Cumberland Professor Considered for Supreme Court of the United States

Lindsey Catlett[1]

On January 31, 2017, President Donald Trump named his nominee for the next Associate Justice of the Supreme Court of the United States; the verdict: The Honorable Neil Gorsuch.[2] The nomination of a new justice is a significant event in American history and in the legacy of a president.  The announcement has been highly anticipated since the death of Justice Antonin Scalia last spring,[3] and perhaps even more so after President Obama’s unsuccessful appointment of The Honorable Merrick Garland.  The months long wait for Trump’s Supreme Court pick was of special importance to Cumberland School of Law, as adjunct-professor, Judge Bill Pryor,[4] was considered for the position.[5] In light of Cumberland’s close relationship with Judge Pryor, the Cumberland Law Review would like to provide an overview of Supreme Court nominations, a legal profile of Judge Gorsuch, and a special profile of Judge Pryor and his contributions to the judiciary, and Cumberland School of Law.

The founding fathers addressed the selection of U.S. Supreme Court Justices at the Constitutional Convention of 1787. Article II of the U.S. Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .”[6]  This clause largely established the modern process for selecting and confirming Supreme Court justices.  After nomination by the President, potential justices, like Judge Gorsuch, appear before the Senate Judiciary Committee, and ultimately must be confirmed by the Senate as a whole.[7] The process is tedious, but necessary, because as President Trump explained during his announcement, justices could serve for fifty or more years, and their decisions could be felt long after their departure from the bench.[8]  As such, the process illustrates the importance of balanced federal powers; both the executive and legislative branches must share a conviction that the individual is the best candidate for the position before bestowing upon him or her such enormous judicial power.[9]

As straightforward as the Constitutional duties of Article II may sound, much debate has arisen over the extent of the Senate’s “advice and consent.” Some Constitutional scholars propose that the “advice and consent” obligation requires Congress to both advise the President about who he or she should consider for a Supreme Court nomination and then consent to the candidate after the president’s announcement.[10] This interpretation of the Constitution would expand the role of the legislative branch to both recommend a nominee and then approve the nominee. The executive branch would have a more passive role under this interpretation, as the president would essentially endorse the Senate’s recommendation and then wait for the Senate to approve of the nominee.

The most commonly accepted interpretation, which is reflected by current practices, narrows the Senate’s role to that of merely approving the President’s nominee.[11] This interpretation evenly balances the power in selecting a Supreme Court justice between the legislative and executive branches. Such is in stark contrast to the previously discussed interpretation which would weigh the responsibility heavily in favor of the legislative branch.  In Marbury v. Madison, Chief Justice Marshall interpreted the Appointments Clause narrowly, explaining that the clause sets forth a three step process: 1) the nomination, which is the “sole act of the president and is completely voluntary”;[12] 2) the appointment, a step which is also taken by the president, “though it can only be performed by and with the advice and consent of the senate”;[13] and, 3) the commission.[14] This interpretation, though not in the context of a Supreme Court appointment, closely mirrors today’s process for all presidential appointments requiring confirmation.

A second legal issue regarding the nomination process for U.S. Supreme Court Justices arose in 1968.[15]  On June 13, 1968, President Johnson received a letter from then Chief Justice of the Supreme Court, Justice Warren notifying the president of Chief Justice Warren’s intent to retire from the Supreme Court.[16] In response, President Johnson agreed to accept the resignation only once a successor had been qualified.[17] On June 26, while Chief Justice Warren was still on the bench, President Johnson submitted nominees to the Senate to fill the anticipated vacancy.[18]

Critics raised concerns about the validity of the nominations, arguing that the President could not make nominations, and the Senate could not confirm nominations for a Supreme Court Justice until there was an actual vacancy on the Supreme Court.[19] In a published opinion, the U.S. Department of Justice advised that the President has the power to nominate, and the Senate has the power to confirm, in anticipation of a vacancy on the Supreme Court.[20] This opinion is applicable in situations where an agreement has been made with a current Justice regarding his or her pending retirement upon the selection of a predecessor, as well as in response to a Justice being nominated to a higher position.[21]

The U.S. Department of Justice based its opinion on historic precedent and practical considerations. The opinion cites no less than five similar occurrences in U.S. history where a Supreme Court Justice was nominated and confirmed in anticipation of a vacancy.[22] In recognition of logistical concerns, the opinion states, “If the Senate’s power to confirm were conditioned on the present effectiveness of the vacancy, there would continually be gaps in the holding of important offices. In all cases, nomination, confirmation and appointment would have to wait until the incumbent leaves office. Interruptions in the discharge of public business would necessarily result. The needs of prudent administration”[23] require the allowance of nominations and confirmations in anticipation of a vacancy.

The nomination of Neil Gorsuch, however, is intended to fill the year-long unanticipated Supreme Court vacancy created by Justice Scalia’s death, and end a period of interruption “in the discharge of public business.”[24] If confirmed, this will not be Judge Gorsuch’s first tour of duty in the nation’s highest court. Judge Gorsuch clerked for both Justice Anthony Kennedy and former Justice Byron White from 1993-1994.[25] As such, Judge Gorsuch may become the first Justice of the Supreme Court to serve alongside a Justice for whom he clerked.[26]  Prior to his judicial career, Judge Gorsuch received his Bachelor’s degree from Columbia University, J.D. from Harvard Law School, and a Doctorate of Philosophy from Oxford University.[27]

One of Judge Gorsuch’s most well-known opinions from his tenure on the U.S. Court of Appeals for the Tenth Circuit is his concurring opinion in Hobby Lobby v. Sibelius.[28] The issue in Hobby Lobby v. Sibelius was whether the owners of Hobby Lobby, were required to provide certain contraceptive services as a part of their employer-sponsored health care plan under the Patient Protection and Affordable Care Act.[29] The majority held that the owners had standing to sue and a likelihood of success under the Religious Freedom Act.[30] Judge Gorsuch wrote a concurring opinion in which he supported the grant of a preliminary injunction to exempt the owners from compliance with the contentious sections of the Affordable Care Act until the case was decided.[31] His opinion in Hobby Lobby v. Sibelius is representative of Judge Gorsuch’s conservative legacy that the current administration hopes to see incorporated into future U.S. Supreme Court holdings.

