​Justice Ruth Bader Ginsburg has been under extensive scrutiny recently for some comments that she made that were highly critical of Republican presidential candidate Donald Trump. Among her comments was, “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as president… For the country, it could be four years. For the Court, it could be – I don’t want to contemplate that,” and she joked about wanting to move to New Zealand in the event of facing a Trump Administration. She went on to say that Trump is a “faker” who lacks consistency in his political views and who “says whatever comes into his head at the moment. He really has an ego…”
 
Donald Trump fired back, holding, “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly… I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.” He then tweeted that she had disgraced the Court and should resign because her “mind is shot.”
 
Apart from the semantic problem of Ginsburg and other members of the Supreme Court being justices and not judges, it is perfectly fair for Trump to be upset. He is not the only one who has expressed outrage or at minimum dismay over Justice Ginsburg voicing loudly and clearly her opinion on the 2016 presidential election.
 
I am not convinced that it was wise for her to have made those comments, but the response seems to me to be overblown given that it does not present any legal conflicts of interest (nor does it reveal any preferences that we did not already know to be underlying, as Ginsburg has been one of the staunch liberals on the Court since her appointment by President Clinton), and absent a problem with the law, the objections are theoretical and not practical problems. 
 
While we sometimes like to think of the Supreme Court as the legal rather than political branch, we often find in practice that it is difficult to divorce law and politics: two equally intelligent legal scholars can see very different things in the Commerce Clause, the implications of which impact whether we have civil rights protections, just as they can reach different interpretations of whether affirmative action constitutes discrimination (a word left undefined in the Civil Rights Act of 1964), and in seeking new jurists, politicians are far from apolitical even when purportedly focusing on the law. There are, in these actors nominated by the president and confirmed by the Senate, inherent issues of politics that we just don't always seen as transparently as in these recent comments.

People have ideas as to the normative desirability of the Supreme Court (and courts more generally) being comprised of dedicated judges who are being neutral arbiters amid complex legal challenges, in contrast with the obviously politicized legislative and executive branches. Indeed, Chief Justice John Roberts characterized his own job as that of a neutral umpire calling balls and strikes, rather than pitching or batting, which is not to say that that comment did not result in some measure of challenge. The reality, which we have seen in the confirmation hearings (or lack thereof) to fill the late Justice Scalia’s seat, is that the Supreme Court is indeed highly political, a fact in the absence of which the President would not so characteristically nominate judges who are ideological allies and the Senate would not prevent hearings because of political opposition to the sitting president.
 
The fact of the matter is, Justice Ginsburg here voiced a preference that was hardly surprising.  Indeed, the only justice for whom the voicing of a political opinion on Donald Trump would present genuinely new information would be Justice Kennedy (and maybe Chief Justice Roberts, though he is a reliable conservative), and if the issue with Ginsburg’s comments are of the law and the proper role of the Court in the political process, then obviously we would need to hold all of the justices to the same standard. More important is the question of whether these comments compromise her integrity to the law as a Supreme Court justice. I do not believe that they do, with the potential caveat that she might be called upon to recuse herself should Trump be personally a party to a lawsuit before the Court.
 
The Supreme Court has gotten involved in far more controversial and legally “squishy” issues, from Justice Scalia hunting with then-Vice President Dick Cheney within three weeks of granting cert to Cheney’s appeal pertaining to the Bush Administration’s energy task force, to the notorious Bush v. Gore (2000), about which former Justice O’Connor has since expressed regrets because it it “stirred up the public” and “gave the Court a less than perfect reputation.” Somewhat more superficially, people from both sides of the aisle responded pointedly to Justice Alito’s visible opposition (shaking his head and muttering “Not true, not true”) to comments that President Obama made of the Supreme Court’s Citizens United v. FEC decision during his 2010 State of the Union address, with Senator Hatch characterizing the response as “rude” and Senator Feingold calling it “inappropriate” for Justice Alito have done so. (In fairness, legal and political science scholars were surprised by both the president’s calling out the Supreme Court specifically, as well as Justice Alito’s response to the charges). And of course, the Supreme Court has involved itself in a number of hot-button issues (e.g., abortion, affirmative action, healthcare, immigration) that heighten partisan divisions among the parties. While we like the idea of a more apolitical (relative to the other branches) judiciary, it is not a notion that is well supported in recent years, and the high numbers of 5-4 splits along party lines only reinforce that.
 
