This is a transcript of Episode 60 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Hi, and welcome to Amicus. I’m Dahlia Lithwick and I cover the courts and the law, or what we used to call the law, for Slate.com.
Now, as memory serves, there was a time on this show not that long ago when we would have to really think hard about some case that was interesting, or important enough, or accessible enough to our listeners to cover on this show. Times are a-changing. Since President Donald Trump took office, only three weeks ago, news from the courts has been coming at us so fast and so furious, we have no weekends anymore at Slate. So we are coming at you today, Friday, on what in normal times would have been an off-week for this show. But there’s a lot going on, and so I am here with two of my fellow court watchers at Slate to try to take stock of this week’s huge legal news: the ruling that came down Thursday night from the U.S. Court of Appeals for the 9th Circuit that extended a temporary restraining order on Donald Trump’s immigration ban.
Now this was a per curiam, unanimous decision by three judges across the spectrum in favor of the states of Washington and Minnesota who were challenging parts of President Trump’s executive order that banned travel from a handful of majority-Muslim countries. The appeal was argued at the beginning of this week over the old-timey phone, and it is worth mentioning that people actually watched a YouTube video of nothing happening for an entire hour, as judges pummeled attorneys for both sides who ably tried to defend each of their own positions, again, over the phone, old-timey. Here’s a little taste of what some of that sounded like. Here we have Justice Department lawyer August Flentje, who was defending the Justice Department’s stance in this case, being pounded by Judge Michelle Friedland of the 9th Circuit on this question of whether this was a Muslim ban or something else. Have a listen.
August Flentje: If there were an executive order that prevented the entry of Muslims, there would be people standing to challenge that and I think that would raise Establishment Clause, First Amendment issues. But that’s not the order we have here. This order is limited to the countries defined by Congress, and let me, on the refugee—
Judge Friedland: [crosstalk] are that that was the motivation, and plaintiffs have submitted evidence that they suggest shows that that was the motivation. So why shouldn’t the case proceed, perhaps to discovery, to see if that really was the motivation or not?
Flentje: We’re not saying the case shouldn’t proceed, but it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is not [crosstalk]
Lithwick: Joining us to talk about this week in the law is Jeremy Stahl. Say hi, Jeremy.
Jeremy Stahl: Hi, Dahlia. Hi, Mark.
Lithwick: And Mark Stern.
Mark Stern: Hey, Easy D. What’s up?
Lithwick: No, no, no. Back it up, mister. Do not do—
Stern: I’ve been holding onto that one for days, Dahlia. Please just let me have it once.
Lithwick: OK, once, and now we’re done being silly.
Gentlemen, so this is part of the tremendous, scorching brain trust that is the Slate jurisprudence team. Mark, do you want to set the table and tell us, in the week since Judge Robart in Seattle enjoined, actually, put in place a temporary restraining order of Donald Trump’s travel ban, tell us what’s happened in that time and how we got to the 9th Circuit.
Stern: Yeah, so the Justice Department apparently thought they were going to have some luck at the 9th Circuit appealing Judge Robart’s temporary restraining order, which I’m going to call an injunction because it really functions as one. There’s like a really boring conversation about this going on in appellate Twitter right now.
Lithwick: Oh my God.
Stern: I know.
Lithwick: Be still my heart.
Stern: Basically Judge Robart said you can’t do this, and the government said, “Well, we think the 9th Circuit’s going to tell us we can.” So they went ahead and appealed it and a three-judge panel heard arguments on Tuesday, live-streamed audio arguments, which I think is the way that every court in the country should do it. Two liberals, one conservative, it seemed for a while like there was going to be a two-to-one split. The liberals were very skeptical of the travel ban. The conservative did not seem as concerned. But then last night we got this big, unanimous, 3–0 ruling. The upshot of the ruling was, “Yes, Washington and Minnesota have standing,” because this travel ban hurts their universities, hurts their faculty, foreign students. Universities are organs of the state, so that confers standing onto the states, and the ban very likely violates due process. There were three votes on the court, apparently, for due process and so that was where the ruling landed.
