FOUR VOTES DOWN | Will They Or Won’t They? | NUCLEAR OPTION VERY MUCH IN PLAY
March 28, 2017
ON THE LONG WAY DOWN
|Sometimes the road ahead isn’t as smooth as it may seem. In the case of JUDGE NEIL GORSUCH, it looks like he may fall short of the votes needed for his nomination to get smooth passage in the Senate next week. He needs 60 votes to clear “a procedural hurdle,” but the 52 Republicans may not be able to get there. And so begins what will drive Supreme Court news in the coming days: a guessing game of will they or won’t they with respect to the Republicans’ option to “go nuclear” and eliminate the 60-vote threshold.
FOUR VOTES DOWN
|Lawrence Hurley with Reuters reports that four more Democratic senators have decided to block a vote on JUDGE GORSUCH, making a total of 20 senators who have backed SENATOR SCHUMER’S call for a filibuster.
DESTINED FOR DESTRUCTION
|The Supreme Court will be the battleground for the next major political fight starring Senate Majority Leader MITCH MCCONNELL and Senate Minority Leader CHUCK SCHUMER. Burgess Everett with POLITICO reports the two highest ranking Senate leaders are “headed for an epic clash” over the SCOTUS nomination.
WE'RE IN TROUBLE NOW
|“Senior Democratic sources are now increasingly confident that Gorsuch can’t clear a filibuster, saying his ceiling is likely mid- to upper-50s on the key procedural vote. That would mark the first successful filibuster of a Supreme Court nominee since ABE FORTAS for chief justice in the 1960s. In the latest ominous sign for the federal judge from Colorado, SEN. BILL NELSON (D-Fla.) said Monday he’ll oppose Gorsuch on the cloture vote, which is expected late next week. More than a decade ago, Nelson helped break a filibuster of now-JUSTICE SAMUEL ALITO.” That’s Seung Min Kim and Elana Schor with POLITICO reporting.
TODAY AT SCOTUS
|The Supreme Court this morning tightened the rules on capital punishment, deciding that the state of Texas cannot use a decades-old definition of intellectual disability to determine who lives and who dies. The high court ruled 5 to 3 that Texas violated the Constitution and used the wrong standards to decide that a death row inmate was not intellectually disabled and thus could be executed. The decision was written by JUSTICE RUTH BADER GINSBURG. She notes, “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”
WHY TEXAS IS PATENTLY LOVABLE
|“More than 40 percent of patent lawsuits are filed in a federal court in East Texas with a reputation for friendliness to plaintiffs. That curious fact was the backdrop for a Supreme Court argument on Monday over whether the court should halt what many big technology companies say is pernicious forum shopping in patent cases.” Adam Liptak with The New York Times reports.
ED BOARD OVERTURE
|The Editorial Board of the Los Angeles Times thinks bad legal advice shouldn’t lead to deportation. In their latest, the Ed Board urges the Supreme Court to overturn decisions that resulted in deportations thanks to attorneys’ “lack of legal knowledge.”
OTHER NEWS
U.S. Supreme Court weighs Advocate pension case
Chicago Tribune“Questions asked by U.S. Supreme Court justices Monday stopped short of revealing exactly how they might rule in a case over whether Advocate Health Care’s religious affiliation exempts it from having to follow a federal law designed to protect employee pensions.”
Tip for filing Supreme Court amicus briefs: Sometimes the real deadline is several days before the official deadline
The Washington Post“Here’s something I learned while filing the Keefe v. Adams amicus brief: Sometimes an amicus brief can come too late even if it’s filed before the deadline.”