives pause to any sticklers for separation of powers or international law. But it is too facile to treat either domestic or international law merely as toothless restraints on the president's power to use military force.
       The constitutional debate over the president's warmaking powers is long-lived, a built-in feature of the separate provisions that make the president the commander in chief but give Congress the power to "declare" war. The debate was well joined in the Vietnam era. The various legal challenges to the Vietnam War were never fully adjudicated, but Congress eventually responded by enacting the War Powers Act in an effort to limit any extended commitment of U.S. forces abroad without congressional approval.
       The law, adopted in November 1973 over President Richard Nixon's veto, requires the president to notify Congress within 48 hours of committing U.S. forces abroad and requires withdrawal of U.S. forces within 60 days unless Congress affirmatively approves. Trump followed other presidents' examples by notifying Congress of the missile strikes two days after the launches but without formally acknowledging any obligation to do so.
       The three-paragraph letter sent to Congress on April 8 was admittedly brief, but constitutes the most formal statement of Trump's intentions and justifications for his decision. "I directed this action in order to degrade the Syrian military's ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons," Trump wrote, "thereby promoting the stability of the region and averting a worsening of the region's current humanitarian catastrophe."
       Two days earlier, Trump had announced the missile strikes to Americans and the world in a televised address from Mar-a-Lago not even three minutes long: heavy on bathos, light on tactical or legal content. Now, more than a week later, Trump has still been light on explaining the policy or exploring the implications even as his principal advisers send conflicting signals on long-term goals regarding the future of the Syrian strongman Bashar Al Assad.
       As for the War Powers Act, Charles Stevenson, an adjunct professor at Johns Hopkins University's School of Advanced International Studies in Washington, argues that the law has achieved its purposes even without formal presidential acknowledgment. Stevenson, an aide to the dovish Iowa senator Harold Hughes back in the Vietnam era, notes that no overseas conflict since 1973 has lasted more than three to four months without congressional approval.
       International law operates as even less of a formal restraint on presidential warmaking, but it too should not be completely discounted. Trump's televised address sounded not like an "America First" foreign policy but more like what some experts are calling an emerging doctrine of humanitarian intervention in international law.
       Ironically, Trump has gotten support for the missile strikes from a liberal veteran of the Obama administration: Harold Koh, the human rights-minded Yale law professor and State Department legal adviser under Obama. Koh argued in a law review article that humanitarian intervention, even without U.N. Security Council approval, may be legal under international law if various conditions are met. The humanitarian crisis must be one that threatens international order, and the intervention must be limited and necessary to prevent a per se violation of international law, such as use of chemical weapons.
       Trump's impulsive resort to missile strikes was satisfying no doubt: an eye poke to Assad and, incidentally, to his Russian ally Vladimir Putin. But Trump could have strengthened his case, and shown more respect for public opinion at home and abroad, by dotting the i's and crossing the t's of applicable law, even now if only after the fact.