There were also mentions of the issue of religious discrimination. The court said, “We are concerned about this. We hear you, Washington. We hear Donald Trump calling it a Muslim ban.” They actually said, “We will look beyond the text of the order to determine its constitutionality,” but they didn’t really base their ruling on that issue. They stuck with due process and said, “We decline to lift the injunction. We’re going to maintain the status quo,” and so as of right now, Friday afternoon, the travel ban is still enjoined and the Justice Department is considering its options.
Lithwick: And I should add, Mark, to your amazing recap that the other thing they very emphatically did. All three judges in this per curiam said, “This is reviewable,” that courts get to look at this, and in a deep, deep way rejected the Trump administration’s argument, that have been very much in evidence on a lot of matters, that this is simply not even the province of the court to look at this. Right? That a huge, huge part of the sort of aggregate smackdown was “Please don’t tell us that we have no business looking at this, because we’re judges and that’s what we get to do.” Right?
Stern: Supercritical part of the holding, and they said, “It is basically emphatically the province of the courts and our constitutional structure”—more or less quoting Marbury v. Madison—“to determine whether a government action is lawful and so we are not going to accept your bizarre and half-baked argument that this is a unreviewable. We’re going to review it and, damn it, we’re going to say we don’t think it’s even constitutional.”
Stahl: I like how they repeatedly made that point. They made it at the top and then later on in the ruling they made it at the bottom, referring to the points that Mark just mentioned saying, and I’m going to read this quote because I like it so much:
“Rather than prevent evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree, as explained above.”
So they felt the need to repeatedly make this point that “Yes, we have the ability to review executive actions and that’s actually our job.”
Lithwick: Jeremy, I want to turn to you for a minute because I think, unlike Mark Stern and I, you probably don’t slavishly listen to oral arguments in the wee hours the way we do.
Stahl: I’m starting to like it.
Lithwick: I know you are.
Stahl: It’s fun.
Lithwick: It’s crazy, right? It’s like “Woo-hoo! Put your arms in the air! The 9th Circuit—”
Stern: It’s a slippery slope from that to not being able to talk to anyone at parties, so just watch out.
Lithwick: Jeremy, talk a little about what it was like for you as a nonlawyer, if that’s fair, to listen to these incredibly wonky—“Pierce v. Society of Sisters” “Standing? What standing?” You know? “Proprietary Interests? I don’t know what that means.” Was it mollifying? Did you feel like the grownups were in charge? Or did it just reinforce the notion among laypeople that whatever courts do is obscure and magic?
Stahl: No, it’s totally fair to call me a nonlawyer first of all because, no, I am not a lawyer. But within my layperson-journalist capacity and ability to understand these things, the issue seemed very clear. And like I said, they were laid out in the ruling in a very clear way on this specific point, but you had the government essentially arguing, “You can’t review these things. These things are executive issues and, to a lesser extent, congressional issues. Those are the branches that determine national security risk and issues of national security. The president has made his determination and you’re not supposed to look at that, and basically the reason you shouldn’t be looking at it is because you shouldn’t be looking at it.” And it was clear that that was an absurd argument and that was an argument that needed to be shot down.
And there were a lot of points like that in the DOJ’s case, where, it was like, I don’t have to be a lawyer to understand that their saying “We don’t have to present evidence here,” that “This is not based on religious animus, just take our word for it,” I don’t have to be a lawyer to understand that, no, that’s not how this is supposed to work.
Lithwick: Right, or “We’re not going to tell you the names of the people from these countries, but trust us, we have some. It’s not in the record. Wink.” That did not go over all that well either, right? I think what the court was saying was “Either show us—you can show us in camera, if it’s classified—but you can’t just tell us to go away.”
Stahl: There was a portion of the ruling where they said, “There are processes for this. If the information is classified, you can give us classified information,” and I think that’s one of the areas where Judge Clifton, the Bush appointee who people before this ruling came out might be concerned might come down on the other side, that’s one of the areas where he was particularly skeptical of the government’s case. There were a couple of portions where he had some really tough questions for the DOJ lawyer, and he just didn’t really have any answer whatsoever.
