Kelly Ayotte, "The Judicial Confirmation Process: Guiding Justice Gorsuch"
Kelly Ayotte served as U.S. Senator from New Hampshire from 2011-2017. Ayotte went to Villanova University School of Law before clerking for the New Hampshire Supreme Court. In 2004, Ayotte was appointed Attorney General of New Hampshire. As Senator, Ayotte was influential in a variety of fields, serving on the Senate Armed Services and Homeland Security Committees, among others. Ayotte was also selected to help guide then-Judge Neil Gorsuch through the Supreme Court confirmation process.
Presented by the Federalist Society on May 1, 2018.
Transcript
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Kelly Ayotte: I am really glad to be here with you today, and I had to do a little of my own homework realizing that you were one of the three original chapters of the Federalist Society. Of course, which makes sense, because Antonin Scalia was a professor here before he became a Supreme Court justice, which is a very cool history that you have here. I also very much appreciate your hosting me because we've seen sometimes that college campuses aren't always the friendliest places for conservative voices, so I'm very appreciative of not only you but the University of Chicago Institute of Politics reaching out and asking me to come to campus. One of the quotes that I always enjoy when I think about talking on campus is William F. Buckley once joked, "Liberals claim to want to give a hearing to other views, but then are shocked to discover that there are other views." So thank you for presenting other views on this campus and being a part of a very important organization, The Federalist Society.
Kelly Ayotte: I'm sure that... I know many of you are at finals time, so you're probably feeling pretty anxious, and I at one point I remember being in your shoes and spent a period of my life as a real lawyer and it was a great period of my life. As you heard, I clerked for our state Supreme Court and then I spent four years in private practice and then went to our state attorney general's office and primarily prosecuted murder cases. And I got an opportunity that I kind of wanted to share with you because I know you're all thinking about your careers and what you might do next. But so I was at this law firm, the largest law firm in New Hampshire, in their litigation practice. And I realized that I wasn't getting a lot of litigation. And so I was carrying other cases around, I would get to do some hearings now and then.
Kelly Ayotte: But I realized that there was one partner in the firm that was doing criminal defense work. And so I went to him and I said, "I want to do some work with you on some of your cases." And so I got to do some lower level criminal cases, but no, no jury trials or anything, just hearings and arraignments and some preliminary work. And then one day he got asked to take on a court appointed case and every once in a while the firm would do that in federal court for a reduced fee. At this case, uh, I went, I was sent to federal court. I was sort of, I've been in legal practice, maybe clerked and then maybe like three years and once I get into court, it's this huge case of six defendants charged with racketeering, conspiracy up and down the east coast, multiple bank robberies, unfortunate murder of two armored car guards.
Kelly Ayotte: So this huge federal case. And honestly, I had done some state arrangements, but I'd never done anything in federal court. So, uh, here I am, this young lawyer, I've got all these experienced lawyers around me. So all I did was just say, okay, where is everyone facing in court? Uh, I'm just going to kind of do what they say. So I don't mock this up. And I had the opportunity then to go down and meet my clients, and you can imagine my client who was charged with these very serious crimes and he had a criminal history. He was a pretty tough guy. He sees me, this young woman, I've never seen such a look of terror on his face. Right? And so the only thing I can think to tell him was, don't worry, I'm not your only lawyer, right? So to make a long story short, I ended up working on that case as a second chair.
Kelly Ayotte: And my first jury trial was a three month trial in federal court and PCR and DNA evidence was relatively new. And so all the experienced lawyers on his case didn't want to deal with getting into the science. So they, they gave it to me. They said, "Here, you deal with that." And so I learned about PCR DNA evidence and I brought a... hearing in federal court and handled the expert evidence throughout the trial. And then after that I realized this isn't what I want to do with my life. I don't want to be at this civil firm. I want to be in the courtroom and I wanted experiences, so that's how I ended up at the Attorney General's office. I knew something about DNA evidence after that trial. I've got a job at the state attorney general's office in New Hampshire prosecuting murder cases, there's a murder prosecution unit there, and I was fortunate to get some of those big cases right away because not that many people had really looked at the PCR DNA by the time I knew a lot about it. So that changed the course of my career and that's why I like to say that was the period where I was a real lawyer. And I got to try some very difficult cases as a young lawyer. The reason I bring it up to all of you is you're all incredibly bright and capable, and there's not a reason why when you leave this Law School that you can't find whatever field you decide to go into with your legal background, something that you're passionate about and that you really enjoy doing. I'm not saying that even in when I tried murder cases that there weren't many mundane moments of reading group piles and piles of police reports and documents, that's part of being a good lawyer doing your homework, but you can really find some incredibly rewarding jobs, uh, with especially with your background. And then I went onto serve as Attorney General of our state and even had one chance to argue a case before the United States Supreme Court.
