Zadekpedia2017-03-25 · Guest: Ilya Shapiro (Cato Institute Senior Fellow) · 5:28
Filed under: Elections and politics · The Constitution and the courts
Topics: Constitutional Law · Donald Trump · Supreme Court
Significance of the Neil Gorsuch Supreme Court nomination
Bob Zadek discusses the significance of Neil Gorsuch’s nomination to the Supreme Court with guest Ilya Shapiro. They explore the court’s growing influence on major political issues and how the vacancy left by Justice Scalia became a pivotal point in the 2016 election.
Topics: Supreme Court, Neil Gorsuch, Judicial Nominations, Constitutional Law, Cato Institute, Antonin Scalia, Donald Trump
Speakers: Bob Zadek, Ilya Shapiro
The Significance of the Gorsuch Nomination [00:00]
Bob Zadek: Good morning, my friends. Welcome to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. This will be a groundbreaking show because of the stature of our guest and the importance of our topic. We will be—drumroll, please—commercial-free for the entire hour. So when our announcer says “for a full hour,” he meant a full hour.
Today we talk about the nomination and, hopefully, the confirmation of the nomination of Judge Neil Gorsuch to be elevated as Justice Neil Gorsuch to the United States Supreme Court. As you all know, Neil Gorsuch was nominated by Donald Trump. The Senate had its Kabuki theater of make-believe interview with Neil Gorsuch—more about that in a moment. That was sort of a political event, a show trial of sorts. Behind that, the Senate will now do its procedural things, hopefully leading, with a little drama, leading to the confirmation of the appointment, and we will soon have Justice Neil Gorsuch.
To discuss why this appointment is so important, what it all means—and it is important—I’m happy to welcome back to the show Ilya Shapiro. Ilya is a Senior Fellow of Constitutional Studies at the Cato Institute. Importantly, he is the Editor-in-Chief of the Cato Supreme Court Review. He also co-authored Religious Liberties for Corporations: Hobby Lobby, the Affordable Care Act, and the Constitution in 2014. Ilya has testified before Congress on numerous occasions and has appeared on all major media and has written extensively in all of the so-called mainstream media. Ilya last appeared on our show in May of 2016, and with that introduction, Ilya, welcome back to the show. It’s nice to have you.
Ilya Shapiro: It’s good to be on, Bob. This is an important topic and, as President Obama would say, we’re in a teachable moment about the Supreme Court.
Bob Zadek: Oh, this is a teachable moment in so many ways. Now, Ilya, we who watch closely the political process in our country and who are passionate in our political beliefs consider this event to be—it almost is second to none in its importance in the political life of our country. So the first question has to be: there’s a lot of things that go on in Washington. Why is—it’s a two-part question—why is the appointment of a Supreme Court Justice so important, and why is this seat that hopefully will be filled by Justice Gorsuch so important? Why the importance of this?
Ilya Shapiro: Well, the Supreme Court plays an increasingly large role in our political discourse. Just think about the last decade or so. Every important political issue that we face as a country has come before the Supreme Court, whether healthcare, immigration, voting rights, gun rights, gay rights, campaign finance, affirmative action, abortion—all of the top issues have come before the Supreme Court.
And that’s anomalous. It’s not the case that every year, boom, boom, boom, we have two or three of these major blockbusters. That’s sort of the impression that people have because we’ve been living through that. But that’s not the norm. In fact, this term at the Supreme Court, you don’t have those kinds of blockbusters. It feels kind of odd, but that’s kind of a regression towards the mean.
But these are big things. And as the federal government insinuates itself into more and more aspects of our lives, at the end of the day, the buck stops with the Supreme Court. Not because they’re all-knowing Platonic guardians, but because in our system of government, as one of the former justices said about half a century ago, “We’re not final because we’re infallible; we’re infallible because we’re final.” Somebody has to make those calls in that high-stakes litigation at the end of the day, and it comes to the Supreme Court.
And this nomination, this vacancy, this appointment is so important because, well, as we saw during the election, which president, which party got to make the appointment would change the dynamic of the court, would change the direction that the court would go on all of those big important issues that tend to be decided five to four.
Show prep notes
Bob’s own preparation for this episode.
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Show Notes:
Gorsuch Hearings
Audio/Video
Show Notes:
Headline: Judge Gorsuch on the Hot Seat
Following Justice Scalia’s death last year, Republicans took a gamble with their #NoHearingsNoVote strategy – refusing to confirm any Supreme Court nominee for the remainder of the election year. Ilya Shapiro, Editor-in-chief of the Cato Supreme Court Review, defended this strategy on the show last May on the principle that the election should serve as a referendum on who should nominate the pivotal 9th member to a divided court. In something of a double surprise, Trump was elected, and almost immediately made good on the promise to select a judge from his list of 21 potential nominees. Since the start of Neil Gorsuch’s Senate confirmation hearings, Shapiro has been on a media blitz, cutting through the “Kabuki theater” and interpreting the exchanges between the District Judge and his senatorial inquisitors (both friendly and unfriendly). He returns this Sunday to examine how the rest of the process is likely to unfold, in light of Senator Chuck Schumer’s promise to filibuster. Bob and Shapiro will also discuss what it means to be a judge “in the mold of Antonin Scalia,” and how the founder’s original intent still applies to the changed circumstances of modern times. Tune in to the show to of ideas, not attitude, and call Bob and Ilya with your questions at (424) BOB-SHOW.