Lithwick: There were two things that happened outside of the four corners of the executive order, and both of them were things that the Justice Department was hoping the court would not take into account. One of them, Mark, you’ve already mentioned, is the extracurricular tweeting, and promises, and TV appearances that President Trump made that certainly put the lie to the notion that this wasn’t a Muslim ban. Do you want to talk a little bit about how the court mashed all of the Trump tweets and everything else into thinking about a ban that, on its face, is not necessarily a Muslim ban.
Stern: Yeah, and I think before I do it’s important to clarify: They did not ultimately come down on one side or the other here. Again, it was a due process ruling, and they said, “We’re very concerned about this issue but we’re not going to come out and show our cards just yet.” What they did say was, “Look. We have to look beyond the four corners of the executive order itself because religious discrimination is a huge issue. Our Constitution prohibits it in several different places. It’s an Establishment Clause issue under the First Amendment. It’s an equal protection issue,” and we know from precedents, the court cited Church of the Lukumi, that courts are encouraged to figure out what the real intent behind the alleged discrimination was.
Was this just a kind of neutral regulation? Or was this attempt to stick it to some particular religious sect or group of religious people? That is just so important because if you read the order itself there are only a few clues that it is what Trump described on the campaign trail as a Muslim ban. There’s this very questionable language about only allowing in religious minorities who are persecuted because they’re a minority within their own country, which would seem to favor Christians over Muslims, which Trump said he wanted to do. But it becomes much easier to reach that conclusion if you take a step back and say, “Wait a minute. Look what Rudy Giuliani said. Look what Trump himself said.” This was supposed to be a Muslim ban done legally. Of course, it’s not legal to just ban Muslims so that was really the pretext here.
Even Judge Clifton, the conservative judge on the panel, said,“We have to look at this stuff.” You can’t pretend that he didn’t say these things. We’re allowed to look at newspapers. We’re allowed to look at the words of the guy who put his pen to paper and made this law. I think that’s critical moving forward, and I don’t see a future Supreme Court decision that reverses that particular finding. It seems to me pretty obvious that the courts have to look at the real world and not just the piece of paper before them.
Stahl: My question for the two of you on that point is that the administration is already talking about potentially, as soon as next week, taking more action. You wrote a great piece, Mark, about the president’s options to get his position back in place going forward and one of them was to try a whole new, some form of this, but narrower. My question is, not being a lawyer, not being trained in this stuff, how narrow would it have to be at this point to overlook all of these other considerations, these outside factors, these campaign statements? What sort of evidence do you think the courts would need to uphold this thing, based on the fact that they’re considering it now in terms of Trump wanting a Muslim ban?
Lithwick: Before you answer, Mark, I would just say that Eric Posner, a frequent Slate contributor and great legal mind, has certainly suggested that nothing that the administration could do going forward is going to take away the taint of what Trump has said are his real intentions. Right?
Stern: Well my heart agrees with Eric on that point. My brain thinks that it’s just an untenable position because Trump is going to be in office for, presumably, four more years; we don’t know what could happen, could be eight, could be one. But he is going to issue a lot of executive orders, and the courts are not going to be able to strike them all down when they relate to refugees, immigration, national security.
I think that the kind of executive order that could work around this issue is one that does not have this freaky language that’s in the current order about religious minorities. Again, this order has a very bizarre provision that seems to be designed to favor Christian refugees in Muslim-majority countries. That is a huge problem, especially for a president who said he wanted a Muslim ban.
Stahl: I feel like it could also get around the due process issues by having this, going forward, be applied to new visa applicants rather than current visa holders.
Lithwick: Right. If you do away with any connection, any real nexus between the person with the visa and the United States, then this gets much easier. I think one of the things that was incredibly confusing about this is that it wasn’t even clear who the executive order applied to initially. Right? We have DHS saying one thing, we have the president saying another, then we have the lawyers representing to the 9th Circuit that “Oh, we took care of that problem of that confusion by . . .” You know? “Trust us when we say we’re limiting it,” and that was also an argument that had pretty rough sledding at the Ninth Circuit because the 9th Circuit is like, “What, we’re meant to just take your word that this week’s interpretation is binding?” I think that that’s very cleanup-able.