Perhaps there should be a rule (not a legal, but rather simply a more practical and normative rule) that justices should not involve themselves in any way in a presidential campaign outside the strict context of legal challenges brought before them, and for which at least four justices must agree to grant cert. Additionally, unlike the race-based challenge that Trump made with respect to US District Judge Gonzalo Curiel, it may be altogether fair to argue that given personal challenges to Donald Trump (as opposed to voicing a generally liberal ideology in opposition to the preferences that Trump is expressing in his campaign), she might be persuaded to recuse herself in the event that the Court is judging him personally, as opposed to a Trump Administration more broadly defined should he be elected in November. But until that happens, the opposition to Ginsburg seems to be rooted not in the law (she did not break any laws and has not compromised her judicial integrity with respect to any pending cases), but in a rather unrealistic (though perhaps nice) normative desirability that Supreme Court justices stay out of elections and other salient current events. The reality, whether we like it or not, is that we have seen far more egregious involvements by the Court, and what we witnessed was an outspokenly liberal ("notorious RBG") speaking her mind about the election, outside the context of a specific case in which she is acting in her capacity as Supreme Court justice. It may not have been wise for Justice Ginsburg to have made those comments – perhaps she should have risen above it, particularly given her current position on the Court – and it is unclear who “wins” as a consequence of those statements (other than those enjoying a nice Twitter war), but it is not necessarily “wrong” (certainly not from a legal perspective) for her to have done so.  

In Planned Parenthood v. Casey (1992), the Supreme Court evaluated in light of Roe v. Wade (1973) the constitutionality of a Pennsylvania law mandating a 24-waiting period prior to obtaining abortions, and in so doing established a new standard according to which the Court determined whether the purpose of the given restriction was to impose an "undue burden" on the woman seeking the abortion. An undue burden was construed as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." This landmark holding on abortion policy paved the way toward state innovation in abortion policy to test the reach of this "undue burden" provision that the Court's 5-4 majority laid out. 

In the years since, states have answered the call. For example, 43 states prohibit abortions after a specified point of the pregnancy, typically fetus viability; 19 states prohibit late-term ("partial birth") abortions; 32 states and the District of Columbia prohibit the use of state funds except where federal funds are available (to protect the life of the woman or in the case of rape or incest); 17 states mandate that women receive counseling prior to obtaining an abortion; 27 states mandate that women wait a specified amount of time between receiving counseling and receiving the abortion (typically 24 hours but as many as 72); and 38 states require some parental involvement in obtaining an abortion for a minor, with 25 of those states requiring parental consent and 13 states requiring notification but not consent of the parent.

Whole Woman's Health v. Hellerstedt (2016), decided in a surprise 5-3 decision with Justice Kennedy (also in the majority in Planned Parenthood v. Casey) joining the liberal coalition,  centered on the Texas State Legislature's HB 2, passed in 2013 and signed into law by then-Governor Rick Perry. HB 2 out a number of provisions pertaining to abortions under the guise of protecting the health of the women in question but with the ultimate effect of precluding providers from meeting standards necessary to lawfully provide abortion access to those in need. Among those provisions were that physicians performing abortions have admitting privileges at a hospital within 30 miles of where the abortion was being performed, and that the abortion facility meet the requirements of ambulatory surgical centers despite the fact that abortions are highly safe outpatient procedures (indeed, evaluating the risks of childbirth versus abortions, compared with a mortality rate of 8.8 deaths per 100,000 live births, there is a mortality rate of 0.6 deaths per 100,000 abortions). While nominally still allowing abortion access, the legislation was deemed to have the effect of all but eliminating abortion facilities in the State of Texas. 

To impose marked restraints on abortion access is not unheard of. The State of Missouri has only 1 abortion provider in the entire state, and 89% of counties in the United States have no abortion provider. States are not always overt in their means of excluding abortion access, rather imposing requirements in the name of "safety," with the notion that satisfying the requirements of being a surgical suite will be positively correlated with the health outcomes of the abortions performed there. (Remember, even absent this requirement in most states, the mortality rate is still extraordinarily low). While meeting high standards of medical care is all well and good, the types of regulations that the legislation targets involve such issues as the width of corridors and the size of procedure rooms, neither criteria of which are demonstrably associated with better patient outcomes. (After all, when in the first ten weeks of pregnancy, it can be carried out without any procedure but rather with the so-called "abortion pill," or Mifepristone (RU 486)).The marked implications of such legislation has garnered it the title "clinic shutdown" law, and in the aftermath of the legislation's passage, while Texas previously had approximately forty abortion clinics, approximately half had closed due to the requirement of admitting privileges, and it was estimated that only eight or nine would remain if enforcing provisions requiring that the clinics meet the requirements of surgical centers. 