Kelly Ayotte: There's actually a case that bears to my name, Ayotte v. Planned Parenthood. That was quite an experience that you can imagine just by the name of the case. And so I've had a little bit of background in constitutional law, but it had been a long time other than obviously your responsibility in the Senate to examine judges and decide whether you're going to vote to confirm them. But in terms of being steeped in constitutional law, um, that was something I kinda had to go back to my law school days when I was asked to be the Sherpa for Justice Gorsuch. And I have to confess, when the administration called me, they called me in January after the election, I had just lost my Senate election by a thousand votes. Yeah, it was very close. And when they called me, I was quite surprised because of my history, if you looked at me at all online, uh, I was, I did not end up voting for the President when, after the Hollywood access tapes came out.
Kelly Ayotte: In fact, I wrote in Vice President Pence and usually the President doesn't forget these kinds of things. So I was quite surprised when they reached out to me to ask me to be the lead in helping them get their Supreme Court nominee confirmed. But I was very honored to do it and very honored because I thought that, and I believe that, Justice Gorsuch is extraordinary, extraordinarily qualified. Um, he'll be an exceptional Supreme Court justice. We've already seen that in his time on the court. And more importantly, I knew what was at stake for the country. In fact, in the election I had just gone through in 2016, you probably recall, because I'm sure it was a discussion on campus how the Republicans in the Senate really banded together and said we were not going to confirm a justice of the Supreme Court that close to the presidential election and that we were going to wait to see what the outcome of that election was, and then go forward with the Supreme Court confirmation process.
Kelly Ayotte: So, for example, I met with Merrick Garland, but obviously I was very much in favor of waiting till the election because of what was at stake for the country. And as someone who ran for office during that period, I can tell you that I've heard a lot about this in my campaign. Not only did I hear a lot about it from obviously people that had a different viewpoint than me, but also there was a lot of media and money spent on the other side attacking me about the Supreme Court issue with keeping that position open. So when I get called to do, to be the Sherpa for Gorsuch, I thought, you know, I've already endured all this. I want to make sure that we get someone good on the Supreme Court. Um, now one of the things that, uh, so the confirmation process itself as you followed, I spent about three months of volunteering to help Justice Gorsuch and essentially that process begins with...
Kelly Ayotte: I get a call from the White House, and they called me the day before they were nominating him that night... called me and say, "Hey, would you do this?" And I said, well, "Who's going to be your nominee?" Because I wanted to know who I'm signing up for. And then when I heard it was going to be Justice Gorsuch, I had looked at the list that was put out during the election because obviously I wanted to be familiar with who could potentially be nominated. And I was thrilled. So. So literally that night I'm sitting in my driveway, and I got on a plane and went to the White House that night and spent three months doing this. And it was similar with Justice Gorsuch too, because we met the next day and we're looking at each other going "Hi!", meeting each other. And we realized this is a brand new administration.
Kelly Ayotte: They had not, they didn't have a lot of processes in place. This is obviously an incredibly important combination. You don't know if you'll even get another Supreme Court nomination when you serve in the presidency. And one that was really a big issue in the election itself. And so we kind of laughed when we met each other because we realized that this is all new as a plenty of Supreme Court justices had been through this, but a brand new administration. So we were kind of working, working together on putting together the plan of how we would get him confirmed. One of the things I really admire about Justice Gorsuch and something I came to see up close and personal in this process is he is a very good writer. He's an excellent writer. He writes very crisply, crisply and clearly. Um, he tries to avoid legalese.
Kelly Ayotte: He likes to have writing that you can clearly understand. And I appreciate that because I think sometimes in the legal field we forget how we can communicate with average people about what the law is and that a person should be able to pick up an opinion and understand what the law is. And that's very important to him. And in fact, one of the things I've heard repeatedly during the confirmation process from Justice Gorsuch is he talked a lot about how Sister Rose Margaret taught him how to diagram a sentence, and this was something that had shaped his life. And that from him, it's not what you say but how you say it that attracts people to your cause. And so I think one of the things you will see as he develops and continues on the Supreme Court is you will see that his writing is excellent. On a personal level, he is just not only a brilliant person, but a really kind and warm, compassionate person.