Stern: Oh yeah. The 9th Circuit was really pissed about that and they basically said, “Talk about due process? We don’t even know who this applies to.” I mean, basic procedural fairness was totally thrown out the window in crafting and implementing this order. So, Jeremy, I think you are correct that if they come back and define who an order actually applies to, get rid of that nexus between a potential visa applicant and the U.S., work around these obvious legal issues, they could come up with something that passes constitutional muster. But the order, right now, I think is probably unsalvageable.
Lithwick: I think we should acknowledge though, let’s just all stipulate, this was a heavy lift for Washington State insofar as, I think we all agree that the law puts a heavy thumb on the scale for executive power, broad executive discretion. It takes a lot to screw this up, right? I mean, when they get it right there is going to be a heavy, heavy instinct, I think, to defer to the executive branch on these calls.
Stahl: When they get it right that policy is still going to be harmful to a lot of people. A lot of people who have been taking these long processes that . . . they don’t just happen overnight. This vetting is already pretty rigorous. These processes already take years and years, people who were waiting more than a decade, in some cases, that overnight, their story was done. Or at least it was according to the administration. You’re going to have a lot of people that don’t necessarily have the paper in hand, at this moment, who have been going through the same thing that will be harmed by a similar policy that might be proven according to the deference that you’re talking about, Dahlia, to be considered to be constitutional.
Lithwick: So that leads me, Jeremy, to what you’ve been reporting on this week because one of the things you’ve done is really hung out at airports, talked to attorneys, met folks who are coming off the tarmac. Can you talk a little bit, first of all, just in your reporting, the extent to which this rollout was just a galactic clown show? And I say that knowing it’s a term of art.
Stahl: I need to do some more reading to figure out the precise definition of galactic clown show, but I trust—
Stern: I think that was James Madison’s [crosstalk].
Lithwick: It was. It’s in the Federalist Papers.
Stern: Right. Original Bill of Rights had that phrase.
Stahl: Absolutely. It was implemented catastrophically. I think that’s one of the reasons why it was so easy to get these restraining orders in so many different courts, is because there was just so much immediate harm that was so visible and so obvious to see, and in talking to people on the ground.
I talked to one family that was stuck in Djibouti last week, and their lawyer had actually won. A Los Angeles lawyer named Julie Goldberg had actually won her own injunction that would have allowed two-dozen-plus plaintiffs of hers, family members of American citizens, spouses of American citizens, mothers of American citizens to come into the country. The ruling was very clear and very specific in that it told this embassy in Djibouti to give people back these passports and visas that were being withheld, and at the time because the Washington order had not come down yet, the administration was just kind of ignoring that. Then Washington came down and sorted the whole thing out and everything was OK. But had Washington not happened, these people would still be in this legal limbo, possibly, based on the administration refusing to obey pretty clear court orders, and based on the complete clown show implementation of this.
Lithwick: Either of you can answer this, but when the 9th Circuit was thinking about who was really going to sustain harm if this order was either terminated or allowed to go on, it felt as though the 9th Circuit was saying that the chaos that would ensue if the order was reinstated was—the clear preference was to not reinstate it—and I wonder how much, again, the chaotic rollout and the government shifting positions, is responsible for the 9th Circuit just being like, “Oh my God, we’re not putting this back in place. There are still people who are sitting at a Starbucks somewhere trying to figure out what is going on,” and this was just a mess.
Stahl: The other thing they asked for was for the 9th Circuit to rewrite the executive order essentially, or rewrite a restraining order and make it more narrowly tailored so that it wasn’t an entire nationwide, striking-down of the ban. This was another point where Judge Clifton was particularly skeptical. He was like, “I wouldn’t even know how to write such an order.” The government lawyer presented certain criteria that he felt should be the case, but it was clear that based on all of these other issues and all of these people in the “airport Starbucks,” as you say, that all three of them were not buying it, I’ll say.
Lithwick: So let me ask this: For those of us who want to bore people to tears at cocktail parties this week, and now they’re all glazed over and they’re like, I don’t know what, “You lost me at ‘standing,’” bring us home, Mark. Tell us what we need to know when people ask us if the Supreme Court is going to . . . First of all, is this going to be appealed up to the Supreme Court? Is the Supreme Court going to take it? Is this just going back to Judge Robart now for a trial on the merits? How do you handicap this sucker?