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Links
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Ilya Shapiro (@ishapiro) | Twitter
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Cato Supreme Court Review
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What to Look for in the Gorsuch Confirmation Hearings Cato @ Liberty, March 19, 2017
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What To Ask Neil Gorsuch At His Confirmation Hearing The Federalist, March 17, 2017 by Ilya Shapiro
Related Shows (Subscribe to the Podcast):
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Ilya Shapiro on the Supreme Court in the Balance May 15, 2016
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Gail Heriot on the Significance of Justice Scalia’s Passing Feb. 21, 2016
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Overruling Government Overreach: Damon Root on the Libertarian Legal Movement Nov. 28, 2014
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Sotomayor’s nomination for Supreme Court Justice (Professor Sheldon Nahmod) May 31, 2009
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The Supreme Court and You (No Guest) May 16, 2010
**[Ilya Shapiro BIO]**
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Senior fellow in constitutional studies at the Cato Institute
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Editor-in-chief of the Cato Supreme Court Review.
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Co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014).
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Shapiro has testified before Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 150 “friend of the court” briefs in the Supreme Court.
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In 2015 National Law Journal named him to its list of 40 “rising stars” in the legal community.
Shapiro’s Last Appearance:
Last week, Bob examined how the United States has ended up in a situation that would have frustrated the Framer’s intentions, had they seen it coming. The next president will likely hold more authority than was ever supposed to be granted to a single person, by virtue of nominating the ninth judge to a sharply divided “4-4” court. Ilya Shapiro is carefully observing the political chess game around the Supreme Court nomination, and urges Senate Republicans not to hold hearings or a confirmation vote for President Obama’s nominee, Merrick Garland. Instead, he says they should wait until after a new president is elected – making the judicial pick the paramount issue in the coming election. Shapiro joins the show this Sunday to argue that “We, the People” should make the choice of who determines the make up of the court, with so much on the line.
Gorsuch Hearings
What to Look for in the Gorsuch Confirmation Hearings | Cato @ Liberty, March 19
Recapping the context of the year-long vacancy, and the dynamics of an election-year appointment (“the last time that a Senate controlled by the party not in the White House confirmed a Supreme Court nominee to a vacancy that arose during a presidential election year was 1888”):
“Since Judge Neil Gorsuch of the Denver-based U.S. Court of Appeals for the Tenth Circuit was nominated on January 31, his chances of joining the high court have only improved. A recent survey showed that 91 percent of Democratic congressional staffers expect him to be confirmed, as Democratic senators have failed to find any salient items that would merit disqualification. Sure, activists will attempt to tar Gorsuch as anti-women, anti-worker, anti-this-that-and-the-other, but the mild-mannered originalist is anything but the cartoon Monopoly Man this caricature tries to paint.”
Shapiro notes that hearings tend to be a kind of Kabuki theater, and laments the missed educational opportunity:
“But it doesn’t have to be that way. This is a singular chance to educate the American people about constitutionalism and the legal process. Senators could ask real questions, about the meaning of different constitutional or statutory provisions divorced from any pending or hypothetical cases. They can try to gauge whether the nominee’s commitment to stare decisis (not overturning incorrect but longstanding precedent) is relatively strong (like Scalia) or less so (like Justice Clarence Thomas). Especially given Gorsuch’s Oxford doctorate in legal philosophy, they can get at some deeper jurisprudential or philosophical issues without asking the nominee to either comment on pending cases (like the immigration executive orders) or generate out-of-context fodder for the evening news (anything about Roe v. Wade)
If hearings were run on such principles, the questions might sound more like some of Shapiro’s suggested questions:
Questions for Gorsuch by Ilya Shapiro
On expansions of the administrative state:
The first sections of Articles I, II, and III, respectively, are known as the “vesting” clauses, laying out the distinct roles of each branch of government. What do you think each clause means, and why is this important to protecting people’s individual rights? What basis do independent federal agencies have in the Constitution?
Commerce Clause:
Congress justifies much of the legislation it enacts today (if at all) by invoking the power to regulate interstate commerce. Some would say that the scope of this Commerce Clause has grown to the point where it constitutes a federal police power. What is the original meaning of this clause and what are some judicially enforceable limits on it?
Enumerated Powers (versus loose interpretation of Necessary and Proper clause):
Do you believe the original meaning of the Necessary and Proper Clause allows the federal government to enact legislation if it is not directly tied to an enumerated power in the Constitution? Relatedly, in Gonzalez v. Raich—regarding federal regulation of homegrown and consumed marijuana, essentially affirming Wickard v. Filburn—do you agree with the majority, Justice Scalia’s concurrence, or the dissenting justices?
Eminent domain:
What do you think of Kelo v. City of New London? Does the Constitution ever allow the forced transfer of property from one private party to another?
14th Amendment:
Does the “Equal Protection” Clause proscribe discrimination on the basis of religion? On the basis of sexual orientation? On the basis of political affiliation? How are courts supposed to determine what a protected class is?
Over-regulation:
In 2013, you said the following: “There are so many crimes cowled in the numbing fine print of [the Federal Register] that scholars actually debate their number.” How can this be reconciled with James Madison in Federalist 62: “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read”? Is fixing this a job for judges, legislators, or both?
And a complex question:
In light of your remarks that only a “bad judge” likes every result he reaches, describe a case where you ruled against your policy preferences. Conversely, in cases where you rule in line with your personal views, how do you know that your motivations are pure?
Gorsuch Is a Jurisprudential Rock Star | Cato Institute (Republished in CNN) February 2, 2017