Kelly Ayotte: And we hope he's going to be on the Supreme Court for a long time. And he runs about six miles a day so he's in very good shape. So I think that's going to bode well, but he runs, he rows, uh, he skiis, he's quite an athlete. The time that we spent together really was of going through and meeting the senators. We had about 70 meetings on the Hill with senators from both sides of the aisle, and then preparing for the judiciary hearings where you saw him testify. If you watched any of the hearings before the judiciary committee, which is quite intense because that testimony happens over two days and if it's very intense and the moots that go into preparing a Supreme Court justice to appear before the committee are very intense also. And kind of fun, by the way. It's kind of fun to be able to question an upcoming potential Supreme Court justice.
Kelly Ayotte: It's not an experience you get every day. When we went on the Hill and meeting those 70, 70 meetings essentially, I think it was over 65 senators at the end of the day. You know, Justice Gorsuch had some great meetings, but so many of them were really different as you can imagine. I mean, if you think about the contrast of, we met with Bernie Sanders, right? And all Bernie Sanders wanted to talk about is, uh, you know, "Justice Gorsuch tell me, tell me what do you think about that? You know, you've got to tell me about this, this, this border issue. You know, shouldn't everyone, you know, shouldn't be..." almost like Bernie wanted to talk about almost automatic voting. But it just really interesting to see the Justice interact with all the different personalities and the Senate from on the spectrum, from a Bernie Sanders to, uh, meetings that we had with people who you can imagine like a, you've got Mike Lee who clerked for Justice Alito and when Mike Lee met Justice Gorsuch, it was kind of like Mike Lee met the biggest rock star he's ever met.
Kelly Ayotte: Right? Um, and you can imagine the conversations that would occur about constitutional law, uh, you know, with the two of them having clerked at the Supreme Court. Some of the, you know, more, a lot of the meetings were very good, even with the Democratic Senators, but some of them were very politically contrived. Like, I'll give you an example, like Chuck Schumer. So we go and we go in to meet with Chuck Schumer and surprisingly, I know this is going to surprise you, but Chuck Shumer really just continuously asked Justice Gorsuch six questions that he knew there was no possible way he could answer. I mean questions like, "Is the President's Muslim ban unconstitutional?" Don't you think that may be something that might come before the court?
Kelly Ayotte: I love this one, "Did you think Bush v. Gore was correctly decided?" There was nothing political about that. So, you know, that those types of meetings and the one thing that I really came to appreciate also about being on the other side of this process as opposed to the senator asking the questions, is that Justice Gorsuch has a lot of patience and getting through each of the meetings and taking the time, even when someone was being overtly over the top political and was never going to be in your camp, he demonstrated an amazing amount of patience trying to answer these questions within the bounds of his judicial ethics. Even though you know, the only goal was, he was, I think, Chuck Schumer was trying to get Justice Gorsuch to walk out which he would never do. But, so not surprisingly, many of the Democrats asked about specific cases.
Kelly Ayotte: None of them will surprise you. Roe v. Wade, Citizens United, Heller. But there's one that I wanted to mention that I was a little bit perplexed by that they spent a lot of time on. And that is Justice Gorsuch's 10 Circuit concurring opinion in Gutierrez. In that opinion, he is highly, highly critical of the Chevron doctrine. Um, have you, any of you study the Chevron doctrine? Well as someone who was in a legislative body and is concerned about the administrative state, the Chevron doctrine is very important. But justice Gorsuch in that concurring opinion, when he was on the Tenth Circuit Court of Appeals was very critical of the Chevron doctrine. And as you know, Chevron requires federal courts to defer to the administrative agencies interpretations of Federal Law where the law is ambiguous and agencies and agency position is reasonable. Um, so Justice Gorsuch believes, at least from his opinion, we will see what he does on the Supreme Court.
Kelly Ayotte: He's called it a "judge-made doctrine for the advocation of judicial duty", and the end result of Chevron is that deference is given to the executive branch and the administrative state. And so I thought that it was fascinating, Justice Gorsuch did too, that the Democrats focus so much about his opinion in Gutierez and we're concerned about what he said about Chevron because it's one thing when they had President Obama in office, and they liked what the administrative state is doing. But here you had a new Republican president, President Trump, and you would think that if you have a justice that was at least skeptical about the authority of the Chevron doctrine, and how it gave authority to the administrative state, that now with a new president in charge, you would understand that that might work in your favor if you didn't like what that new president was doing, but nobody quite put it...