Tuesday, April 11, 2017

With Shoutout to Scalia, Gorsuch Reaffirms Likely Course

      After taking the oath of office as Supreme Court justice, Neil Gorsuch turned to the widow of his predecessor, Antonin Scalia, to give one more tribute to the man he was to succeed. "I won't ever forget," Gorsuch said, facing Maureen Scalia as she sat in the front row of the Rose Garden ceremony, "that the seat I inherit today is one of a very, very great man."
      Gorsuch had gone further when President Trump announced his selection on Jan. 31 by praising "the towering judges" who had served in the seat: not only Scalia but also Robert Jackson, a Democrat named by President Franklin D. Roosevelt in 1941. Somewhat oddly, Gorsuch skipped over Scalia's immediate predecessor, William Rehnquist, who held the seat as associate justice until his elevation to be chief justice in 1986.
      Apart from Jackson and one other justice, the seat that dates back to 1863 has been held by judicial conservatives for all but a 30-year period. The seat that Gorsuch is shown in Supreme Court charts as seat #10: historically, the tenth seat of what is now a nine-seat court.
      The Republican-majority Congress added a tenth seat to the court in 1863 partly to give President Abraham Lincoln stronger support on a court that had upheld his wartime blockade of southern courts by only a one-vote margin. To fill the new seat, Lincoln appointed Democrat Stephen Field, then serving on the California Supreme Court after having relocated to the West from his native Connecticut.
      Field was commended to Lincoln as a strong supporter of the Union and an expert in land and mineral issues then of special interest to western states. He became a stalwart on a court that became increasingly conservative over time — as seen in decisions striking down federal civil rights laws and the first federal income tax.
      Field served for what was then a record 34 years until, with his mental abilities in evident decline, the other justices prevailed on him to retire in 1899 at age 82. The court had long since reverted to nine members, however. When Justice Joseph Catron died in April 1865, the Republican Congress abolished what was then shown as the court's eighth seat rather than allow the new president, the ex-southern Democrat Andrew Johnson, to fill the seat.
      All but one of the six justices to hold the seat after Field until Gorsuch were Republicans appointed by Republican presidents; of those five, four proved to be reliably conservative on the bench. Two others had more liberal records: Harlan Fiske Stone, nominated by Calvin Coolidge in 1925, and Jackson, who was Democrat Franklin Roosevelt's choice for Stone's seat when he elevated Stone to chief justice in 1941.
      As Field's successor, President William McKinley chose Joseph McKenna, a one-time colleague of McKinley's in the U.S. House of Representatives. McKenna had a generally conservative record on the bench. Like Field before him, McKenna overstayed his welcome. With his mental faculties noticeably in decline, Chief Justice William Howard Taft persuaded McKenna to retire in 1925 at age 81.
      As McKenna's successor, Coolidge picked Stone, his attorney general and a former Wall Street banker. Stone aligned himself in the 1930s with liberal justices Louis Brandeis and Benjamin Cardozo in voting to uphold some of FDR's New Deal enactments that were struck down often by 5-4 votes. When FDR got a series of Supreme Court appointments beginning in 1937, Stone became part of a reliable pro-New Deal majority. And in 1941 Roosevelt was persuaded to name Stone as chief justice to gain Republican support as World War II loomed.
      To succeed Stone as associate justice, Roosevelt picked his attorney general, Robert H. Jackson, who had been FDR's initial choice for the center seat. Jackson is held in high regard today as one of the best writers in Supreme Court history and as one of the strongest defenders of civil liberties — for example, in striking down mandatory flag salute laws and in dissenting from the decision to uphold the wartime internment of Japanese Americans.
      Jackson died in office in 1954 after joining, despite initial doubts, the Brown v. Board of Education decision to prohibit racial segregation in schools. As his successor, President Dwight Eisenhower chose John Marshall Harlan, namesake grandson of the justice now best remembered for dissenting in 1896 when the court upheld legally enforced racial segregation.
      Harlan faced questions about Brown from southern senators and was confirmed by what was then an unusual divided vote of 71-11. He compiled a generally conservative record during the Warren Court's upheavals on civil liberties and criminal law. Harlan retired in September 1971, gravely ill at age 72, and died three months later.
      President Richard Nixon chose Rehnquist, then an associate attorney general in the Justice Department, for the vacancy barely a month after Harlan's retirement. Rehnquist's conservative record provoked a fight with Democrats in the Senate, but he won confirmation by a vote of 68-26. As associate justice, he was the most conservative member of the Burger Court and was then chosen by President Ronald Reagan as Burger's successor in 1986.
      The controversy over Rehnquist allowed Scalia to glide unopposed to a 98-0 confirmation despite his already evident conservative views. Scalia's legacy after a tenure that fell seven months short of 30 years was a constant backdrop for Gorsuch's nomination: praised by Trump and Republican senators but his judicial philosophy criticized by Democrats. Gorsuch's final shoutout before getting down to work gives the strongest clue yet that he expects to be true to Scalia's memory.

