tv Republican Natl Lawyers Association Conference - Federal Judicial... CSPAN April 28, 2018 6:03am-7:00am EDT
we want to highlight that he filed an opinion concurring of the term we had never heard before he is conferring he will not dissent so looking at the sixth amendment right to counsel during preindictment and here is what he wrote in his not dissenting dissent the original understanding gave larger meaning to the word of criminal prosecution and the supreme court the greater weight of the founding era of evidence appears to support the proposition the defendant here and then he goes on to suggest about religious right to counsel next the judge confirmed to the 11th circuit in alabama and spent years in private practice and offered six opinions with morrissey versus the united states where the irs where the
man talks about his income tax with those expenses related to identifying contemplating surrogates and donors because they were trying to have a child so that deduction for medical expenses the taxpayer and spouse and any dependents but if that would be extended to and donors or surrogates. so he sued and argued that he does have a fundamental right to reject that rejected to look at new fundamental rights he said where would you confer fundamental status with that asserted write to ivf? we would place the matter up for public debate and legislative action. his opinion in particular is delightful to read, they are funny and these. easy to accept cap next on the
fifth circuit confirmed january this year former texas the premium court justice and he only has one unreported decision not necessarily a published opinion but a sentencing guideline case victor requested 100 grenades he received 143 nonexplosive grenades and what he actively sought not what he bought the properly counted that was involved in the offense to calculate his sentence under those cap 59 that plan fell short in the handmade cases. [laughter] so one final one i want to highlight is a judge on the circuit a former texas solicitor general spending years in private practice and
he wrote a notable dissent indicating what came out in the last two weeks and it is a challenge to campaign finance provision that the candidate for mayor and city council and the city of austin from accepting more than $300 per year per election so they dissented to say it violates first amendment and i would say it goes to everyone it is long but to be sure many americans know the amount of money spent on campaign contributions in political speech but then you should oppose big government because it is a necessary consequence when regulators take more and more economic winners and losers participation ceases to be a prerogative this is the
inevitable result of the government unrecognizable and then he concludes to say to have a substantial percentage of hard-earned income at the very least we should allow them to spend a fraction of that amount equal to the government should spend their money. now i'm happy to answer questions to make i would like to ask you to tell us how justice course which has affected the supreme court. >> it has been a little over a year since justice gorsuch that has been a good year city is joined and exciting to watch especially advocating for his confirmation to see that we got this one right everything we have seen so far
is very good and even at the confirmation hearings to were testifying one on either side we invited the right one today but it was a wonderful confirmation to have a long-term impact on the next the court confirmation because first of all how smoothly it went, it was a great way to start off and also the fact the democrats decided to take the approach to go all the way to filibuster somebody who was obviously well-qualified support then as opposed to the ideologues. fact somebody like that to say they are unacceptable what i believe pushed the gop senators to finally eliminated altogether was the supreme court nominees as well because
it isn't about the true controversial nominees it is simply a partisan tool to be deployed against anyone that president trump would appoint even obviously who was a great nominee such as justice gorsuch simply by virtue of having been confirmed from his last year so challenging to give a summary of where he is again and he has a few cases but obviously the biggest but the last term that was most exciting is that he had 100% of agreement with justice thomas you cannot do much better than that so that was interesting to see when actually that goes right what you want in a supreme court
nominee like justice gilead he didn't get all the way to 100% although it was a small sample size. another interesting parallel is to watch how this plays out the number of separate opinions justice thomas characteristically writes a lot of separate opinions the concurrence to explain something a little differently he keeps a very specific and well thought out approach and he wants to make sure that doesn't get lost especially he will just not sign on he will write his own separate opinion and right what he thinks the most correct answer is according to the judgment or he isn't afraid to write the soul dissent if that comes up. looking at last year justice thomas had three times as many separate opinions as majority opinions and justice gorsuch had a most the same percentage
partly because although in the first days must have been wild because it took him weeks to get him up to speed and it is shocking to think hitting the ground running but he heard the cases he only had one majority opinion to write but then everybody else was working on their opinions so that gave him time to figure out where he stood but it was an encouraging sign. he had a decade-long experience as a judge already he was not afraid to say this is how i see things he would just not go along and keep his head down for the first term or year or decade he was ready to hit the ground running. something i thought was exciting to see with their separate opinion. one interesting other aspect
