Appellate attorney here in town. I welcome you to the circuitit conference. Since we last met in chicago in 2016, a lot has happened if you havent noticed. We have a new president and more recently a new Supreme Court justice. What does the combination of events mean for the future . That is what we will be addressing today. Theres lots to discuss. We have four experts to help us sort things out. The resumes are long and their accomplishments are many as a result so as to leave as much time for the discussion isas poi possible. First we have tim bishop and appellate lawyer in chicago and he clerked for William Brennan justice of the Supreme Court. Next to him, kerry is the chiefa counsel dedicated to the rule of law with the fair judiciary. As the clerk to Justice Clarence thomas next to her we have thera member of the Supreme Court appellate practice clerk who clerked for Justice Roberts and finally last but not least. The professor of law at Indiana University in bloomington served as a clerk on the seventh Circuit Court of appeals. Each has a topic or two relevant to President Trumping future of the Supreme Court. I would ask that each speak in order that interests them for ten or 12 minutes time per permitting i will then ask for any reaction they have to the presentation and then finall fie go to you, the audience for questions. We have a new justice that has been there for three weeks. What we have to go on so far is his participation during the session. He didnt have time to prepare for these and its differentt being on the Supreme Court withn other justices rather than on a panel of three in the tenth circuit nevertheless we can learn a few things about his approach to judging what weve seen so far. The first argument was also the most active oral argument and shows the language very quickly coming to the floor. It involved mixed claims to and federal antidiscrimination claims to. They are viewed by the federal circuit and the decisions are made in the court. What happens when you have a mixed claim . E years after the ct complaint. Gorsuch, why should we follow the plain language and understanding of the term action . Congress could have said claims instead. That is what you are saying. The opt out action bringing the same claims that separate actions. I mean i dont like the policy consequence. I dont like the policy consequence but as a matter of plain language language we say is a new action. Probably the most publicity goes to the case where missouri has a scheme whereby it will fund, provide funds to build soft playground surfaces for any entity where you have to apply the ground. Anyone can apply except churches and other religious entities and the missouri constitution seeks to acquire that result. The question is is that exclusion of violation of the protection clause . Justice gorsuch as very few questions. He really just made a statement and remarks in the tenth circuit he frequently would dress up his questions and his statement in question warm. He wasnt shy about giving his view of the case and arguing with the other judges through these rhetorical questions. Thats what he did here. Missouri has argued that it makes a difference if its an elected program and not an automatic one and gorsuch says hell is discrimination any less if its a Selective Program collects data we tell the difference . One could play with that line forever. You see a theme running through the plain language. Once you depart from the plain language then you have to make up where those lines are connected a difficult and create uncertainty. Here is his bright line to discrimination on the basis of status of religion. There is no line drawing problem there. We know thats what happened in this case. Counsel of missouri we do know that decision was made because it was a church and i suspect that answer probably resolves Justice Gorsuchs view of that case. I want to talk about something here that gorsuch said in the third conference right after these arguments. When i was in the sector i had no trouble getting out in a question i wanted to get out. It was always easy with the three of us but in the roughandtumble of the Supreme Court thats not the case that you have to develop techniques to ensure that you get your question in. He said we could see this running through the argument for this session. He said he discovered interesting counsel before council finishes answering the last question will let him get his question and before the next interaction so well have to see if Justice Kagan make sure she gets her questions then. Bristolmyers squibb professional jurisdiction showed a lot of interest in postjurisdiction cases. California purported to exercise jurisdiction over not just the claims of californians against a noncalifornia manufacturer of drugs and Bristol Myer Squibb and the drug is taxil. It also has jurisdiction over the claims against the noncalifornia defended that noncalifornia purchases. The very active arguments most of the questions are practical ones about what it means to send these cases in one place but when we get to gorsuch asking the assistant solicitor general we talked about predictability but we havent talked about federalism. We know that this is another one of gorsuchs interest, preserving our federalist system. I was hoping you might give us a couple of words about what the implications are for the interest to say oh hi zero in administering its own procedures with respect to its own citizens that occur in its own state. Here are my concerns. What does it do to a high of sovereignty when qalat or new grads cases of folks who use paxil in ohio and taking jurisdiction over these . Plain language federalism bright lines. The question may be of interest. 