Federal Courts and Nominations

PODCAST (Slate): Will You Accept This Robe?

CAC President Elizabeth Wydra appeared on Slate’s Amicus podcast with host Dahlia Lithwick to discuss President Trump’s nomination of Judge Gorsuch to the Supreme Court.

Partial Transcript

LITHWICK: Joining us first to talk about Judge Gorsuch is Elizabeth Wydra, she’s president of the Constitutional Accountability Center. They describe themselves as a D.C. think tank, dedicated to fulfilling the progressive promise of the Constitution’s actual text and history. I’ve wanted to have her on the show for a long time, and she’s super busy, so Elizabeth Wydra, welcome to Amicus.

WYDRA: I’m so excited to be here. I’m a huge fan of the show.

LITHWICK: So, let’s start on Neil Gorsuch. I know you’ve been asked this 200 times in the media this week, but can we just stipulate for our purposes that Judge Gorsuch is a really nice, good guy, he has a lovely family, he’s an incredibly smart and thoughtful writer, and if one were to probe deep in his heart, he’s a good guy….

WYDRA: You know, this isn’t about whether he’s a nice guy or not a nice guy, this is about whether he has the record to be on the Supreme Court, an incredibly important job. We’re not looking to have someone be America’s next best friend… This is an important question of can you follow the Constitution and can you follow the law when you get to this incredibly important job on the nation’s highest court.

LITHWICK: So, Elizabeth, first start by telling us what the Constitutional Accountability Center’s posture is on this nomination so we’re completely clear.

WYDRA: Yeah so, we are looking at the nominee’s record, we have a policy that we don’t oppose or even support — although Merrick Garland was a little different since he never got a hearing — we don’t oppose or support until after the nominee’s hearing. So, right now, we are looking at his record, we have looked at his record, and some of his writings, and I have to say, we have really serious concerns. So, we’re going in with a posture of, look, he has a really heavy burden to show that he will follow the Constitution instead of a conservative political agenda, and also against the backdrop of what we’ve seen even just these two weeks of the Trump presidency: a really strong burden to show throughout this process that he will be an independent check on the president who is putting him forth to be on the bench. And that’s a really important question of independence because we’ve already seen some seriously anti-Constitution, authoritarian tendencies from this president.

LITHWICK: I think probably at this point, listeners know about where Judge Gorsuch stands on a few big issues. I think folks want to know where he is on abortion — we don’t have a lot of directly-on-point abortion writings for him. So, what do we know?

WYDRA: Well, I think when it comes to abortion, perhaps one of the things that I start with is, frankly, what Donald Trump told us over and over and over during his campaign, which is that he would have, in his words, a “litmus test,” something that most politicians usually dance around. Not Donald Trump, he said, I have a litmus test: my nominee to the Supreme Court must be willing to overturn Roe v. Wade. So, that is what he promised. He has shown himself to be pretty much true to his campaign promises, just in these first days of his presidency, so that suggests to me that he picked Neil Gorsuch because he knows he’ll be willing to overturn Roe v. Wade. But even looking at his judicial record, he has, which a lot of the listeners probably know about, some troubling rulings about reproductive choice and access to contraception in that litigation about religious objections to contraception coverage under the Affordable Care Act. He was very strongly in favor of extinguishing women’s rights to the contraception they are entitled to under the ACA because of the religious objections of, first, a corporation, which having corporations recognized as having religious free exercise rights was something that had never happened before in our history in the way that Judge Gorsuch advocated for it, so that’s obviously a real concern. He also would have supported the governor of Utah’s defunding of Planned Parenthood after those videos came out. And fortunately, he was not in the majority on the Tenth Circuit for that, so between his record and what Donald Trump has said, there’s real cause for concern that he would be very hostile to women’s rights to abortion and contraception coverage.

LITHWICK: And Elizabeth, the other thing that I think Trump promised during the campaign with regards to the Supreme Court was pretty explicit promises around the Heller decision and gun rights. Again, we don’t usually have presidential candidates saying, hey, my justice is going to do this, although in fairness, Hillary Clinton said, you know my person’s going to double down and reverse Citizens United, so this is a game the whole family can play. But, it seems to me that if one thinks about where Judge Gorsuch is on gun rights, again, we don’t have a lot squarely on point on his Second Amendment views.

