The White House has a message for Democrats still harboring bitterness about the treatment of President Barack Obama’s Supreme Court nominee Merrick Garland: get over it.
“If I was a Democratic senator who was angry about the way Judge Garland was treated, I would move on,” an adviser to President Donald Trump, Leonard Leo, said in an interview set for broadcast on C-SPAN Sunday.
Leo, who played a key role in the process that led to Trump’s selection of Neil Gorsuch for the same Supreme Court vacancy, insisted it’s time for both sides in the judicial confirmation wars to lay down their arms.
“I think what we have seen over the course of the past 10 or 15 or even 20 years is that things have just continued to escalate. And part of the reason why they’ve escalated is that no one has been prepared to just say, ‘Look, we’re spiraling downward here with this process. Somebody has to make the first move. Somebody has to extend the olive branch. Somebody has to finally bring some sanity into this process.’ And if I were a Democrat, I would try to do that in this instance,” Leo said on C-SPAN’s “Newsmakers.” “This is a good opportunity for them to move on. Whether they do that or not is a different question.”
Democrats will surely look skeptically on Leo’s suggestion that a truce be called at a moment when Republicans control both the White House and the Senate, but Democrats ultimately have little power to control the outcome: if they try to obstruct Gorsuch’s confirmation, Republican leaders in the Senate will likely kill off the filibuster altogether and approve Gorsuch’s nomination along party lines.
Leo, on leave from his post at the conservative Federalist Society in order to work with the White House on Gorsuch’s confirmation, said he considers a filibuster a possibility in part due to Democratic voters’ anger over the outcome of last November’s presidential election.
During the interview, conducted by the author of this blog and by Wall Street Journal Supreme Court reporter Jess Bravin, Leo said he expects the Justice Department will release some records about Gorsuch’s work as the principal deputy associate attorney general for two years under President George W. Bush.
“I would expect that those will be requested by Democrats on the Senate Judiciary Committee—memos or email,” Leo said. “Of course, there will have to be some level of negotiation regarding what aspect of those can be disclosed if there are national security issues, but, yes, I think those requests will be made and I won’t be surprised if some of that material becomes part of the record … here’s a long tradition of culling through that kind of material and trying to provide whatever would be most illuminating for the Senate.”
A Justice Department spokesman had no comment on whether such a process was underway, but the agency was hit with a Freedom of Information Act lawsuit Friday seeking much of that information.
A group advocating for greater transparency and term limits for justices, Fix The Court, filed suit in U.S. District Court in Washington to press for disclosure of records of Gorsuch’s work from 2005 to 2006, before he joined the Denver-based 10th Circuit Court of Appeal.
“Little is known about Judge Gorsuch’s tenure at the Justice Department,” Fix The Court’s Gabe Roth said, adding that “he served during a tumultuous stretch, at a time when agency attorneys were believed to be giving legal advice in support of warrantless wiretapping on American citizens and in the run-up to the infamous dismissal of U.S. attorneys for partisan reasons.”
Leo also said he agrees with Sen. Ted Cruz’s statement last week that the high court could face another vacancy by summer.
“I think that’s quite possible. You know, the court is quite old,” Leo said.
Much of the speculation surrounds Republican-appointed Justice Anthony Kennedy and whether he might step down in order to allow a Republican president to replace him. However, another school of thought suggests that Kennedy will be unlikely to make way for a nominee who is likely to put at risk some major but narrowly-decided precedents Kennedy has provided a swing vote for on issues like abortion, gay marriage and affirmative action.
Leo said he thinks Kennedy’s assessment of whether the still-shorthanded court is back in a more normal state will play more of a role in his decision than how a new nominee might tip the balance on issues close to Kennedy’s heart.
“Knowing what I know about him and his dedication to the effectiveness and independence of the judiciary and the importance he places on smoothly and effectively running courts, I think he’s going to be thinking a lot about the court and its institutional integrity integrity, more than anything else,” Leo said, before adding: “That’s not to say he wouldn’t be thinking about those other things. I don’t know.”