Kelly Ayotte: People really didn't put that connection together. And I, I thought it was a, it was fascinating that it was so short sighted that they would all ask me about this opinion that in some ways, now that you have a president of the opposite party, the fact that the Justice would be, you know, at least scrutinize how administrative decisions are made and how the law is interpreted in that context. You think you would want that. Um, the other issue that came up repeatedly, of course you probably followed it a lot, was a case involving a trucker. A trucker that, um, they tried to make Justice Gorsuch into being uncaring because it was a trucker who was out in the freezing cold, and his employer had taken action against him because he had unhooked the trailer from the truck portion, and Justice Gorsuch had essentially had decided with the employer in that context.
Kelly Ayotte: And I thought that was another example where people were losing the forest from the trees in this sense. When you're on the bench, your job is not, especially an appellate judge, your job is not to find a way based on who you think should win the case based on the compassion you have. Not that judges don't have great compassion, as Justice Gorsuch does, but it's to apply the law. And if you're suddenly going to make your decisions based on the outcome of who you think you should win in every case as opposed to what the law demands and what the law is, you can imagine where that is not going to result in a consistent application of law that people can follow. And so it was amazing to me how much they tried to make that case into saying that Justice Gorsuch was, of course, uncaring which was the farthest from the truth as someone who got to know him quite well.
Kelly Ayotte: Um, so one of the things that I think he also got repeatedly asked about that he's now I think demonstrated quite clearly that he is going to be an independent judge. If you have followed his decision, uh, recently on the immigration case, that is Henson. Sorry... Maybe you followed his opinion recently in Sessions v. DiMaya. Now that was a case under the Immigration and Nationality Act in which he actually joined the liberal members of the court because he thought the application of the law was unconstitutionally vague in terms of the deportation of a permanent legal resident who was of Filipino background. And I think one of the things that shows you is this is someone who really does view himself as he has described himself as a textualist, as an originalist. And he will apply the law. He will be looking in criminal cases to make sure there is fair notice, that the law is clearly defined.
Kelly Ayotte: He does not, you know, if you look at that opinion, he does not believe that judges should be stepping in the place of Congress to define terms. And I think it demonstrates quite clearly that, whether it's the Trump administration or it's another administration, perhaps of the opposite party, that he will apply the law in his philosophy consistently. That I knew from spending three months with him, that he's quite independent and he's got his own views and he feels quite strongly, but you can imagine in a confirmation process that this was like the number one question that people ask. And so I would like some of the Democrats now to say, okay, we have some independent, independent viewpoints. Um, so one of the, as I look at where the whole confirmation process with Justice Gorsuch, one of the things I wanted you to know about him that you wouldn't see in the paper is really the person.
Kelly Ayotte: So about two months agom he called me out of the blue and he said, "You know, Kelly, do you know we were doing a year ago?" I said, "Let me guess." It was the first meeting that we went together. We had just met that morning, so first meeting we went over with the Vice President, uh, and went over to leader Mcconnell and the Republican leadership in the Senate, and he was thoughtful enough to think, wow, I'm going to call Kelly and see what she's doing today. And he is very much like that. Um, are any of you, I assume clerking next year or doing...? So with his clerks. His clerks were very involved in the confirmation process. His clerks, he is, I think, an understatement to say that he is a mentor toward his clerks. His clerks, many of his clerks, former clerks, dropped every single thing that they were doing and came to Washington when he was nominated to serve on the Supreme Court.
Kelly Ayotte: They helped, you know, helped him in not only preparing for the hearings, but you could see that he really takes his responsibility of mentoring and bringing on the next generation of lawyers and leaders very seriously. So I think as he spends time on the Supreme Court, you will see him reaching out in terms of some of the civic education and also, um, you know, one of the things he talked a lot about in the meetings we had on the Supreme Court process was some of the work that Sandra Day O'Connor did on civic education and getting out and having people understand more what is happening in the court system. What is the, you know, the purposes of judges and lawyers, and that he feels that there's a big disconnect there, which I fully fully agree with. Now I, as someone who has had disagreements with this administration, the one thing I can say when you're watching a tweet storm and you don't quite know what's coming next.