WYDRA: Yeah, we don’t in terms of his judicial record. Again, we’re kind of going on what Trump said. And I should be clear, I don’t think Clinton should have had a litmus test either, I think you pick someone off their judicial philosophy and ideology and their record, but you don’t go in basically having them guarantee votes for you in a certain case. That’s not how we want our judges to operate. We want them to take the cases as they come and not be in a position of pretty much owing the person who put them on the bench a vote in a particular case. And in addition to the gun stuff, the other litmus test that Trump said he would use was a nominee who — he would choose a nominee who would vote for religious liberty on the bench in a way that evangelical Christians would like. And, you know, I’m a big proponent of religious free exercise, it’s a crucial part of our Constitution and part of the fabric of our American values, but a justice is there to defend the Constitution, which applies equally to people of all faiths or no faith. And to have this idea, in fact, Trump used the words that he thought Christians would be “represented fairly” by his pick for the Supreme Court. They’re not there to privilege one religion over another. Obviously this is a lot in the conversation these days with the Trump refugee and immigration ban, with respect to Muslims, so that is also very concerning.

LITHWICK: One of the things that I suspect has been glossed over a little bit in the early conversation around Judge Gorsuch is where he is on deference, both to the executive branch and maybe more interestingly, or more wonkily, to agencies. And so, I’m going to ask you to do a very unfair heavy lift and explain Chevron, and what Chevron deference is, and then explain, you know, this is an interesting crusade right, for somebody who purports to be for judicial humility. Explain a little bit what it means that Judge Gorsuch has really come out against this principle of deference to agencies.

WYDRA: Yeah, so this risks being a little wonky but it’s incredibly important —

LITHWICK: No such thing as too wonky on this show —

WYDRA: [LAUGHTER] I know, good I love it.

LITHWICK: Bring it.

WYDRA: Chevron — it’s not just a gas station. So, there is this doctrine — that I should note, even Justice Scalia supported in his way — that recognizes that Congress writes laws, but they cannot foresee every particular application or minute detail, and so, the administrative agencies, like for example the Environmental Protection Agency, then take those laws and implement them through a series of regulations — this is where a lot of the important, again, environmental regulations come from, but many other agencies. And so, the courts in reviewing challenges to those regulations say, ‘Look, if the statute is somewhat ambiguous here and the regulation is a reasonable interpretation of the statute, then we’ll defer to the expertise of the agency.’ Again, the EPA is a great example — you have scientists and people whose job it is to know whether these regulations with respect to dumping coal in streams, for example, is something that is going to further the goals of the protective laws that Congress has passed for the environment. But Gorsuch — again even unlike Scalia — would do away with this doctrine of deference. And what that means practically is that it would be much harder for these agencies who regulate across areas that are crucial to the daily lives of Americans — so, clean water, clean air, workplace safety, anti-discrimination laws, really important parts of our daily life when we go to work, breathe the air, eat our food — it would make it harder for agencies to defend those challenges against what have been largely conservative attacks. You know, it’s been talked about that, ‘Okay, Chevron is not an ideological doctrine, it applies to both the Trump administration agency regulations as well as the Obama agency regulations.’ But it’s just a fact that conservative, small government Republicans tend to do less with their agencies than progressives who, I’m proud to say, are advocates for the environment and workplace safety and consumer protection and anti-discrimination — we tend to use our agency regulations a little bit more. So, even though it’s on its face an ideologically neutral doctrine, it is really something that conservatives have taken up as a hobby horse to get rid of this doctrine in an attempt to get rid of a lot of the modern day administrative state, which does a lot of the things that progressives and I think, frankly, most Americans love. I mean we should all be in favor of clean air, safe food, and clean water.