Sunday, April 9, 2017

Republicans Made High Court a Partisan Battleground

      Republicans and Democrats exchanged bitter accusations on the Senate floor last week as the GOP majority went nuclear to clear the way for Judge Neil Gorsuch's confirmation to join the Supreme Court in time for the final arguments of the term later this month. Senators on both sides of the aisle uniformly decried the politicization of the Supreme Court while trading bitter accusations that the blame lies with senators or dark-money special interest groups on the opposite side.
      The blame starts, however, with Richard Nixon, who turned the Supreme Court into a partisan battleground as part of the divisive campaign he waged for the presidency in 1968. He was the first of what are now five Republican presidents who have pushed the ideological envelope with appointments that have given the high court a seemingly permanent conservative orientation.
      Nixon tapped into law-and-order sentiment by accusing the Warren Court of coddling criminals while his so-called southern strategy drew on the South’s continuing resentment of the court’s role in school desegregation. Today, most of the Warren Court’s flashpoint rulings are accepted as legal mainstream. The Miranda rule on police interrogation is now part of popular culture, according to no less a judicial conservative than the late chief justice William Rehnquist. The Gideon ruling on right to counsel is hailed as a landmark even if its promise less than completely fulfilled. Outside criminal law, few if any mainstream legal figures would go back on the Brown desegregation ruling, the Baker v. Carr line of cases on reapportionment, or the New York Times v. Sullivan First Amendment decision on libel law.
      Still, Nixon turned immediately to setting a new course. After a Republican-led filibuster blocked Abe Fortas's nomination as chief justice, Nixon turned in his first months in office to the most prominent judicial conservative of the time: Warren Burger, an outspoken critic of Warren Court rulings on criminal law. For a second vacancy, Nixon picked two conservative judges rejected by the Senate’s Democratic majority, Clement Haynsworth and G. Harrold Carswell, and was then forced to turn to the moderate Harry Blackmun.
      To fill two more vacancies, however, Nixon chose Rehnquist, a Goldwater conservative transplanted to Arizona from the Midwest, and Lewis Powell, an establishment business-oriented Virginian seen as somewhat moderate. Powell went on, however, to help form 5--4 conservative majorities in such decisions as those that limited school desegregation remedies, cut off death penalty challenges, and upheld state anti-sodomy laws.
      President Gerald Ford deliberately moved to the center with his sole Supreme Court appointee: John Paul Stevens, a Republican with a non-ideological record on the federal appeals court in Chicago. President Ronald Reagan’s decision to name Sandra Day O’Connor as the first female justice was likewise more political than ideological, but she was vouched for by her conservative Stanford Law School classmate, Rehnquist.
      Reagan followed with the three most conservative Supreme Court nominations since the 1920s: Rehnquist as chief justice to succeed Burger, Antonin Scalia to fill Rehnquist’s seat, and one year later the archconservative Robert Bork to succeed Powell. Bork showed himself in his confirmation hearing testimony to be outside the legal and popular mainstream: the Senate’s bipartisan 58-42 vote to reject the nomination refutes the continuing conservative meme that he was mistreated or misjudged. And, as with Nixon’s situation two decades earlier, Reagan first tried another committed conservative, the pot-smoking Douglas Ginsburg, before turning to the moderate Californian Anthony Kennedy.
      History provides no definitive answer whether President George H.W. Bush should have known that David Souter would prove to be less conservative than vouched for by his principal White House supporter, the fellow New Hampshirean John Sununu. For his second Supreme Court appointment, however, Bush turned to Clarence Thomas, who had already flashed his doctrinaire conservative views in writings and speeches though not yet in his brief record on the federal appeals court in the District of Columbia. Thomas won confirmation only because southern Democrats saw political risks back home in rejecting the only African American nominee Bush was likely to choose.
      As the first Democratic nominees in a quarter-century, President Bill Clinton picked two appellate judges with centrist records and reputations: Ruth Bader Ginsburg and Stephen Breyer. Two decades later, President Barack Obama’s first two nominees, Sonia Sotomayor and Elena Kagan, had supporters across the ideological spectrum: Sotomayor had been appointed to the district court by the first president Bush and then elevated by Clinton to the federal appeals court in New York; Kagan had famously soothed the ideological warfare at Harvard Law School during her tenure as dean.
      Sotomayor and Kagan were both rightly seen as “progressives,” but Obama had more liberal candidates to choose from. His third nominee, Merrick Garland, was more conspicuously chosen as a moderate over candidates who had more liberal records and stronger support from liberal advocacy groups. But Senate Republicans replied to his de-escalating move not with accommodation but resistance by refusing even to consider Garland’s nomination much less to put it to a vote.
      Obama’s actions contrasted with President George W. Bush’s record on Supreme Court appointments. John Roberts came with gold-plated academic and professional credentials, but also a solid record as a Reagan-era conservative. Conservatives shot down Bush’s nomination of his White House counsel Harriet Miers, and he followed by turning to a judge, Samuel Alito, who satisfied the conservative groups’ litmus tests and has proved to be as conservative as they had hoped.
      President Trump’s outsourcing of the Supreme Court nomination to the Federalist Society and the Heritage Foundation carries the conservative politicization of the court one significant step further. Neil Gorsuch may not have been the most conservative judge on Trump’s list of 21 candidates, but he has a deserved reputation as a reliable conservative and revealed himself as such through his calculated silences in his confirmation hearing.
      With his confirmation, the Supreme Court now includes three justices with among the narrowest Senate mandates in history. The Senate’s 54-45 vote to confirm Gorsuch was the fourth closest in history; Thomas’s 52-48 margin was the third closest, and Alito’s 58-42 vote was also narrow by historical standards. A half-century of Republican moves have left a picture of the court as little more than the third of three political branches of the national government.
      Despite what Republican senators would have the public believe, it is the conservative justices today who have an activist ideological agenda, not the liberal bloc. Gorsuch's calls to make it easier to overrule administrative agencies or harder to regulate political campaign contributions point him toward the Thomas-Alito alliance that views many liberal precedents as ripe for reversal. The court has a deep reservoir of public confidence, but the Republicans' siege on the marble palace has weakened that confidence. As Gorsuch's presidential benefactor might say, Sad!