Judge Gorsuch’s nomination last night marked the culmination of the Trump administration’s deliberations between three well-respected and highly-qualified candidates.[32] The Cumberland School of Law community is proud to have had one of our own, Judge Bill Pryor, included in this prestigious list.[33] Judge Pryor received his Bachelor’s degree from Northeast Louisiana University and his J.D. from Tulane University School of Law.[34] Within his extensive legal career Judge Pryor has clerked in the U.S. Court of Appeals for the Fifth Circuit, served as both Deputy Attorney General and Attorney General for the state of Alabama, and is now a U.S. Circuit Judge for the Eleventh Circuit Court of Appeals.[35] In addition to his public service as a federal judge for the Eleventh Circuit, Judge Pryor is also an adjunct professor at Cumberland School of Law where he teaches a course entitled “Reading Law.”  His course, true to his jurisprudential philosophy, explores textualism and the legal canons of construction.

To best articulate the appreciation that Cumberland has for Judge Pryor, there are no better experts than Judge Pryor’s own students. Emily Schreiber,[36] a second-year student in his Reading Law class, put it best, describing Judge Pryor as “an approachable professor who has an amazing way of putting complex ideas into simpler terms. His understanding of textualism and Scalia and Garner’s approach is something that will be applicable throughout our practices. Cumberland is lucky to have him take the time to teach this class and invest in our students.”[37] Thank you, Judge Pryor, for your contributions to American jurisprudence and to the next generation of Cumberland Lawyers.

[1] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Ouachita Baptist University.

[2] Julie Hirschfeld & Mark Landler, Trump Nominates Neil Gorsuch to the Supreme Court, New York Times, Jan. 31, 2017, available at https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html?_r=0.

[3] Nina Totenberg, Justice Antonin Scalia, Known for Biting Dissents, Dies At 79, N.P.R., Feb. 13, 2016, available at http://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79.

[4] See U.S. Court of Appeals for the Eleventh Circuit, http://www.ca11.uscourts.gov/judges/hon-william-h-pryor-jr.

[5] Nina Totenberg, Three Judges Trump May Nominate for the Supreme Court, N.P.R., Jan. 24, 2017, http://www.npr.org/2017/01/24/511493397/3-judges-trump-may-nominate-for-the-supreme-court.

[6] U.S. Const. art. II, §2, cl. 2 (emphasis added).

[7] Barry J. McMillion, Supreme Court Appointment Process: President’s Selection of a Nominee, Congressional Research Service (2016), https://fas.org/sgp/crs/misc/R44235.pdf.

[8] Full Transcript and Video: Trump Picks Neil Gorsuch for Supreme Court,  N.Y. Times (Jan 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/full-transcript-video-trump-neil-gorsuch-supreme-court.html?_r=0.

[9] See Id. at 1.

[10] Id. at 5. (citing John Ferling, “The Senate and Federal Judges: The Intent of the Founding Fathers,” Capitol Studies, vol. 2, Winter 1974, p. 66: “Since the convention acted at a time when nearly every state constitution, and the Articles of Confederation, permitted a legislative voice in the selection of judges, it is inconceivable that the delegates could have intended something less than full Senate participation in the appointment process.”).

[11] See e.g., Joseph P. Harris, Advice and Consent of the Senate, 34 (1st ed. 1953) (Stating “The debates in the Convention do not support the thesis since advanced that the framers of the Constitution intended that the President should secure the advice—that is, the recommendations—of the Senate or of individual members, before making a nomination.”).

[12] Id. at 155.

[13] Id.

[14] Id. at 156.

[15] See Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108 (1986).

[16] Id.

[17] Id. In this text, “qualified” means that the successor had both oaths which are required for holding Federal judicial office. Id. at 154 n.2.

[18] Presidential Appointees—Resignation Subject to the Appointment and Qualification of a Successor, 3 Op. O.L.C. 152, 154 (1986).

[19] Id.

[20] Id. at 155.

[21] Id.

[22] Id. at 158–60.

[23] Presidential Appointees—Resignation Subject to the Appointment and Qualification of a Successor, 3 Op. O.L.C. 152, 158 (1986).

[24] Id.

[25] U.S. Court of Appeals for the Tenth Circuit, https://www.ca10.uscourts.gov/judges/judge-neil-m-gorsuch.

[26] Dylan Matthews, Neil Gorsuch, Donald Trump’s Supreme Court nominee, explained, Vox (Jan 31, 2017 8:04 PM EST), http://www.vox.com/policy-and-politics/2017/1/31/14450024/neil-gorsuch-supreme-court.

[27] Id.

[28] Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013).

[29] Id. at 1120.

[30] Id. at 1121.

[31] Id. at 1152.

[32] See Totenberg, supra note 5.

[33] Id.

[34] Eleventh Circuit, supra note 4.

[35] Id.

[36] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Furman University.

[37] Id.

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