Kelly Ayotte: I think the most important legacy that this administration will have will actually be the appointments that they make to the bench. And at this point they have, I believe, appointed 33 judges. In fact, those, I think, many of those choices, The Federalist Society has been very involved. If you haven't had Leonard Leo here come to speak, please do that. He can talk very intimately of obviously helping at least vet the list that President Trump put forward in the campaign. Then also being involved in helping know, helping that some of the candidates. And that's where if you think about this society, you're involved in how important the role, uh, this society is playing in helping, helping make sure that the judges that we have on the bench, uh, really have a philosophy if that is not legislating from the bench of, but respecting the separation of powers which is very important.
Kelly Ayotte: And our system of government and also respecting that each branch has its role as opposed to legislating from the bench, which unfortunately we have seen too much of the justice of the judges that president trump has had confirmed so far. You have justice gorsuch, you have 15 court of appeals judges and Seventeen district court judges. This, as I look at what's happening in the Senate, this is really in terms of a longterm legacy, so if you look in the election coming up in the fall, if for some reason the Senate were flipped, that would be very bad for this process in the sense that I think the Democrats unfortunately would confirm very, very few judges going forward. So it's my hope that the administration gets the opportunity to continue to appoint a well qualified judges to the court on how many of you get to clerk for them or perhaps someday serve on the bench yourself.
Kelly Ayotte: But just to put those numbers in perspective. 30 three total right now, President Obama had made to Supreme Court justice appointments. He 55 court of appeals and 268 district court judges. So there is a huge gap there in terms of perhaps what I would say conservative philosophy judges being appointed to our federal court system versus how many judges that are probably more of a progressive left you point that were appointed during the Obama administration. So this is a big gap. So this confirmation process in my view needs to continue if we want to have really a bench that is going to apply the law as it is and fairly. Um, and obviously I come from a conservative viewpoint so I don't want let judges legislating from the bench. And the reason for it, I think justice gorsuch has said quite well the reason for it is that the judges aren't elected.
Kelly Ayotte: Judges do not stand up to, you know, you can, when I was in the Senate, I lost an election. You can vote out a senator or representative. When you have a life-tenured judge, if they are legislating from the bench and they are interpreting things based on their viewpoint and where do they think the law should be as opposed to what it is, then it's really very undemocratic and it really doesn't reflect not only our separation of powers, but it doesn't reflect the will of the people as it should in this country. So I do hope that the administration continues to get the opportunity to appoint more judges to the federal bench. I think they've done a very good job in the candidates that they're putting forward, incredibly qualified people and I know some of you will, I think, get to chance to work directly with them.
Kelly Ayotte: My final point, and I want to open it up to all of you, just any question you want to ask me. Justice Gorsuch had to take the place of Antonin Scalia on the Supreme Court. Those are very big shoes to fill. He's quite conscious of that in the sense that he had tremendous admiration and respect for Justice Scalia. You should know that Justice Scalia's stuffed elk, Leroy, is actually in Justice Gorsuch's chambers. And what Justice Gorsuch has said about Leroy is that he is delighted to share space with Leroy because it turns out, "We share quite a lot in common. We're both native Coloradans. Both received a rather shocking summons to Washington DC. And neither of us is going to forget Justice Scalia." So I will say that none of us here will forget Justice Scalia, you're very honored to obviously to be at this law school that has such a personal connection with him.
Kelly Ayotte: But I believe that Justice Gorsuch will carry out his conservative legacy on the court in his own way. But we will see him serve on the court for decades to come and he will, as we've already seen him be, an excellent Supreme Court justice. So let me open it up to any questions you have for me about anything really. I mean public policy, running for office, Justice Gorsuch to the Supreme Court. You name it.
Question 1: So when the Senate Republicans were not holding hearings for Merrick Garland, they said that it would be wrong to hold hearings during an election year. In 2020, when President Trump is up for re-election, do you see the Republicans backing down from this position if another vacancy should arise?
Kelly Ayotte: On the Supreme Court? Yeah, I think, I think what they... what the Senate Republicans really what position that we took was yes, heading into the presidential election where also you have... the one thing that was a big part of this too, was that the balance of the court was at issue. I mean that position
Kelly Ayotte: we knew it was a shift in the court. There was no secret about that, right? I mean this notion that with all respect to Judge Garland who is a, by the way Justice Gorsuch's first call when he got nominated was to Merrick Garland because he knows him and he has respect for him, but there's not a doubt that his philosophy would be quite different on the Supreme Court than an Antonin Scalia and that that would be a fundamental shift of the court. So that was a big driving factor too. So I can't answer the question of going into an election year, whether they were in 2020 or heading towards 2020, 2019, heading, you know, six months before that election what the Senate Republicans will do. But the circumstances have changed too because the Democrats made the decision during this confirmation process that they were going to filibuster Justice Gorsuch and bear in mind that I was in the Senate when Harry Reid made the decision because they wanted to pack the DC appellate court, that they would eliminate, essentially, make it a majority vote.