105 questions with three counsel here. That is typical and its usually , the arguments usually get to train 15 and 16 questions very rapid. When you are preparing for argument of the Supreme Court i focus on trying to think about what questions will be asked in getting those answers down to one or two sentences because you know thats all you are going to get out before you are interrupted. Look at the breakdown, liberal conservative here. The liberals between them are 73 questions in the conservatives asked 32. The most active conservative question asked fewer questions with the least active liberal question. I think what you see since scalias death this is fairly typical but varies casebycase depending on the interest in the cases but sotomayor and are clearly the most active questions. We will see if gorsuch changes that. The last one in my favor case. I dont know how to pronounce it this is a naturalized citizen case that got a lot of publicity in the press last week and youll see why. The question presented is may and naturalized citizen be stripped of their citizenship in a criminal proceeding based on a false statement that isnt material to the question of whether they would have received citizenship or not . Does the lie had to be something that was known about them getting naturalization . There was little sympathy for the petitioner in this case and i think all of the justices thought this was a missed material misstatement that she made. On a refugee application she said that her husband was trying to avoid military inscription in the bosnianserb forces and in fact it turned out he was in the bosnian serb forces serving in a unit that was committing atrocities in schirippa nikka. Will the government have to prove that and if they do they have to prove materiality. Nevertheless it does look like shes going to win on materiality question when the government has to prove that. Justices across the spectrum were concerned that without a materiality requirement the u. S. Could strip citizenship or trivial misstatements. And naturalization application formats have you ever committed assisted in committing or attempted to commit a crime or offense for which you were not arrested . Think about that everyone. Chief Justice Roberts could think of one. Some time ago outside the statute of limitations i drove 60 miles an hour in a 55mile an hour zone. I was not arrested. Are you telling me 20 years later after i naturalized citizen you can strip me of my citizenship . And it went downhill from there for the assistant u. S. Attorney. Roberts said it could be up prosecutorial mistake. Anyone could have their citizenship naturalized and its up to the prosecutor to pick and choose who gets the naturalized and who doesnt. Kennedy is angry. Your argument is demeaning the priceless value of citizenship. You were here arguing for the United States. So there is a lot of heat in this case. Gorsuch does not get engaged in anything. His questions focus almost entirely on one thing at a criminal statute have two results. The first makes it a crime to procure naturalization contrary to law and makes it a crime to knowingly procure naturalization history of the statute is getting naturalization encompasses materiality. That seems to be a requiring connection between the lie and the entitlement where is a which is what the petition here was prosecuted on does not. Its contrary to law. In addition he says quote civil statutes do have materiality in them but the criminal once dont so we would have to add the word material to section 2045 silly its gives a soft ball answer. B would be if you are not entitled to begin with an a is if you were entitled to live in the process. The contrast here is very stark between chief Justice Roberts and Justice Kennedy who are infuriated by the governments arguments in this case. Justice gorsuch who doesnt talk about any of those components or what roberts called the extraordinary Unlimited Power to lack of materiality. Instead hes focused on the statute for language so i will finish their and turned over to carrie. My observation with these arguments suggest is that President Trump got in Justice Gorsuch someone who follows the statutory language, follows federalist principles, looks at bright lines above all else. Thank you. [applause] c thank you very much tim. I want to talk a little bit about the nomination process for Justice Gorsuch and what we have learned about that and how thats going to impact potential future vacancies on the court as well. We are have obviously got a great review of his oral arguments thus far. Unfortunately its a small sample but its what we have to go on for now. First what we learned from this past confirmation process. I think the first lesson that we learned and i think this is one of President Trump recently reiterated is that the success of his strategy of having an actual list of names to choose from. This is maybe the first president ial election process and memory where the Supreme Court was a major issue, the type of major issue that it was. We saw one if the voters coming back exit poll saying this is their number one issue in the reason i went to the polls. Those voters chose decidedly President Trump editing part of the reason there was so many voters driven to trump was because of that list. There were a lot of people who werent sure of where he was on various different policies but they understood his approach to appointing Supreme Court justices and tim pointed out he did appoint a justice who did