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Archive for February, 2017

Along with Angela Sabbe of Navigant Consulting, I recently participated in an ABA “Sound Advice” podcast discussing recent trends in data privacy class action settlements.  Members can access the podcast by clicking the link below.  If you aren’t already a member of the ABA section of litigation, you can join by clicking this link.  You’ll get access to this podcast and other useful materials to help supplement your professional development.

http://www.americanbar.org/publications/litigation-committees/class-actions/audio.html

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I’ll be speaking on a panel discussion of data privacy trends on May 4 in Chicago as part of PLI’s 22nd Annual Consumer Financial Services Institute.  Other panels will discuss a broad range of excellent topics, including the future of the CFPB and other federal and state regulatory trends, consumer class action developments, TCPA litigation and regulatory trends, fair lending and debt collection practice issues, and ethics, just to name a few.  In addition to the Chicago live program, PLI has another program schedule in New York in late May, which will be accompanied by a live webcast and groupcasts in several other cities.  For more information, click the link below.  Hope to see you there!

http://www.pli.edu/Content/Seminar/22nd_Annual_Consumer_Financial_Services_Institute/_/N-4kZ1z10oz2?ID=288896&t=HLK7_FCLTY

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I’ve never used this blog as a platform for political commentary, but these are troubled times.  I believe that it is vital for as many of us as possible to stand on principle and not let the current political climate devolve into something much worse.  I waited with a feeling of dread in the minutes leading up to yesterday’s announcement of President Trump’s Supreme Court nominee.  I don’t think my unease was irrational given Trump’s already proven track record of nominating candidates to various cabinet positions who are either demonstrably unqualified, clearly bent on dismantling the institutions they are being appointed to serve, or both.  But I breathed a sigh of relief when Tenth Circuit Judge Neil Gorsuch was announced.  A noted conservative jurist, member of the Federalist Society, and avowed fan of the late Justice Scalia, Judge Gorsuch would not have been a surprise as the nominee of any more mainstream Republican, but with Trump’s track record so far, the nomination of Senator Ted Cruz or even Alabama Supreme Court Justice Roy Moore was not outside the realm of possibility.

A quick poll of reactions from members of Congress was predictable.   Many Republicans immediately hailed the selection of a solidly “conservative” selection in ways that made clear they knew little about the nominee, while many democrats were already vowing to fight to the death to block it, as Republicans had done last year with the nomination of Judge Merrick Garland.  Almost instantaneously, I received an email from the Democratic Congressional Campaign Committee asking me to donate money to help fight the “hyper-conservative” that Trump had just appointed.   Thankfully, a few took a more measured approach, including Colorado Senator Michael Bennett, who congratulated his fellow Coloradan and said he looked forward to reviewing the nominee’s record, according to the Denver Post.  Still, Democratic Senators are under pressure from progressives to move to block the nomination.

As a lifelong Democrat, I certainly do not support approval of the nominee without fully vetting him through the advise and consent process appropriate for a lifetime appointment of this magnitude.  However, I do think it would be wrong to filibuster or boycott the confirmation process, for several reasons.

First, Judge Gorsuch appears eminently qualified for the Supreme Court.  Although we hail from the same state, I don’t have the pleasure of knowing Judge Gorsuch personally, nor have I appeared before him.  However, members of the Denver legal community whom I respect have unanimously praised his intelligence, legal acumen, fair-mindedness, lack of political agenda, and most notably–given the President who nominated him–his temperament.  Even the most left-leaning lawyers who know or have appeared before him consider him qualified.  Leading civil rights lawyer David Lane was quoted in an AP article authored by Nicholas Riccardi as saying:

He is a very, very smart man. His leanings are very conservative, but he’s qualified to be on the Supreme Court . . . . I don’t know that Judge Gorsuch has a political agenda and he is sincere and honest and believes what he writes.

One of Denver’s leading plaintiff’s-side immigration lawyers, Jeff Joseph, went further in a post on Facebook just after the selection was announced:

I have appeared before Judge Gorsuch in the 10th Circuit. I have lost every time. But…this is a really good pick. Unlike every other decision coming out of the administration this week, this pick shows real deliberation and vetting. Yes, I obviously would have liked someone more left leaning, but Gorsuch is a real jurist. He believes in separation of powers and will check abuse of government power. More importantly, he is against Chevron and Brand X deference. When statues are vague he will not be willing to cowtow to the agency interpretation. He believes, rightly, that it is the role of the court to fill in the gaps. Bravo. This is a smart choice.