Kelly Ayotte: So eliminate the 60 vote threshold that had been, uh, the threshold for approving not only for all the judicial nominations and they changed it for district court and they changed it for the Court of Appeals. And the driving factor behind that was they claimed that the Republicans were obstructing, and we were not obstructing. In fact, we had approved more judges. If you look back at the numbers of that, at that point, the Bush administration, so there, there really were not obstructing, but it was really used. He changed the rules then because they wanted to make sure that the appellate court had judges that were going to be friendly to the administrative state. And so that set the stage for what happened when Justice Gorsuch went through. You know, I talked to a lot of my former colleagues on both sides of the aisle in this set as I did this sherpa responsibility about changing the rules.
Kelly Ayotte: And I said, you know, you're going to change fundamentally change the institution. Once you change the Supreme Court Justice to a majority vote from 60 vote threshold, which is what they did during the Gorsuch's, you know, confirmation because they filibustered him. Then you're going to change the nature of it because the minority parties' power in these issues is going, it's going to diminish significantly. So now we're in a situation where you have if Republicans are in charge and you have now they decided to force Republicans hands to change it to 50 votes because they weren't going to approve Gorsuch. By the way, if you weren't going to approve Gorsuch, who were you going to prove that this President might nominate? Um, because he was imminently qualified, I mean he had spent 10 years on the Tenth Circuit of Appeals. I mean his resume, like, read Supreme Court justice and the way he conducts himself, you know, he conducted himself on the bench in a way that was quite appropriate for the judiciary.
Kelly Ayotte: So, so I think the fact that the votes have now changed if the Republicans are in charge of the Senate, um, who knows, they would be probably likely to confirm to go forward. If the Democrats are in charge of the Senate, there's no way. There's no way that, that, that the President will get that nomination. In fact, if the Democrats take charge of the Senate, I'm worried that very few judges will get through because they have been essentially blocking, you know, even on the executive nominations, um, had been very aggressive. I mean if you look at the vote that Mike Pompeo just got who he had a very strong vote when he was CIA director, but now that he's Secretary of State lots of people would not vote for him on the Democratic side of the aisle. That was mostly less about him and more about we're just going to oppose anything that President Trump does.
Kelly Ayotte: And like I said, I don't always agree with the president, but I think that the president needs this team, otherwise you can't, you know, you can't carry out the government. Yes.
Question 2: We've had a fair number of the new judges come through, and they've been pretty understandably reticent about talking about the actual confirmation process. I was wondering if you...
Kelly Ayotte: Well, cause they don't want to because they hopefully would want a promotion and they want to get to the next process so they can't say much.
Question 2: So I was wondering if maybe since you were so involved, if you can talk a little bit about when a judge is actually preparing, you know, you go through the Senate committee hearing to go before the Senate, maybe some of the things that you saw were particularly challenging both in the Gorsuch context but you were pretty involved generally speaking just on a more abstract level, like what were things that judicial nominees had trouble with or you thought were easy that maybe would be...?
Kelly Ayotte: Well, I think one of the hard things for when you are a judicial nominee, especially at the level of the Supreme Court, an adjustment that you have to make when that spotlight comes on you, is something that I was used to, right? Because when I served in the Senate and for example, my election was one that was, even though I was running in New Hampshire, had a national focus and so I was quite used to what it's like to have your life turned upside down in front of the public and every word you've ever said misinterpreted or changed or...? Um, and I think that's a very tough transition when, you know, you've been on the bench Justice Gorsuch has been on the bench for 10 years, very happily, you know, doing this job every day in a collegial manner with his colleagues on the bench. And when you're put in that political spotlight, I mean, they go back to if they can find something in elementary school you said wrongly, they're going to find it.
