WEBVTT - Trump Expected To Name Scalia Replacement Next Week (Audio)

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<v Speaker 1>You're listening the Bloomberg Law with Jim Grasso, New York

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<v Speaker 1>and Gregg's Store here in our Washington studios. Moments ago,

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<v Speaker 1>President Donald Trump said he is on the verge of

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<v Speaker 1>nominating somebody to fill the year old vacancy on the

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<v Speaker 1>Supreme Court. We have outstanding candidates, and pop will pick

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<v Speaker 1>a truly great Supreme Court justice. But I'll be announcing

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<v Speaker 1>it sometime next week. And a new name has gained

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<v Speaker 1>prominence in recent days. It's Neil Gorsch, a judge on

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<v Speaker 1>the tenth US Circuit Court of Appeals in Denver. Both

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<v Speaker 1>ABC and CBS say he is now the front runner

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<v Speaker 1>for the nomination. The forty nine year old Gorstch comes

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<v Speaker 1>with sparkling credentials, including degrees from Harvard Law School, graduating

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<v Speaker 1>the same year as Barack Obama, and the University of Oxford.

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<v Speaker 1>His appeals court nomination by George W. Bush sailed through

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<v Speaker 1>the Senate in twenty six and over the past decade

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<v Speaker 1>he has assembled a solid conservative record. What would Neil

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<v Speaker 1>Gorsuch mean for the Supreme Court? We have two guests

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<v Speaker 1>to help us figure that out. Jane Knitze, clerk for

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<v Speaker 1>Gorsch on the tense circuit in twenty nine. She's now

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<v Speaker 1>a fellow and lecturer at Harvard Law School. And Eric

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<v Speaker 1>Citron of the law firm Goldstein and Russell he looked

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<v Speaker 1>into Gorstage's tense circuit record for the website's go to blog,

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<v Speaker 1>Welcome to you both, Jane. Let me start with you,

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<v Speaker 1>since you clerk for him, just answer a basic question,

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<v Speaker 1>what is Neil Gorstage like? Sure, well, that's an easy question. So,

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<v Speaker 1>having clerked for him, and you know we stay in

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<v Speaker 1>touch over the years, I can say, first and foremost,

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<v Speaker 1>just taking off from our obvious points, he is an

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<v Speaker 1>absolutely brilliant jurist. Uh. Eric made that point his blog post,

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<v Speaker 1>and I think that everyone can agree that he's exceptionally qualified. Um. Also,

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<v Speaker 1>you know, what we see, what I saw a front

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<v Speaker 1>um when I clerked for him, is that he's an

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<v Speaker 1>incredibly good writer. He takes a great amount of care

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<v Speaker 1>in crafting his judicial opinions, and so it was it

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<v Speaker 1>was not unusual for us to go back and forth

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<v Speaker 1>on draft, you know, ten twenty thirty four times, I

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<v Speaker 1>think one draft in our resource sevent d drafts by

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<v Speaker 1>the end, and he takes really a great deal of

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<v Speaker 1>care and crafting, you know, his his opinions, and I

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<v Speaker 1>think that he uh, he now is widely regarded as

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<v Speaker 1>one of the most talented writers on the bench today.

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<v Speaker 1>And with with you know, with good reason, go ahead,

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<v Speaker 1>go ahead, Jane, Oh, I'm sorry. Uh. I also would

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<v Speaker 1>say that, you know, he's an incredibly fair, fair judge.

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<v Speaker 1>What matters to him is not at all his personal

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<v Speaker 1>policy preferences. Those were never discussed in chambers. Um. The

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<v Speaker 1>only thing that mattered to him was what the law said,

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<v Speaker 1>what the Constitution said, and that's how deside the case

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<v Speaker 1>and what the president was. Of course, So Eric, you

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<v Speaker 1>wrote about him and you compared him in many respects

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<v Speaker 1>to Justice Antonin Scalia tell us, Yeah, sure, I mean

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<v Speaker 1>I think I can't take credit for the comparison. That's

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<v Speaker 1>one that's uh, that's become pretty common. Uh, and I

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<v Speaker 1>think he's even spoken about it himself. Um, but you know,

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<v Speaker 1>Justice Scalia's judicial philosophy and Judge gorsuch As judicial philosophy,

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<v Speaker 1>I think, uh, interact um very closely, or have a

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<v Speaker 1>lot of strong parallels. I think that that's clearest on

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<v Speaker 1>issues of textualism, that is, you know, we should try

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<v Speaker 1>to read both the Constitution and statutes to mean pretty

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<v Speaker 1>much what they say in the plain English kind of

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<v Speaker 1>way and not in graphed A lot of judge made

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<v Speaker 1>ideas onto either the laws or the constitution. Uh, and

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<v Speaker 1>that results, I think in a pretty limited view of

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<v Speaker 1>the judiciary, and it's appropriate ken and um, you know,

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<v Speaker 1>I also think that Judge Gorsechu comes across as somebody

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<v Speaker 1>who cares a lot about uh you know, what I

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<v Speaker 1>would call an objective view of the law. I think

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<v Speaker 1>he thinks, you know, there are right answers if you

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<v Speaker 1>just think about it hard enough, pay attention to the arguments,

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<v Speaker 1>pay attention to the precedents, you will know how the

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<v Speaker 1>case ought to come out. And um, you know that

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<v Speaker 1>that ideally everybody ought to be able to agree about it.