Former Colorado Supreme Court Justice Rebecca Love Kourlis, a democratic appointee who now heads the Institute for the Advancement of the American Legal System at the University of Denver, a non-profit think tank focusing on judicial independence and access to justice, was also quoted in Riccardi’s article as applauding Judge Gorsuch’s commitment to simplifying court procedure and making access to the courts more affordable and accessible.

Second, obstructionism on this nomination could be political suicide for Democrats.  If we’ve learned anything from the outcome of the Presidential election, it’s that a large portion of America has completely lost faith in our Government institutions.  In the face of any reasonable move by Trump, obstructionist behavior will not help endear Democrats to the voters they lost in the last election.  And for those who would say that the nomination should be blocked as an act of retribution, get over it.  Our candidate didn’t win, and the result of that is that the other party gets to pick the next Supreme Court Justice. Republicans took a very big gamble in blocking Judge Garland’s nomination and got away with it, probably not because voters liked it, but because voters ended up being so fed up with the status quo that the decided to give the “drain the swamp” candidate a try.  Democrats will not be so lucky here.  We need to accept reality and take the high ground.  At worst for Democrats, Gorsuch represents a return to the status quo on the Court before Justice Scalia’s unexpected death.  At best, Justice Gorsuch may turn out to be an independent thinker who becomes a surprise champion for civil rights, among other positive judicial reforms.  By all accounts, Judge Gorsuch is an independent thinker who admires Justice Scalia and shares his textualist philosophy but has a mind and unique judicial philosophy of his own.  And, according to those who know him, he has one trait that Justice Scalia often lacked, a tactful and fair-minded judicial temperament.

Third, and most importantly to me, a nominee with Judge Gorsuch’s track record provides our best insurance against the threat of Trump authoritarianism.  I don’t think it’s an overstatement to say that in just one week, Trump’s nationalist agenda, false propaganda, attacks on the press, censorship, and bullying tactics have already created the most significant threat to our nation’s Constitutional foundations since Watergate, a sentiment already echoed even by at least one prominent conservative commentator.  A review of his opinions makes clear that Judge Gorsuch is highly principled and a strong believer in the separation of powers and will not tolerate attempts by the executive branch to usurp or ignore legislative and judicial functions.  The best example of this is his concurrence to his own majority opinion in Gutierrez-Brizuela v. Lynch, where he goes to great lengths in describing the dangers of excessive executive power.  Judge Gorsuch also has a consistent track record in supporting the Bill of Rights, including checks on police power and government infringement and free exercise, regardless of religious affiliation.  At a time where Trump’s administration threatens to rule by executive decree, stifle public dissent, and ignore judicial orders, I believe that above all else, we need a Supreme Court that will stand up the constitutional doctrine of strong separation of powers and has an unwavering respect for the Bill of Rights.  Of course, as a textualist, there’s a good chance he disfavors the “penumbra” of rights implied by the Bill of Rights that would include a fundamental right to reproductive privacy, and I know this is a dealbreaker to many liberals.  But again, we aren’t in a position to choose, and this only means that at worst, he will preserve the status quo on the Court.  Given the alternatives that Trump could bring forward, I’ll take a Justice who will champion fundamental rights like free speech, freedom of the press, free expression, and freedom from unreasonable searches, seizures, and excessive force and whose antagonism to other fundamental rights like privacy, if he has antagonism at all, is based on a principled philosophy of limiting the Constitution to what the founders intended, rather than some religious, moral, or politically-motivated ideology.

Those who know me know I am no supporter of Trump or his agenda.  But perhaps in making the selection of a respected jurist rather than a right-wing hack, he is extending the olive branch to tell America that will respect the judiciary and the rule of law.  Or maybe he just didn’t bother to vet Judge Gorsuch enough to understand how antithetical his constitutional philosophy would be to Trump’s apparent efforts to ram through his policy agenda using unchecked executive power.  Whatever the reason, block Judge Gorsuch, and you are likely to get a nominee who may be less principled in conservative jurisprudence, but who is also less principled in promoting the rule of law itself.

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