Stern: I mean, I didn’t even consider in my piece today going back to Judge Robart because I didn’t think the DOJ just wants to keep losing. I assume they want to do something to win in some small way and if they go back to Judge Robart, I think that there’s pretty much no chance that they’ll get a victory in the near future. I think there’s a possibility they could appeal to 9th Circuit sitting en banc, so a panel of 11 judges on the 9th Circuit, but almost any group of 11 judges on the 9th Circuit will probably be left-leaning. And as we’ve seen, this isn’t a clear left/right issue; there’s a sort of connection here that seems to bring the left and the right together. So I think they’ll probably lose if they do that. If they choose to appeal right up to the Supreme Court, then I think the best they can hope for is a four-to-four split along ideological lines, which would in practice affirm the 9th Circuit’s decision that came down on Thursday evening.
So there aren’t a lot of clear avenues for immediate success here. I guess the only thing that would really make sense is to keep delaying until Judge Gorsuch is put on the Supreme Court, assuming that he does get confirmed, which I think he will, and hope that Judge Gorsuch would provide the fifth vote as Justice Gorsuch in favor of the ban.
But I don’t see that happening because I don’t see Justice Anthony Kennedy voting for this. The entire argument about unreviewability seems perversely designed to make Justice Kennedy vomit. It’s the exact kind of thing he hates hearing. He heard it in Boumediene and he rejected it. He said, “Absolutely not. It is our job to review these issues even when they involve national security.” And I think he’ll reject it here. I think that he reads the newspapers. He knows about the chaotic rollout, too. He knows about the due process issues that have plagued this order. He probably knows about the religious animus that seems to lie behind it.
So I don’t see a lot possibility for success for the Justice Department if they go to the Supremes, I don’t see a lot of success if they go back down to Judge Robart, and I don’t see success if they go en banc in the 9th. It seems to me that they have quite a dilemma here and if I were a Justice Department lawyer right now, I’d probably just throw my hands up and get drunk.
Lithwick: Yeah, OK. Well, you heard it here first. Let me just take one minute to say thank you, Senator Ted Cruz, for assuring us in October eight justices was perfectly adequate at the Supreme Court. You were right.
Mark, do you want to talk for a little minute? Because you’ve also been following the events in the Virginia case and closely following what’s happening in Virginia’s appeal. Do you want to talk a little bit about what the status of that litigation is right now?
Stern: Yeah, well Judge Brinkema had a hearing today and she seemed to be aligning with Judge Robart over in Seattle. She said, “Please give me proof. Give me any evidence, Justice Department, give me anything you can to show that this executive order is justifiable. Just give me a scintilla of evidence that it make sense, that it responds to a real need.” The Justice Department attorney just really could not, and I don’t think that there will be any in-camera meetings to show her secret documents proving that there were a bunch of Muslims in one of these Muslim-majority countries who are about to blow up America. I think that she’s very, very skeptical, as is Judge Robart. I think they’re probably of the same mind.
I think Virginia is doing a really terrific job litigating this. Attorney General Mark Herring, whom I spoke with earlier this week, sees this as a fundamental assault on American democracy, American diversity. He’s disgusted by it and he really has thrown his heart into this litigation, and I think their filings are some of the best. No offense to Washington, which had done a great job, but Virginia has gone all-in doing comparisons to segregation and Plessy v. Ferguson, doing comparisons to Japanese internment and the Korematsu case, just invoking all of these dark, dark chapters of American history when we’ve turned against a class of people because of their race or religion or national origin, and showing that that always leads down a terrible road. I think Judge Brinkema’s extraordinarily receptive to that argument, so it doesn’t look good for the government over here in the Eastern District of Virginia.
Lithwick: I want to ask both of you this question because it’s the one that I’ve been struggling with for the last couple of days as Democrats and progressives have done a kind of victory lap and said, “Woo-hoo, the courts got it right. Thank God there’s some controlling thing beyond just the tweet storm that is the executive branch.” Then over on the other side, Rush Limbaugh and Leonard Leo, and there’s a lot of people who are saying, “This is proof. This is the proof we have wanted to adduce all along, that the judiciary is political and it’s biased,” and that there’s no such thing as rule of law or an independent judiciary because this is just all a bunch of politicians in robes.