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<v Speaker 1>I'm not sure if that's a position that makes him

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<v Speaker 1>moderate or not. You know, I think Justice Scalia believe

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<v Speaker 1>that and managed to vote on the right side of

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<v Speaker 1>the court with great consistency. But I do think it's

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<v Speaker 1>somebody who he doesn't strike you as someone who, um

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<v Speaker 1>doesn't take the side the arguments of the other side

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<v Speaker 1>seriously or the like. He's like Jane said, he comes

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<v Speaker 1>across an exceedingly fair minded judge Jane. Of course, being

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<v Speaker 1>an appeals court judge is different from being a Supreme

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<v Speaker 1>Court justice. But given that, uh, is judge Gorst's somebody

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<v Speaker 1>who tends to want to push the law in a

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<v Speaker 1>particular direction, or is he somebody who is more inclined

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<v Speaker 1>to rule narrowly in a given case? Well, I think

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<v Speaker 1>to the point you just raised in your question, one

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<v Speaker 1>thing to remember is that the job or court judge

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<v Speaker 1>is really to follow in particular source of Supreme Court

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<v Speaker 1>precedent if it exists, And certainly in chambers, he always

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<v Speaker 1>wanted to know what the Supreme Court has said, and

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<v Speaker 1>he wanted to follow it. Um. That said, he wasn't

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<v Speaker 1>afraid to criticize um precedent where warrn did Um And

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<v Speaker 1>quite the contrary. In the administry of law arena, he

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<v Speaker 1>has been a sort of vocal critic of the Chevron

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<v Speaker 1>deference doctrines. Um. But it's hard to say, I mean

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<v Speaker 1>just speaking generally through a narrow or abroad I mean,

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<v Speaker 1>he really just approaches the case. He looks at the

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<v Speaker 1>constitution if that issue, he looks the law, and he

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<v Speaker 1>decides the case corn to what the constitutional law dictates. Eric,

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<v Speaker 1>he has not written about Roe v. Wade. I understand

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<v Speaker 1>from his views on religion. Can we figure out what

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<v Speaker 1>he would think about Roe v. Wade? Is he like

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<v Speaker 1>Schooly in that way? I mean, to be perfectly honest,

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<v Speaker 1>I would have no comfort making predictions are talking about

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<v Speaker 1>that um, not for political reasons, but because I literally

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<v Speaker 1>have no idea. UM. I will say that the limited um,

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<v Speaker 1>you know, the sort of judicial minimalism attitudes that come

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<v Speaker 1>across from his opinions and his attitudes about unwritten aspects

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<v Speaker 1>of the Constitution, would suggest that he's not going to

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<v Speaker 1>be a particularly strong vote for something like the right

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<v Speaker 1>to privacy that underlies growing in Swade, because you can't

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<v Speaker 1>find it in the text of the Constitution. That said,

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<v Speaker 1>you know, when people reach the court, they can have

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<v Speaker 1>very different views about things the Court has already decided

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<v Speaker 1>and how much respect they want to accord to their colleagues,

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<v Speaker 1>on issues that have been percolating for those judges for

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<v Speaker 1>several years and on which you haven't yet have the

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<v Speaker 1>chance to think as a Supreme Court justice rather than

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<v Speaker 1>a lower court judge. Uh. And so it's it's just

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<v Speaker 1>very very hard to predict how once he gets there

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<v Speaker 1>he'll be thinking about questions like that one. It just

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<v Speaker 1>isn't something he's touched on. I will say, also, you know,

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<v Speaker 1>the religion cases that Judge of course has been involved

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<v Speaker 1>in have a lot more to do with questions of

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<v Speaker 1>pluralism than they do with questions than like expressing a

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<v Speaker 1>pro religious view as such, or like voting as a

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<v Speaker 1>religious person or anything like that. I think Judge or

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<v Speaker 1>definitely has a view, like Justice Scalias and other folks

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<v Speaker 1>on the Court that we're just not tolerant enough of

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<v Speaker 1>expressions of religiosity and public which are not really intended

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<v Speaker 1>to make people of other religions feel like they don't

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<v Speaker 1>belong or anything like that. I don't think that necessarily

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<v Speaker 1>translates to a view one way or another about things

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<v Speaker 1>like row being We only have about a minute left,

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<v Speaker 1>but but just tell me, is you look at Justice

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<v Speaker 1>Scalia and what he represented, and you look at Judge Gorcich,

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<v Speaker 1>where would you see the biggest areas, if any of

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<v Speaker 1>of significant differences between the former and the latter. So

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<v Speaker 1>I think the similarities far away the differences, to be

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<v Speaker 1>perfectly honest, on the substance, I think Eric and his

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<v Speaker 1>blog post pointed out the one area where there is

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<v Speaker 1>some difference, which is the administrative law area. Um. The

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<v Speaker 1>Justice uh Scolia was a proponent of Chevron difference doctrine,

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<v Speaker 1>which means differring to that just means deferring to the

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<v Speaker 1>agency's interpretation of a statute right exactly exactly. Thank you, UM.

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<v Speaker 1>And Judge Gorcch has recently come out as quite a

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<v Speaker 1>vocal critic of that of that doctrine. But in terms

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<v Speaker 1>of overall judicial philosophy, originalism, textualism, in terms of their

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<v Speaker 1>you know, really sparkling writing ability and style, UM, I

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<v Speaker 1>think they really do share a lot more similarities than not.

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<v Speaker 1>I want to thank our guests Jane Nitze, who clerked

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<v Speaker 1>for Judge Gorcych and then later for Sonya so to

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<v Speaker 1>Mayor on the Supreme Court. She's now at Harvard Law School.

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<v Speaker 1>And Eric Citron of the law firm Goldstein and Russell,

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<v Speaker 1>he too clerked on the Supreme Court. Thanks for sharing

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<v Speaker 1>your thoughts on Neil Gorcich, who is reportedly the front

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<v Speaker 1>rudder at least a front rudder for the vacant Supreme

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<v Speaker 1>Court nomination. Vacant Supreme Court seat