LITHWICK: But underlying this there’s this weird paradox because I think Judge Gorsuch has written so sharply about the difference between what judges do, and, good judges and bad judges, and progressives running to courts and asking judges to intervene — it does feel like there’s a deep tension, isn’t there, between him saying on the one hand, you know, restraint and humility, and on the other hand, judges should micromanage the EPA. Am I being unfair?

WYDRA: Well, I think he sees it certainly, and those of us, who are deeply steeped in this, saw allusions to this in his statement that he made after Trump put forth his name in that primetime, “final rose ceremony,” he said that he thinks Congress is the one that makes the law, not judges. So I think he sees himself as sort of this valiant hero of attacking big government agency regulations and putting the power back in Congress. I think what I’m trying to say is I think there’s a little bit of an ideological edge there of trying to get rid of regulations that you think are too, let’s say, intrusive on corporations, even though they benefit every day Americans. So, I think there is an ideological edge to it even though it’s kind of put in this frame of being restrained and small government.

LITHWICK: Elizabeth… is Judge Gorsuch outside the mainstream?

WYDRA: …But, what I’m concerned about when I look at his record and his writings is that he’s not actually following the whole Constitution. Instead, it’s much more this vision that, when I look at actually the way that the founders wrote the Constitution to create a national government capable of solving of national problems, instead, they have this small government view. And importantly, they kind of forget everything that happened after 1789, and the way that we amended our Constitution, in line with what the founders thought we should do, they put the amendment process into the Constitution when they wrote it in the 18th century. They wanted us to amend it, and we did that in crucial ways, especially after the Civil War. That was when Americans wrote into the Constitution the guarantees of equal protection of all persons, wrote in this idea of equal citizenship, that no matter where your parents came from, of whatever color, creed, if you were born in the United States you were born an equal citizen. And also the important protections for voting rights, that voting shall be free from discrimination on the basis of race, national origin, or gender — these important federal powers to enforce those guarantees.

I haven’t seen a lot in Gorsuch’s record — even though he’s an originalist who supposedly follows the Constitution — well, how does he feel about those amendments? I haven’t heard anything about that and, in fact, you mentioned this, he has written in a critical way that lawyers shouldn’t go into the courts — he specifically called out those who advocated for marriage equality for LGBTQ Americans — well, that really troubles me, because that’s a right that’s in the Constitution and it is absolutely individuals’ rights to go in and say I am owed this protection under the Constitution and it is your job, judge, it is your job, judicial branch, to vindicate that right for me. So, the fact that he doesn’t see that really makes me question his commitment to the Constitution and question really his claim that he is someone who follows the Constitution’s text and meaning, if he doesn’t follow the whole Constitution.

LITHWICK: I want to give you a chance to think through with me, and I confess I’m struggling with this Elizabeth, this kind of triage problem of I’m sure what you’re hearing from progressives is what I’m hearing, which is how hard do we fight this nomination? We have an existential threat going on, we have a president who has disparaged the judicial branch, who has called out a judge by name based on his family’s race, we really have no time to fight about Neil Gorsuch, who’s basically at least not crazy. Let’s spend our time working on putting out much, much bigger threats to the Constitution that may take the form of, you know, Donald Trump’s executive order around immigration, proposed executive orders around religious freedoms. What’s your answer to this question of, on a sort of DEFCON 12 scale, this doesn’t feel like where we should be putting energy as progressives?

WYDRA: Well, I think the Supreme Court fight, frankly, brings together the threads of a lot of the battles that you mentioned — of the concerns about Trump’s authoritarianism, the values of religious tolerance and freedom that are rebuked in Trump’s travel ban. When we talk about the Supreme Court, we’re talking about something that goes much beyond just the four years of the Trump administration. Neil Gorsuch could be on the Supreme Court for 20 years or more, so it is a really important engagement for the progressive movement. And I think one of the things that I’m going to value from this conversation is that we are going to have a process, we’re going to have a hearing where we should be demanding answers about all of these concerns that we have about the other activities of the Trump administration. It is entirely appropriate to ask Neil Gorsuch whether he thinks that, if the Trump Administration refuses to comply with an order, for example, striking down the Muslim ban, is that a constitutional crisis? What would his court or another court do if he refuses to comply and instead takes this authoritarian route that he has seen fit to take, at least in his rhetoric, thus far? It’s entirely appropriate to ask Neil Gorsuch, what is your interpretation of the Emoluments Clause, which Donald Trump has flouted since day one of his presidency because he’s engaging in these business dealings with foreign governments through his Trump corporation and its business holdings? So, we can have these conversations about American values, about our constitutional values that Trump seems willing to disregard, and about, frankly, what the role of a justice is — is it someone who’s there to represent evangelical Christians as Trump has seemed to promise, or is it someone who’s there to follow the law fairly and administer justice equally for all, not just the wealthy or the powerful, not just for people who happen to look like the justice, pray like the justice, or have the same amount of money in his bank account? So, these are important questions that go to the heart of who we are as progressives and who we are as a country.