Am I wrong to say that’s a kind of worrisome development that even by losing this spectacularly, by having virtually every judge who has passed on this say, “No, no, no, this doesn’t work,” that, in a deeper way, law is being undermined precisely because it looks like it’s exactly what Donald Trump wants to set up, which is “All judges are wrong unless they agree with me, and they’re political and biased because they don’t agree with me”?
Stahl: It’s absolutely terrifying, not just for the reasons you said but because you’ve also got . . . There was a PPP poll that was released last night that showed a majority of Trump supporters don’t think that he should obey what the courts say if the courts disagree with him, essentially was the takeaway, was the upshot of the poll.
Lithwick: Do you want to talk about the “Bowling Green” part of that poll?
Stahl: There was probably lots of overlap between those people and the “Bowling Green” believers, truthers, whatever you want to call them. That’s really scary. The other thing that’s really scary is that you’ve got President Trump in one of the executive tweet storms basically preemptively blaming both the media and the judiciary for any future terrorist attack that occurs in the United States of America or against the United States of America. That’s really, really scary because when that happens, if that happens, and there’s no way to say when and if the next one will come, but he’s setting up a game whereby he is going to tell his supporters and he’s going to loudly proclaim, “I told you so.”
No matter what happens, no matter who is behind whatever comes next, if something comes next, he’s going to say, “I told you so. We needed this policy in place. The judiciary would not let me defend America and would not let me defend you, and that’s why this has happened. Now I’m going to try something new and we’ll see what happens.” That is a scary, scary prospect. I really hope that doesn’t come to pass but seems to be the game he’s playing and the thing he’s trying to set up.
Lithwick: Wow. This is a lot less fun than it was when we started. Mark, do you want to weigh in on this question? I think in a very fundamental way this is having exactly the effect that Trump wanted, which is delegitimizing and destabilizing the check that is the judicial branch.
Stern: It’s possible. I’m certainly concerned that apparently Judge Robart and the three judges on the 9th Circuit panel have had to have extra security because there have been threats of assault and that kind of thing. That’s horrible and really, really unnerving and I agree with Jeremy. It’s utterly terrifying that Trump has preemptively blamed the judiciary for any future terrorist attacks.
On the other hand, I just don’t see how the rest of us can really respond to any of these looming threats. We all, I think, agree that the judiciary remains independent for now, and should be. We agree that these rulings were probably the right thing to do. We agree that Trump is crazy. I don’t know, play 11-dimensional chess or anything like that, but I don’t think that there’s anything we can do to plot three moves ahead and figure out how to forestall their future claims of judicial supremacy or tyranny, or whatever.
I think we just have to keep plodding forward using the tools we have at our disposal. As it so happens right now, progressive states and Article III courts are the only tools that progressives and believers in liberal democracy have at their disposal. We’re using them. We’re using them very effectively so far. I think we keep doing that. We keep doing that until we can’t, and when we can’t we all flee the country back to Canada and Dahlia sponsors our citizenship there.
But for now I think we’re doing the right thing and I don’t really care what the nuts say—they’ll always say something like that. Our job isn’t to pat them on the head or plot five steps ahead of them, it’s to try to work with the facts on the ground to help as many people as we can while we can.
Stahl: I want to be just a little bit scared, Mark. Can I be just a little bit scared please?
Stern: You can wake up in a sweat four times a week. That’s what I’ll allow.
Stahl: OK, all right. I’ll accept that ruling.
Stern: Is that acceptable?
Stahl: I’ll accept that ruling, yes.
Lithwick: I want to end this with a segue from what Mark just said, which is: Remember Neil Gorsuch? Remember that guy?
Stern: Who’s that?
Lithwick: Is he still a guy? Is he a thing? It seems to me, Mark, that in addition to state attorneys general and blue states and Article III judges, that one of the people who either has stood up to this onslaught, or has not stood up to this onslaught depending on how you interpret the word disheartening is Neil Gorsuch, who actually did, I think, set the world, or our world of legal wonks, on fire by saying that maybe the president shouldn’t be directly threatening the judicial branch.