In his majority opinion, Justice Breyer noted the absence of scientific evidence for the necessity of HB 2, writing that "there was no significant health-related problem that the new law helped to cure." The majority cites a number of studies brought to the attention of the Court, noting that among first trimester abortion complications, the highest rate of major complications was less than 0.25%, and that even in the rarer second trimester abortion, the rate of major complication was still less than 0.5%, and that complication only required hospital admission 0.23% of the time and not necessarily on the day of the abortion (making admitting privileges far from a necessity, particularly given that patients will not be turned away from an emergency room). Thus, the majority notes, "We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health. We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case."

While not providing evidence in support of the health advantages of this different standard of care, the Court notes that the admitting privileges requirement appeared to have had a marked impact on abortion facility closures, with the number of women of reproductive age living 150 miles or farther from an abortion provider going from 86,000 to 400,000, and the additional problems of longer waiting times, fewer doctors, and increased crowding. While increasing the driving distance is not alone enough to support a claim of undue burden, the Court said, the increases constitute an "additional burden" that combine with the abortion clinic closures and the virtually absent proven health benefit to support the District Court's finding that HB 2 constituted an "undue burden" in violation of Casey.

A number of states have so-called TRAP (targeted regulation of abortion providers) laws, which the Court's recent holding will implicate. Not unlike Casey, while affirming the right to abortion, the Court here still did not hold that any restriction on abortion access constitutes an undue burden. Indeed, effecting a change that would have the result of some clinic closures might still pass constitutional muster. But the intent and effect of the legislation here, given the absence of scientific support and the clearly marked policy effects, were both to restrict if not altogether preclude abortion access to an extent within the realm of the "undue burden" that Casey sought to avoid in negotiating reproductive freedom at the national level and the right of states to forge their own paths (within bounds). What remains to be seen is the extent to which Texas abortion facilities will reopen in the aftermath of the decision, and the trajectory of policy in the other states that had enacted similar legislation (for example, Arizona, on which I wrote previously). 

The Court appealed to states' legitimate interest in protecting women's health, with police powers -- typically, the protection of health, safety, and welfare -- typically falling within states' regulatory prerogatives under the Tenth Amendment. What is, of course, at odds in the abortion debate is what precisely constitutes protection of health, safety, and welfare. As Breyer finds, "The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so... Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context." The Court rightly emphasized the health benefits, or lack thereof, provided by HB 2 (and by extension, other TRAP laws imposed by states) relative to other policies according to which women may obtain abortions. But an important additional dimension of states' protection of women's (indeed, citizens') health and safety is that in the absence of abortion access. 

By making abortion less accessible (reminder: these are laws on the ability to provide abortions and thus do not create exceptions for rape or incest), women are more likely to obtain abortions later in their pregnancy, and while abortions are very safe early in the pregnancy (when the vast majority of abortions are performed), the risks do go up when performed later (though as the statistics cited above indicate, the risks are still low). If unable to obtain a legal abortion, one may be more likely to seek an illegal, unregulated abortion, thus subjecting oneself to a host of potential harms to which one is not exposed when in regulated medical care. Indeed, cracking down on legalized abortion has been argued by some to have more impact on the safety than the incidence of abortion. And if one is unable to provide adequate care to a child but is unable to terminate the pregnancy, we are not only sentencing women to motherhood but are faced with a further question of whose life we really are protecting. If we are only protecting life before birth, we might need to reevaluate what we're fighting for. 

The Supreme Court's decision in Whole Woman's Health made important progress toward cracking down on overly restrictive state legislation and better defining what falls within the realm of "undue burden" on women's reproductive choice. By implication, the similar laws in effect in dozens of other states will likely be determined to be unconstitutional, though time will tell the speed with which we see policy changes go into effect.