to justice gorsuch it is a little hard to know because it is a black box but there was a significant drop of the cases the court heard but that could be speculating avoiding controversial cases if you just look at the math you have only eight people then you will get less cases to get those four votes from they have been skyrocketed but we have seen one of those separate opinions that justice gorsuch has written about through significant cases this is a second amendment case regarding a dissent from denial into take cases on the second amendment and why are
they so quick to take cases on the first amendment but not the second? that justice gorsuch joins and also there was an interesting one in the administrative law area that is a complex area that is big in justice gorsuch confirmation hearings you never want to hear the word chevron again was forced to revisit but actually it was a very important part of the whole administration's focus on the dangers of the estate and the problem that causes in the constitutional system and justice gorsuch came to the court already thoughtful about this issue recognizing the dangers of things like chevron deference and our deference and the problems that could pose he had a couple of dissent from those cases that pointed out the concerns of the administrative state and
like the deference case and the dissent he would like that constitutionally suspect case with the other not dealing with deference with the head veteran affairs while everyone else had to prove their experts are experts if you are for the department you are already an expert to point out that is a little bit of a thumb on the scale to work your people in there as an expert but to really be attuned to the problems of the administrative state. one other significant opinion he had written in this case was the international refugee assistance project previous versions versus the current version argued against the previous with the nationwide injunction that was issued in
the court unanimously limiting the injunction then there were three more justices that were eliminated altogether and they had emphasized the importance of the presidents role of national security and the improper nature especially for those truly spacious arguments i have seen in that case. but just to touch on a couple of the interesting cases we have seen so far from justice gorsuch one is again going back to the confirmation hearing that we saw with the administrative law focus and also focusing on textualism almost like a civics lesson during the confirmation hearing here is how government is supposed to work we don't
do anything with the law we just interpret them we don't make laws and there are many cases they disagree but find themselves in the position to interpret the law faithfully to protect the law than to recognize the best method is what they actually wrote and signed into law. and with those legislators with the path of legislation. so that is on several occasions with these conversations during oral argument and that was brought up in cases where everyone else seems to acknowledge that is not well written it would not be surprised not to be terribly well thought out but the judge and justice mom --
justice gorsuch reminds people of that and finally the cases that came down that are significant because they show affirmative thought on the court it is true of the appellate justice as well and now judge willett on the other side of the case that decided the case to show you can approach the law from the contextual perspective isn't necessarily outcome determined that the importance is to have somebody approach that and not simply using their opinion for their political opinion it should be judicial opinion one of those is the case coming down recently that caused shockwaves that caused justice gorsuch siding with the traditionally liberal members of the court to find the statute buoyed that would have resulted two to forge
immigrants then we saw the other court justices on the other side of that. and now to say is he abandoning his pretense to be like a scalia type of judge? i would say not at all look at that case it is significant what he was doing was applying the scalia precedent that he felt controlling in the case but the real question in the majority of that case but whether it was controlling in the first place and furthermore separate they did not join that opinion so we know there isn't one solid opinion on the right with the approach even though justice kalina and thomas agreed in many ways to approach the law and a general perspective this case was a difference to apply
that case we may see a different side i think that is interesting and not worried about standing up to explain where he comes from but also that justice gorsuch isn't just looking down the bench and clearly has a mind of his own and is a very intelligent and in that case as well with the concern of the administrative state and in this case to certain of with these laws we are all bound by that we put that more the administrative context and finally one that shows diverging from the conservatives of her principal
reasons dealing with the patent trial appeal board but he wrote dissent by chief justice roberts and again he split from justice thomas and alito but for our all the right reasons to say you like it but i don't like what they are doing so i will vote against it but each time they go back with the concerns of the constitutional structure he was very concerned as you can receive a patent and a copyright you actually have to have the article three court looking at that so thomas alito came to a different conclusion but it shows that at the end of the day someone who truly understands the originalist principles and takes it where he feels they lead him and that is the type of justice we should hope for.
