As the title suggests, the discussion was about Dean Chemerinsky and Professors Chacon and Litman’s takes on the potential effect that the current administration will have on the federal judiciary, and Justice Gorsuch’s effect on Supreme Court jurisprudence. They are in general agreement with the consensus that Justice Gorsuch is as, or more conservative, with Justice Scalia – and therefore his appointment really only restores the Court to the same ideological balance that existed before Justice Scalia’s death.
Other interesting bits: First, no one expects Justice Ginsburg or Justice Breyer to voluntarily leave the bench, so the interesting question is whether Justice Kennedy will do so. Second, as far as the lower courts are concerned, the current administration already has the opportunity to shift the ideological balance in two of the Courts of Appeals, and potentially many more in the next few years. Third, Dean Chemerinsky estimates the current administration will have the opportunity to appoint up to about 25% of the entire federal judiciary. Fourth, regarding the path the Senate has now gone down with Judge Garland and the “nuclear option,” it is very likely that presidents will have an extremely difficult time having any nominees confirmed in the last two years of their presidency. And finally, no one on the panel supported the proposed Ninth Circuit split.
The next OCBA Appellate Law Section meeting will be Friday, May 19 with Justice Tino Cuellar speaking about advances in computing, AI, and big data.