In its unanimous opinion delivered on June 16, 2016, the Supreme Court decided the case of Universal Health Services v. United States ex rel. Escobar regarding the False Claims Act. The opinion was authored by Justice Clarence Thomas, and held that companies can be subject to False Claims Act liability and implied certification claims, under two conditions: 1) when the claim does not only request payment but also "makes specific recommendations about the goods or services provided"; and 2) the defendant's failure to disclose noncompliance with requirements must make its representations "misleading half-truths."   

The case arose in the aftermath of the death of a Medicaid beneficiary being treated by Arbour Counseling Services, a behavioral health center operated by Universal Health Services and in which many of the staff were lacking in proper certification and supervision (indeed, the treating psychologist who identified herself as having a PhD failed to disclose that it was received from an unaccredited Internet college at that the State of Massachusetts had denied her application to be licensed as a psychologist; further, the medication was prescribed by one who lacked the authority to do so absent supervision). The clinic misrepresented the staff credentials, submitted numerous claims for Medicaid treatment, and the Medicaid program promptly paid those claims to Arbour, which has been subject to a number of investigations pertaining to such issues as billing practices, poor care, and inadequate staffing: "At Arbour-HRI two years ago, public health officials found the hospital failed to provide active treatment to some patients, whose diagnoses included bipolar disorder and paranoid schizophrenia. Instead of attending group therapy, inspectors said, patients spent many hours sleeping or wandering the hallways — an allegation the company disputed."

The First Circuit Court of Appeals held that implied in claims submissions is compliance with conditions for payments. To determine whether a claim was indeed fraudulent, one must ascertain "whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition for payment" (780 F.3d 512 (2015)). The Court granted cert to resolve the lower courts' disputes as to the scope of implied false certification theory of liability.

The Supreme Court addressed the question of what precisely it means to submit false claims under the False Claims Act (FCA), given that the services in this case technically were provided (albeit from those without proper qualification or transparency). The Supreme Court held that the failure to reveal this information regarding treatment providers was actionable under the FCA. Prior to this ruling, while implied certification has been the subject of a number of suits brought against providers, the federal courts have been divided as to the proper resolution of the legal challenges.  The recent Supreme Court decision has been seen as striking a balance between combating health care fraud claims and protecting against what some might construe as "frivolous lawsuits" over the FCA. Indeed, the Court clarifies that "the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations" and the Court did not address the issues of medical malpractice of which Arbour and other Universal Health Services-owned hospitals have been accused. While a number of health providers may newly be concerned regarding the potential FCA-related consequences of non-adherence to Medicare and Medicaid requirements, the Court's emphasis on significant legal and regulatory contractual obligations appears (perhaps consistent with its being unanimous in a time of marked polarization in both the legislative and judicial branches) a very reasonable approach to balancing ensuring effective enforcement while not leading to excessive litigation.  

On Tuesday, April 19, the Supreme Court heard oral arguments on Universal Health Services v. United States, ex rel Escobar, in which Universal Health Services, Inc. made the argument that providers ought not be held liable for fraud for failing to comply with particular regulations. The outcome of the case will have important implications for the number of False Claims Act suits that are brought against a number of industries but healthcare providers in particular, with two-thirds of whistleblower suits targeting healthcare entities. 

At the heart of the case is the False Claims Act, legislation enacted amid the Civil War and awarding treble damages against government contractors that "knowingly presen[t] . . . false or fraudulent claim[s] for payment.” The majority of cases brought under the Act are by whistleblowers, who can then recover 15-30% of the government's overall recovery. 

Supporting UHS are a number of healthcare groups such as the American Medical Association and the American Hospital Association, which wrote briefs for the case in support of the petitioner's argument that imperfect compliance with the law does not constitute fraud and that the Court should not open the door to meritless lawsuits. Opposing this position are whistleblower groups and mental health advocates, holding that the law is in place to protect patients against being subjected to substandard care, of which Universal Health Services has been frequently accused, with a number of their facilities under Department of Justice investigation, Departments of Children and Family Services refusing to send children to some of their units due to patient conditions (see my previous post on UHS maltreatment), and the Commonwealth of Massachusetts recently requiring that four UHS-managed facilities submit correction plans given patient care and life safety violations. UHS is no stranger to False Claims Act suits across the country, with the company and two subsidiaries settling in 2011 for $6.9 million claims that they had provided substandard psychiatric care to adolescents and had engaged in Medicaid fraud, and with 25 of its behavioral health facilities under federal civil investigation under over alleged violations of the False Claims Act. 

