President Donald Trump has nominated Judge Neil Gorsuch to fill the seat on the United States Supreme Court left vacant by the death of Justice Antonin Scalia eleven months ago. University of Kansas Law Professor Lumen R. Mulligan has argued before Gorsuch in his current capacity as a judge on the 10th U.S. Circuit Court of Appeals. Mulligan is the Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at KU. Mulligan says Gorsuch intellectually fulfills the requirements of the post.
“He’s certainly very, very smart, very well educated, a great writer,” said Mulligan. “Those are the types of things he definitely has in common with the late Justice Scalia. I think he has a passion for the law, and a respect for the majesty of the American legal system, and someone who takes that role with great reverence and seriousness.”
Mulligan said writing legal opinions is a detail-oriented task that takes a narrow focus.
“A legal opinion is always backward-looking,” said Mulligan. “What happened in this case in the past? It’s also very narrow. What should we do to resolve this case for these parties? Of course, legal opinions have precedential value and end up impacting how other things happen, but it’s done in a very different way.”
This is very different from the task of writing law given to a member of the Legislature.
“Legislators can take giant steps, and judges take little baby steps. There’s a little gap. The law’s not clear here or there or no one knows what this word in the statute means and the judge fills in that little space.”
Mulligan sees the nomination going forward much more quickly in this case than in the case of Merrick Garland, who was nominated by President Obama and never got a hearing.
“I am quite sure that the Republican majority in the Senate will be pleased with a Gorsuch nomination,” said Mulligan. “The question will be whether the minority in the Senate filibusters or not.”
Senate minority leader Chuck Schumer said Wednesday that Democrats will filibuster, if needed.
He said in a floor speech, “There will be 60 votes for confirmation. Any one member can require it. Many Democrats already have, and it is the right thing to do. On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite. It should be essential. That’s what 60 votes does.”
President Donald Trump has supported the idea of using what has been called the ‘nuclear option’ to prevent a filibuster if that is what is necessary to get Gorsuch confirmed, but he did say that it was up to majority leader Mitch McConnell to decide if that was needed.
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