Tuesday, April 4, 2017

On Gorsuch, Senate Should Debate, Deliberate

      The Senate should not vote this week on the Supreme Court nomination of Judge Neil Gorsuch. Not because Democrats can block Gorsuch's nomination or would be likely to get a more acceptable nominee if they could.
      No, the reason for slowing down the vote is that Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch's nomination before sending him to the Supreme Court for what is likely to be 25 years or longer.
      There may be no mystery about the outcome, as Senate Judiciary Committee Chairman Chuck Grassley said at the start of a 4-1/2 hour meeting that ended with an 11-9 party line vote to send the nomination to the floor. But the same American people who figured in the Republicans' decision to block President Obama's nomination last year of an equally qualified nominee, Judge Merrick Garland, deserve to know what they will be getting from a Justice Gorsuch. They will be getting
      * A justice who is a threat to reproductive rights, LGBT rights, and workers' and consumers' rights.
      * A justice who is a threat to clean air and clean water regulations.
      *A justice who would invite a larger role for money in politics by narrowing the power of Congress or state legislatures to limit campaign contributions.
       * A justice who could be a pivotal vote for expanding presidential power at a time when the president is a constitutional time-bomb waiting to go off.
       * A justice with no record of promoting racial justice or protecting voting rights at a time when those issues tarnish America's claims to liberty and justice for all.
       Nine Democratic senators laid out the bill of particulars against Gorsuch's nomination one by one with careful citation to Gorsuch's record during 10 years on a federal appeals court and his year-long stint in the Bush administration Justice Department. Significantly, Gorsuch was often all by himself in some of the instances cited.
      While at the Justice Department, Gorsuch drafted a signing statement for President George W. Bush that would have justified torture-like "enhanced interrogation techniques" such as waterboarding despite Congress's clear intention to prohibit those practices. The passage was deleted in the final version at the instance of the then-solicitor general Paul Clement, no shrinking violet on issues of presidential power.
       On environmental regulations, Gorsuch used an unrelated case to call for reconsidering the so-called Chevron doctrine, a 30-year-old precedent for deferring to federal agencies' interpretations of ambiguous congressional enactments.
       As for campaign finance, Gorsuch called in a concurring opinion for subjecting laws on campaign contributions to the strictest constitutional standard -- so-called "strict scrutiny." The Roberts Court has invoked that standard to overturn federal and state laws to limit corporate spending in campaigns.
       Republicans countered the charges by citing Gorsuch's admittedly outstanding academic and professional credentials and by accusing Democrats of imposing a political agenda litmus test. Democrats invited the critique perhaps by depicting Gorsuch as too often siding against the "little guy" in close cases. The Democrats needed to try even harder than they did to explain that they were criticizing Gorsuch's approach in analyzing and applying laws enacted for the very purpose of protecting or empowering individuals against more powerful organizations or entities.
       In the notorious stranded trucker case, for example, Gorsuch took a federal law enacted to give truck drivers a safety-based right to refuse a company's instruction on operating a vehicle. Alone among seven judges to consider the case, Gorsuch construed the key term in the law so narrowly as to leave the trucker defenseless in his decision to avoid the risk of freezing to death in subzero weather while waiting for a long-delayed repair service.
       In somewhat like vein, Gorsuch gave a narrowing interpretation to the federal law guaranteeing a "free appropriate public education" to students with disabilities. Taking a minority position, the Tenth U.S. Circuit Court of Appeals had adopted a standard that schools must provide some "de minimis benefit" to special-ed students. Applying that precedent in a subsequent case, Gorsuch opted for an even weaker standard: merely a de minimis benefit. The Supreme Court threw out that standard in an 8-0 decision issued coincidentally just as Gorsuch was wrapping up his Judiciary Committee testimony.
       Republicans have been impervious to all these criticisms. They have voted in near lockstep for President Trump's nominees, even some with weaker qualifications than Gorsuch's: think Rex Tillerson at State, Ben Carson at Housing, and so forth. Betsy DeVos for Education was too much to swallow for Maine's Susan Collins and Alaska's Lisa Murkowski, but they are apparently on board for Gorsuch.
       Democrats have enough votes -- 41 as of late Monday night -- to block a vote on Gorsuch's confirmation under the current rules requiring 60 votes for a motion to proceed. Senate Republican leader Mitch McConnell is vowing to change the rule if necessary to bring the nomination to a vote with a simple majority.
       Even without the rules change, Democrats are in fantasyland if they think Trump would respond to a rebuff by looking for a consensus choice instead of going back to the Federalist Society-approved list. Recall: Nixon nominated Carswell after Haynsworth was defeated; Reagan turned to Douglas Ginsburg after Bork was rejected; moderates Blackmun and Kennedy emerged only on third tries; and Bush43 picked the hard-line conservative Alito after the weakly qualified Harriet Miers withdrew.
       Democrats have a losing hand. Gorsuch may be as good as they can expect from this president. Gorsuch's challenge as successor to a stolen Supreme Court seat will be to try to live up to the self-portrait he drew of a careful, apolitical judicious judge.