>> and your thoughts on justice gorsuch? b mike i will be careful about getting into what happened the last term with the court briefly serving for four months but having justice gorsuch on his first four months on the tenth circuit as law clerk but to those capacities it is just weird a decade later but what is critically important about that bookend experience is the justice he was ten years ago and ten years of history of his opinions is exactly the same judge as today he just is a different role. if you look back on the tenth circuit you can almost guarantee you will know exactly how he will roll on -- rule with the cases on the court that is the benefit of
taking a judge with the law history we have seen the flaws of taking her just for short histories but if you are wrong it is catastrophic now to have a judge with a long track record so if you look like -- look at other cases you are not surprised at his method of reasoning nor where he comes out because if you look at how he thinks about the law ultimately did the original with the constitution and it embodies a healthy skepticism of the over leaning role for the government with a healthy interest of the individuals and to the extent doing their jobs to interpret law in the land of what was written down
so in a lot of ways that is an easy roadmap and for those that are looking to attract justice gorsuch and how he thinks about the law. in the early years before the lower court but if you look back at his history whether albuquerque or the interpretation but he said the fact that the guy used a gun and shot once but hit two people doesn't mean he used it twice so that is where we come out in favor of the government for killing people that was not the way you would naturally interpret the texas statute as applied to the individual so there are times that i predict we will see justice gorsuch not come out where you might expect a
conservative because he is not a political conservative or liberal him he is a judge doing his job to the people before him. and so we as a nation not necessarily in this room but we expect our judges to solve the problem of our political system we don't get from president or congress we run to the court. they are the superlegislature. but that is not what the framers intended i think that isn't the way he sees the life you watch the confirmation hearing he very clearly laid out the role of the judge but the way the american public thinks that a job is not to make the law to interpret the law as written by those who are authorized to identify the political branch of government. those seem like controversial but it is true it is
controversial across the country they come as conspirators and liberals asking the court and what is there law what it ought to be? so with the role of the corgi idea is they are not intended. >> thank you so now we will go back to elizabeth so give us an overview of where the circuit stands as a percentage of judges appointed by democratic presidents as opposed to republican presidents and what issues or pending cases are coming up
the vacant? >> i don't have a firm number and it used to be conservative over the course of the eight years he could turn it into a pretty liberal court and unfortunately there are not make it on -- many vacancies there is one nominee for a seat in south carolina but that may be the only current vacancy so that is the problem of the court that flips and it may be a while before we can make progress but the ninth circuit has a tremendous opportunity for president trump with 29 judgeships and seven or eight vacancies there are currently two nominees and
many of the states in the ninth circuit have chosen democratic senators so they are trying to find nominees to get through the process but that is also acceptable to the president in the white house but i think that is an area of a tremendous opportunity to change this liberal idea where you so this can -- is a stronghold and i think another one would be confirmed in the next few weeks the sixth circuit we have gone back and forth between more liberal and more conservative we have three judges appointed and
then another one confirmed in the next few weeks with the next wave of nomination and that is good news and the seven circuit is another one doesn't have a reputation circuit in and i think he has already had one confirmation. >> that is the good news that they are slowing down in the way they put forward nominees i hope they will keep them piling up in the senate.
>> i just want to comment the real challenge first of all look at the numbers we have had a few more vacancies when he first took office but then if he filled all the vacancies instantly it does remind you that there had been a lot more vacancies but it could be the impact and it was a typical number of judges. to have a better opportunity for vacancies that they do need to be confirmed to take it vantage of that.
