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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, January 24, 2017

Trump's SCOTUS Nominees Down to Short List of Three

Roe -v- Wade critic
Judge William Pryor
The checks and balances of our unique style of Democracy are on display in the federal judiciary where the judges are appointed by the Chief Executive with the advice and consent of the Senate. At the highest level, the POTUS, the SCOTUS, and the U.S. Senate interact in a tightly-choreographed political chess match.

For nearly a year, Justice Antonin Scalia's seat on the SCOTUS has remained vacant since his death. President Obama, having nominated federal appeals court judge Merrick Garland, was already a lame duck and could not get the Senate to provide the advice and consent required by the U. S. Constitution.

During his first week in office, President Trump has reportedly narrowed the field to three nominees -all federal appellate jurists appointed to the bench by President George Bush- and is expected to announce his nominee as early as this week:

  • Thomas Hardiman - 3rd Circuit Court of Appeals Judge, University of Notre Dame and Georgetown University Law Center graduate, appointed to the federal bench by President Bush in 2007 at the age of 31; 
  • William Pryor - 11th Circuit Court of Appeals Judge, Northeast Louisiana University and Tulane University Law School graduate, appointed to the federal bench in 2006; and 
  • Neil Gorsuch - 10th Circuit Court of Appeals Judge, Harvard Law School graduate with experience clerking for two SCOTUS justices [Kennedy and White], also appointed to the bench in 2006.
All three nominees have solid conservative bona fides, yet with a few interesting outliers among their jurisprudence. For example, Judge Hardiman once wrote an opinion reversing summary judgment in favor of an employee's "gender stereotyping" case against his employer [the plaintiff is a transgender woman], ruling that the disgruntled employee's suit could proceed. Another key example is when Judge Pryor -Alabama's Attorney General at the time- removed Chief Justice Roy Moore for his refusal to remove a plaque of the 10 Commandments from his courtroom.

Over their respective careers on the federal appellate bench, all three jurists have come down mostly on the side of the state in death penalty cases and on immigration issues. Judge Pryor has left no doubt where he stands on abortion, calling Roe -v- Wade, "the worst abomination in the history of constitutional law."

For his part, Judge Gorsuch may be the most natural replacement for the irreplaceable Justice Scalia. In his legal writings and scholarship, Gorsuch has exhibited incisive conservative legal analysis combined with a flair for conveying that analysis in a legal opinion. SCOTUSBlog characterizes his opinions as, "exceptionally clear and routinely entertaining." Very rare for an appellate decision.

Although he has not addressed major abortion cases as a sitting judge, Gorsuch's jurisprudence includes several high-profile cases involving the freedom of religion clauses of the Constitution. One was the Hobby Lobby case which challenged the "contraception mandate" of the Affordable Care Act; Judge Gorsuch wrote a concurring opinion in the en banc rehearing that sided with the company and the decision was largely vindicated by the subsequent SCOTUS opinion.

Considering the importance of the SCOTUS functioning with a full compliment of justices, and considering how important it is for conservatives [President Trump arguably not among them] to replace a conservative jurist with a like-minded jurist, we here at the Law Blogger are looking for a SCOTUS nomination this week.

History tells us, however, that not every federal judicial nominee adheres to the script upon which he or she was appointed. Presidents Nixon, Reagan and Clinton have all been burned.

Post #575

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