Kelly Ayotte: Um, as you know, in the confirmation process of Justice Gorsuch, they went back to things he said in college and he had to, you know, explain. Things he said in law school. Everything that he has written. A lot of people that you associate with. So I think the hardest thing in that confirmation process for people who are into it from private practice or even from being in the Department of Justice is that spotlight, which is searing and it's not always fair. A lot of the things that you get criticized for, you can't expect fairness. I mean you'd like fairness, but it's just never going to be fair. And so that I think is the hardest thing for nominees. The other piece of it is, is that understanding that when you're preparing for the judiciary, hearing that a lot of the questions you get are totally unfairly old questions.
Kelly Ayotte: Okay. So one of the things that I did a lot in the preparation of Justice Gorsuch is I would ask questions that were a little bit out of the blue on current topics because they're current popular topics in the popular press. And you have to be prepared for them. And also I think also thinking about like putting the tough position where you know, the President sometimes says some inflammatory things, uh, you know, preparing the nominee. If you're confronted with something the President says, how are you going to handle that? You know, how, if you're confronted with something, someone else said that within, in an organization you've been associated with, how are you going to handle that? And the idea is not to have surprises, right? Because really if you vet someone carefully enough and you have enough tough moves, hopefully the moots are tougher than the judiciary hearing. And I can tell you that many of the moots that Justice Gorsuch had, in some ways were tougher than the judiciary hearing because we were tougher on him. And there was a great group of people who helped do that with fantastic legal minds who knew the decisions inside and out. And then there were people like me who I, you have, I have some background in constitutional law, but really the political world is where I add value in a moot.
Kelly Ayotte: I can imagine though, in the confirmation process where you have district and appellate judges, they have to be very careful. If they say something in this room about a particular senator or an experience where they thought they were treated unfairly, that can be used against them if they're nominated to a higher court. So I can completely understand why they would never want to say anything about it here. Me, it doesn't matter. I will never serve on the bench. So yes,
Question 3: You had harsh words to say for judges who legislate from the bench. This turn in the Supreme Court is poised to almost certainly overturn numerous states' democratically elected governments, long running practices for managing their public workforces, and there's also maybe, not as certainly, but maybe poised to generate a huge shift in the way that discrimination law operates in masterpiece cake shops. In what, what basis is there for distinguishing with those decisions from the type of legislating from the bench that you criticize? Other than that, it advances conservative causes.
Kelly Ayotte: One of the, one of the Justices' important functions is to protect people's individual rights. Whether it's a constitutional right, um, you know, if you think about some of those cases that you raised, people are raising those issues before the Supreme Court because the individuals, for example, in the collective issue with the unions and the mandatory fees that people have to pay, regardless of whether they think they should have to pay them. I mean the individual plaintiffs are raising issues for their own rights in those cases. So I think there are ways that, yes, you can issue an opinion that has sweeping consequences, but that doesn't mean you're legislating from the bench. You could simply be applying the law or applying the Constitution to protect individual rights. Um, and to interpret those rights. So I can't say that I know all the details.
Kelly Ayotte: Obviously I'm not a litigant in that case, so I can't give you all the ins and outs of it. I know some of the big cases in general that are up before the Court. Um, and we don't know how the Justices are going to rule on them yet, but I don't see that as legislating from the bench. If you are actually looking at it as protecting people's rights and applying the law. What I think is legislating from the bench is when you don't necessarily like the law, the law is vague. And so you essentially, as a judge, you make up the law how you think it should be. In many times, you should be remanding that for the legislative body to make those decisions as opposed to you and the judiciary making those decisions. That's what I mean when I say legislating from the bench. Yes.
Question 4: So I'm from Pasadena, California where the Ninth Circuit is. I think there are seven or nine open seats on the Ninth Circuit right now but there are no nominations. Do you see in the next couple of years do you see those seats being taken up or do you think those will remain open?
Kelly Ayotte: I think there will be nominations made for them if, uh, you know, certainly, I mean that circuit is very one-sided circuit. So, uh, I believe that there will be nominees put forward and you know, we're at a point right now because it's, uh, there's still, there's still a certain Senate process, processees that have to be followed, that allows still an extraction of the timeframe. Um, because it's a long process and going through the vetting and the questionnaire and then getting through the committee process even. So, um, so I don't know where the administration is on those particular nominations, but I can't imagine why they wouldn't want to at least put some judges on that court that are much more of a constitutionalist or textualist then what we see now there, which, that Court loves to legislate from the bench. Yes?
Question 5: So it sounds like you are both troubled by the partisan nature of the whole process, but also you seem to have raised it a little bit...