he came into office with just over 100 vacancies now there is 188 is a shocking number after the confirmation do the math 70 more vacancies than what we started with and 37 more judges we have to speed up to have the same impact but it is incredibly important because we see it the most like the travel ban cases and sanctuary city cases and obviously 99% of cases and at some level in the lower courts. we have done our work. >> but it is worth noting that we have real problems democrats are forcing the senate to go 30 hours post- cloture so even though we have a filibuster they are still
forcing and as a result they ask whether nominees are getting through why is the administration is hamstrung? and and the majority leader mitch mcconnell persevered to force through those each nominee to make sure we get them through every time and he is responsible to get the nominees through the court to force them through. >> hopefully that what could come through to eliminate the senate rules committee and senator langford proposal that would still be 30 hours with
the district court judges and for non- cabinet level executives so what we see here is 30 hours of debate staring at a blank screen but it doesn't actually mean people are talking about literally no votes against them but yet they spend debate time really it is one thing if there is a real debate to be had if we are wasting time let's move forward. >> going back to the circuit court any particularly surprising issues percolating? >> obviously how aggressive
and that is an issue that it is in part because of the supreme court decisions affording tremendous amount of deference to the administrative agencies because of supreme court opinions offering with congress to be delegated so i do think the courts continue to struggle with these questions and it is clear before he joined the supreme court but as you saw on the opinion that you do see some circuit court judges making the issue felt and also with other judges out there but as
we move forward they will increasingly look at the question i won't say rein it in because i don't think there is an opportunity to do that but this also demonstrates the impact of the another initial nomination during this but with the and that immense amount of power with a lot of cases where the agencies and elected bureaucrats are judge jury and executioner coming to legal rights property rights or life. >> anybody have thoughts on that question? >> i do think you're certainly
right with difference to agencies we hope it will take and with that case earlier this term and the other just about about their concerns with different aspects of deference so if you are wondering as they trying figure out where kennedy is on the issue? but they can get to five votes because the chief justice has had a couple of opinions so it may just take the addition of another conservative justice to make an impact with the
court has previously granted in our case that is the transgender bathroom case. actually this probably better to consider our deference because it should not be decided on those political issues but based on the legal principles that is a question that doesn't have to do with the legal question at hand. so there seems to be interest for what they are waiting the magical unicorn and then at the area the if it pleases the court that type of deference.
>> can you talk about the nominees on this religious liberty. >> he had a strong record that i'm sure we could talk about for hours on end. he had a very strong record and obviously he joined the court in time and that was a victory for religious liberties and the church that has a decor one -- a daycare could apply for the playground in missouri said no and the supreme court said yes cannot
say of their identity as a church and there are number of issues coming up like that cake shop case will have huge implications for religious liberties there will be fallout in the appeals courts because there are so many similarly related cases like the cake makers you have a whole host of other wedding industry related services and if they are all related to required to provide services to same-sex weddings. >> religious liberty goes both
directions but a very violent prisoner to be frank, was concerned that his right to practice religion in native american tradition but it was built for that very purpose he determined that it will be a potential burden and as a prisoner i have access. but they will not always win at least coming to justice gorsuch out when it comes to justice gorsuch out because this is a judge not looking for the political wind but what the law but the way the
framers understood it. and for religious liberty if you look the way the framers looked walking to the jefferson memorial it is clear with a very small sense with the role of religion in the modern era that there was no space between them the history of our country is not as good as the modern era. >> justice gorsuch has a solid record but interesting to point out some of those recent opinions while justice gorsuch
is a great though it is not the deciding vote so it is encouraging to see by a long shot and not with those religious beliefs in question and that what has been broadly a court with religious freedom in many cases as well. >> you have been a great panel so far. if you have any questions you would like to ask? >> i believe you mentioned the case in particular interest with the appellate judge and
with that controversial decision and the judge that dropped down the canteen commission -- county commission you mentioned the appellate judge i want you to know which judge that was this is the county of jackson on the sixth circuit and this is an issue even though they had the legislative prayer case this is an issue with dueling circuit court in the sixth circuit now with contradictory results.
would just ask you to think to yourself how somebody might change and then say it is almost certainly false. and then try attempt that discipline but and then to make fun of you he will not because by newspaper articles and applies it before him. they are wrong and they are crazy they get along from the harvard law school reunion and a media creation it isn't true.
>> there have been rumors of a rift between justice kagan and justice gorsuch fighting and conference meetings i would love to know the source because i don't think the justices are sharing that information so no one else is allowed and besides the justices. i think it is entertaining that jeffrey has been criticizing justice gorsuch for asking too many questions to be pushy but a few years ago he wrote a piece how justice thomas disgraced because he never asked russians he doesn't think it is a good use of his time but he says he wants to hear what they have to say.