what he suggested they would do. Its easy in the past for president ial nominees to simply say i will appoint someone to the Supreme Court who loves the constitution love salon leave it at that but as theyll no theres a wide wide variation in judicial philosophies and what he means by that and it makes a difference in the outcome of many cases. Knowing a little more meat on the bones of what did he mean by appointing someone. As a someone has a team in place that knows how to identify justice and having concrete names allows people to make the judgment call themselves. It appears many people said yes and i think Justice Gorsuch did come up a summary of carried on. Its an increased level of transparency that we havent seen in previous systems where he talked about who he talked to to come up with that list and we also have an idea Going Forward because each is recently said he is planning on drawing from the next Supreme Court vacancy from that so it gives us a lot more understanding of what that is. This is one of the most important decisions the president is going to make and as we can all see from the aftermath of this last election president obamas executive orders have been largely scrapped. His legislative accomplishment as already on the chopping block theyre certainly going to attempt to but just to sotomayor inJustice Kagan are going to down the court for decades so this i think is something that deserves to get more play in the Supreme Court and the president ial nominations and hopefully will Going Forward with this precedent being set. The success of Justice Gorsuchs confirmation process is going to play into the dynamics for the next confirmation. As we all know the stakes are presumably going to be higher simply because theyre not replacing Justice Scalia with someone by a republican president mainly Justice Kennedy, justice ginsburg, Justice Breyer but someone who republican chooses is presumably going to have more impact on the court. As i will talk about intimate outthink the confirmation of Justice Gorsuch will ultimately have a great impact on the court when you compared with the alternative that would have had a huge impact but to compare with the likely nominee of either obama or Clinton Presidency then you can see theres a huge contrast but comparing contrasting what we have with Justice Scalia and gorsuch isnt going to be a good contrast. The stakes next time we assume all shift the court depending on who they are replacing. Trump himself, President Trump has learned the confirmation of Justice Gorsuchs good strategy for him. Both regarded that as one of the most successful initiatives ps taken so part of the reason museum saying yes. That works really well for me and going back to the same kind of teammate has someplace to shepherd that confirmation process through. Similarly the g. O. P. Senate thought it was a real success. Mitch mcconnell who often gets raked over the coals by conservatives for teen too much of a push that kudos for that and well deserved. I think we also will seek gorsuch, he has only had one sitting so you may get one maybe two. I think thats likely going to confirm for the American People as well that it was a good choice. He is thoughtful. He has shown himself to be up to the challenge even having him a week to prepare for first oral arguments. He is obviously someone who is so wellqualified is up to it. Contrary to a lot of the redder beforehand the sky is unlikely to fall. There were not a great number of highly controversial cases but the one controversial case that people talked about his duluth in case more likely to go 63 or even 72 inJustice Kagan and maybe even Justice Breyer joining the majority in upholding religious freedom in the case. It will be hard for the left to paint death as a conservative blowout when i think what well see is probably a bunch of cases many of which arent going to get anyone terribly excited. For the democrats its going to be challenging because there is not a judicial filibuster anymore so that threat is out there and i think, i was a big fan of Justice Gorsuch all along so this comes from my perspective but i think he is so well qualified and had arrived by persons support the level of obstruction hurts their credibility for future nominees. Its going to be harder for them to make a case that each nominee is going to beat into the world when frankly Justice Gorsuch that was what pushed a lot of republican g. O. P. Members who didnt want to change the rules to do so. They are criticizing this guy who is unimpeachable they will vote against anyone on a partisan basis. We will see if he appoints someone who has the capacity to ignite the left prevent a lot of opposition. In terms of gorsuchs impact on the court the short ones will be minimal when you compare with Justice Scalia and more or less back to where we were a little over a year ago before Justice Scalia passed away. Also for context as a reminder when you look at the statistics we think the Supreme Court is being devices and all the big ones we hear about seem like its a huge ideological battle. Reality 40 of the cases each term are generally unanimous in terms of ever getting on the same page. Upward of a quarter of them in last two terms have been 100 unanimous. There is likely to be little impact in the 54 cases that do happen and dont happen at many cases looking at the last few terms. Last term error are for more that were hung juries after scalia died. These 54 decisions, thats not a gigantic number. When you think those would have fallen on ideological terms. A lot of them dont fall along those ideological lines. Ther