Now I think folks on the left say, “Oh this is just a ploy, and it’s cooked up from the 11-dimensional chess makers who live in an underground lab under the Oval Office, and he wasn’t really taking the president to task.” On the other side, I think you have people like Ben Sasse and other senators who really think that it matters very much that somebody stand up to Trump in these attacks on the judicial branch. So what do you guys make of the very, I think, airless place that Gorsuch finds himself in where he’s kind of having to push back? He is, after all, an Article III judge himself. It can’t be fun for him that there’s extra security detail on 9th Circuit judges tonight. Is this a problem for him?
Stahl: Yeah. I’ll say that I was heartened and, moralized isn’t a word, is it? But I was heartened and found morale in Gorsuch’s saying that that was disheartening and demoralizing. I actually took that to heart and felt like it was something that needed to be said. Even if he later on, through his spokespeople, clarified that it wasn’t precisely, directly about Donald Trump’s tweet, he was clearly talking about what Donald Trump had said, and it needed to be said. You might say, “Well, that’s a bare minimum. That’s the least he has to do,” but he did it. So I am kind of grateful for when people are doing the bare minimum these days.
Stern: Yeah, I agree, Jeremy. I should preface my comments by saying I think that I am the only progressive who doesn’t think that Neil Gorsuch is literally Lucifer. I think he’s a principled judge. I think he’s very conservative but I don’t think he’s a rank partisan like, for instance, Justice Alito. He’s not a bomb-throwing culture warrior. He’s not just a Republican in robes. He is a real judge and I think that his comments were made in sincerity. I think that he is truly disheartened by them and I think that he just wants to put some distance between himself and the man who nominated him, and especially the comments he’s been making over the last week. So put me down as rejecting the conspiracy theory peddled by Chris [inaudible] and others that this was all some kind of play to make Gorsuch seem more confirmable. I think he’s a principled dude who hates seeing the president go after judges and blaming them for future terrorist attacks.
Lithwick: OK, so everybody, you heard it here first: “Not Lucifer” category, Mark Joseph Stern of Slate. I actually want to associate myself with the remarks of Mark Joseph Stern and say I also think, having watched Judge Gorsuch on the bench and watching the way he thinks about judicial review, including wonky things like Chevron deference, he really believes, I think, in robust judicial review. The idea that he would be complicit in helping the president kneecap the judicial branch, so that he can someday be on the judicial branch and not be able to say no to the president, strikes me as counterintuitive in the extreme.
I would have loved to see him say, “Hey, Mr. President, when I say disheartened I mean cut it out.” That would make me feel better. What would make me feel even better would be if he said, “Hey, you know who should get a term first? Merrick Garland.” But I know those things are not going to happen. I’m with Jeremy. I can live with baselines and bare minimums, but I just don’t think it’s plausible that this is all an effort to get Democrats to fall in love with him and not scrutinize his record. I think those are two totally different things.
I think I would add to that, that to me, and I’ve said this several times this week, but I think to tie Gorsuch to a larger conversation about the Constitution, checks and balances, rule of law, the role of the judicial branch, and to make this confirmation hearing be about that is only going to be good for Democrats. I think Gorsuch pushing back opens a really interesting conversation at the inevitable confirmation hearings.
Stahl: Yeah. These questions are going to be at the confirmation hearings. These tweets, specifically the attacks on Robart and then the descriptions of the 9th Circuit as disgraceful, are going to be questions that, you know? They’re not just being asked right now behind closed doors by senators. The senators are going to ask them when he’s at a hearing and he’s going to answer, I would imagine, just as sincerely and genuinely as, it seems to me, he did when he was asked in private by the senators. I’m going to go out on a limb, and I hate to do it, but I’ll say I will third the “not Lucifer” position.
Lithwick: Wow! Slate, resoundingly “not Lucifer.” I want to thank the both of you for this extra Amicus episode that is in fact going to drive many people to drink this weekend. This was extremely illuminating and very fun. Thank you.
Stern: Thanks, Easy D. Sorry, I promised not to.
Lithwick: Thanks, Jeremy.
Stahl: Thanks, Dahlia. Thanks, Mark.