Kelly Ayotte: Actually that's a good frame of it. So in an ideal world, I don't think we should be where we are, but I can't have a Supreme Court justice, you know, we just had an election over the Supreme Court justice. I actually, if you like, for example, in the Democrats essentially eliminating filibustering Justice Gorsuch and forcing the Republicans to change to 50 votes on the Supreme Court. I didn't like that. I didn't think that was necessarily a good thing for the institution in the longterm, but I'm not sure they were left with any other choice. They really weren't, unfortunately.
Question 5: Fair. So you said that your committee, I think you said that you decided not to hear, not to invoke...
Kelly Ayotte: I didn't serve on the judiciary committee so I wasn't a committee. But as an individual senator, I made the decision that I agree with that decision to not have the hearing. Yes.
Question 5: And then you also said that maybe before, if the same situation comes up before the next election and the Republicans were in control, they might not do the same thing basically because they are still in a position to vote in a justice.
Kelly Ayotte: I think the whole process unfortunately has gotten now that it's a 50 vote threshold for the Supreme Court and not a 60 vote threshold. I think that will change the nature of the question for whoever is the party in charge. I really do.
Question 5: So I guess my two questions for you, one...
Kelly Ayotte: And so we're going to be in these elections where who controls the Senate is going to be what happens on the Supreme Court. I'm sorry to interrupt you.
Question 5: No problem. Do you think that the Senate has any... What is the extent, do you think of the Senate's obligation to vote on a nominee offered by the President and what do you think are good, tough questions to ask a potential Justice, who is going to serve for the rest of his or her life? Um, you know, what, what are good measures of whether or not to vote on someone, you know. Obviously Justice Gorsuch has a impeccable record, so does Justice Garland. You know, what, what, what do you think are good, tough questions to ask?
Kelly Ayotte: Well, I actually think you raised some really interesting and important question about how you view your role as a senator because, and there's a difference. I mean, there's a different philosophy in the Senate. I think more and more there are... it used to be historically, I mean, Justice Scalia, I think that I think 98 to zero, right? So nobody, nobody voted against him. So the philosophy used to be that if the person was qualified, if based on their experience, their academic credentials, their intellectual capability, their judicial temperament, not their philosophy, if they were qualified, they would be confirmed to the US Supreme Court. That changed, um, with the nomination of Judge Bork, wanting to be Justice Bork. But that really changed with Judge Bork because he was really blown up. He was really the first judge to be questioned and blown up based on his philosophy as opposed to his educational background, his qualifications,
Kelly Ayotte: his capability. And that, if you look historically, is it really signaled a shift in the Senate. There are still senators who believe if you are qualified, then I will vote for you even if I don't agree with your philosophy. And I can tell you that there are many Obama judges of the lower courts either, not the Supreme Court, I never got to vote on a Supreme Court justice. So District Court or Circuit Court of Appeals. That, if I were president, I would have never nominated them. But I did vote for them. So it's a tough question and I think now more and more at the Supreme Court, you see people voting less about just that they're qualified and more so what's their philosophy. And in terms of determining that people are going to look at their judicial history, their legal history, what issues, what they've said.
Kelly Ayotte: And that's why that becomes a big issue in the confirmation process. I, again, I have voted for judges I would have never appointed. So, um, I, I think that looking at someone's qualifications are appropriate, but, and I don't know what I would've done if we had, if the election had gone differently and I were still serving in the Senate and I had to contain, had they considered, you know, Merrick Garland's nomination, I would've had to ask him. I would want to know more about his judicial philosophy. He had a very different, if you look at his decisions on administrative law, um, he had a much more expansive view of how you should, as opposed to a Justice Gorsuch view, of the interpretation of the administrative agencies' discretion in terms of interpreting what the law is when it's unclear. Uh, and so I would want to know much more about his philosophy of how he would, how to use the Chevron doctrine and how he views the administrative state.
Kelly Ayotte: To me, that's a very important question because I've seen the administrative state grow and grow and take much more power and it's something that I care about. So that's an area where I would have wanted to explore. I think more and more the downside of not having the 60 vote threshold for any of the federal judges is that you are going to have less centrist appointments. Where you, when you had to get some senators from the other side of the aisle, you had to at least work the other side and try to get someone that would fit in this space that both sides would vote for. And so I think you're going to see less of that.
Host: And unfortunately we're out of time. But please join me in thanking Senator Ayotte.
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.