LITHWICK: But now, you know as well as I, in fairness, that when Judge Gorsuch is asked about his views on the Emoluments Clause, or on religious liberty, he’s going to say, I can’t answer that because it’s going to come before me. So, is this just a kind of pro forma, “Let’s get it out there, he’s not going to answer, we can’t really know anyhow,” performance for the American people of progressive values, or is there some utility in actually saying, “No, we’re just not going to confirm you because we don’t know where you are on this?”

WYDRA: Well, I think look, we’re in unusual times, and we have developed this norm where no one really answers any questions at the hearings and it’s all kind of this theatrical performance. But, I think, frankly, to be honest, the backdrop of the Trump administration raises the burden for Neil Gorsuch. I think he has to show that he is actually someone who — this is where I think maybe the mainstream point is useful — who is in the tradition of the American constitutional values that we have, frankly, taken for granted, I suppose, and that seem to have no place in the Trump administration. So, I think the burden is very high for him, and that maybe he does owe us some answers on some of these points, particularly the concerns that he will not be independent, will not be willing to step up and be a check on constitutional violations or other transgressions of the administration of the president who’s putting his name forward. But, I think the stance that Chuck Schumer has laid out of saying you know, we’re going to go with the 60-vote threshold — that’s what we did for President Obama’s nominees, Justices Kagan and Sotomayor, who were both confirmed with more than 60 votes. You know, that seems to be a good standard, because that shows the person is capable of getting bipartisan support, that Neil Gorsuch, if he can’t get that bipartisan support, then there’s a problem.

LITHWICK: Elizabeth, I want to just close with the question that the super wonky wonks are fighting about in the smoke-free backrooms of progressive wonk-land, and that is, what are your thoughts on this, “Well, let’s just, you know, let Gorsuch go by with the understanding that we’ll bring it when Justice Kennedy steps down?” In other words, you know, again, on this triage question, this isn’t a fight worth having, you know, and worst case scenario, best case scenario, so they kill a filibuster, nothing good is going to come out of using this as a marker to punish Mitch McConnell for Merrick Garland. So, let’s just let it go, fight other fights, and live to see another day when Justice Kennedy’s seat opens up. Do you have thoughts that you can share on that argument that I’m hearing it everywhere and I’m just curious what your thoughts are?

WYDRA: Well, I think — I’m a constitutional lawyer, I’m not a backroom political dealer — but I think if you are concerned about the filibuster and Mitch McConnell’s ability to get rid of it with respect to Supreme Court justices, he could get rid of it with this battle. He could get rid of it with the next battle. So that’s a concern no matter what. I mean, obviously, we care deeply about who is on the Court, because it’s not just a question of who comes next, but it’s also about how this person gets into this Court, and the coming Court. If this person who’s nominated now is going to be a staunch vote against abortion rights, that’s going to add to the majority in favor of that if the next nominee is also in favor of striking down Roe v. Wade. So, I think every justice on the Court is important. And you know, I was deeply disheartened by what happened to Merrick Garland, not just because I think that he would have been a great justice, but also because I care about the institutions of our government. I know that might be a little Pollyannaish, but I do. And the fact that those norms were basically exploded I think is not good in the long-term for the American people, and I really hate to see the undermining of our highest court in the nation and the way that the justices who get put on there are treated.


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