Justices Kagan and Sotomayor appeared during the oral argument to be skeptical of the argument made by UHS, with Justice Sotomayor asking early on, "I always thought that when you asked for payment, you're making a promise: I did what I agreed to do. Pay me, please. That's, to me, what's sort of understood. If I hired you to provide me with doctor services, you ask me for money, I'm assuming you provided me with doctor services. And you know you didn't. Why isn't that a fraud?" Justice Kagan noting that the issue at hand was quite analogous to the type of fraud that the False Claims Act had been meant to address -- namely, contractors' selling to the government non-functioning guns and other materials to the United States during the Civil War -- and she noted, “I would think that this is the exact same --that the contract was for a doctor's medical care, and a doctor's medical care was not provided." Chief Justice Roberts, however, was more sympathetic to UHS's arguments about the harshness of applying the False Claims Act given the complexity and extensiveness of the applicable (thousands of pages of) regulations in challenging cases. Justice Breyer sought to distinguish between garden variety breaches of contract and those violations that could accurately be construed to be outright fraudulent under the FCA. 

How the Court ultimately will come down on the case is ultimately unclear, apart from the quite vocal and pointed Justices Sotomayor (pro-relator) and Roberts (pro-contractor). Should the Court be split 4-4 along party lines with the ninth seat not yet filled, the 1st Circuit's 2015 holding will stand (though it is worth noting that this is an issue of inter-circuit conflict, with the 7th Circuit rejecting the 1st Circuit's argument in a separate case). The 1st Circuit had validated the notion of "implied fraud" -- that is, that even absent actual misrepresentation, claims can be misleading because demands for payment contain an implicit misrepresentation (e.g., the provision of certain medical services that were ultimately deemed substandard). 

While a case of fraudulent claims, at first blush, does not appear the stuff of front page headlines, the implications of the case are vast, with Universal Health Services being the largest provider of inpatient behavioral health services in the United States -- boasting facilities in 37 states, Washington DC, Puerto Rico, the U.S. Virgin Islands, as well as the United Kingdom -- and managing approximately 25% of inpatient care. Touching on so many lives across the country, the company is highly influential in the lives of its patients and their families, but with that power comes the responsibility to adhere to certain standards of care, standards that a number of suits and reports have suggested that they have failed to make. Chances are, we will not know until June how the Supreme Court ultimately will rule on the matter. 

​Many commentators and scholars have called attention to the importance of filling the Supreme Court vacancy left by the death of Justice Antonin Scalia given the lack of precedent for Senate inaction on the Court within a certain time frame. On principle, President Obama is still the president and thus is entitled to nominate justices to the Supreme Court, as he did with his nomination of Judge Garland, and the nominee should be entitled to confirmation hearings.  
 
There are also pragmatic concerns. On Wednesday, the Supreme Court heard oral arguments for a case regarding religious accommodations to the contraceptive mandate under the Affordable Care Act (ACA). Justice Anthony Kennedy typically serves as the swing vote siding more often than not with the conservative wing of the Court. In oral arguments, Kennedy appeared sympathetic to the substantial burdens of those working to opt out of contraception coverage in health plans under the ACA, though he posed questions in both directions of the issue. If Kennedy votes with the liberal wing of the Court, Scalia’s death will not be consequential for the case, but if Kennedy aligns with conservatives, we will have a 4-4 split. In the event that the Supreme Court is indeed evenly split, as appears fairly likely the case, lower court rulings rejecting the Christian organizations’ challenges would stand.
 
Kennedy’s record on reproductive rights is mixed. He voted with the majority in Planned Parenthood v. Casey, which reaffirmed Roe v. Wade but nevertheless allowed states to impose a number of constraints on abortion access provided that such laws do not pose an “undue burden.”  However, he also authored the majority opinion in Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003. And in 2014, he authored a concurrence in Burwell v. Hobby Lobby, in which the Supreme Court held 5-4 that the Religious Freedom Restoration Act (RFRA) allows a for-profit company to deny employees contraceptive coverage given the religious objections of the company owners. So which Anthony Kennedy will we see in the resolution of this case? Time will tell… 

​I had placed my bets on Sri Srinivasan. I was not the only one. I swear. I don’t remember whether I put money on said bet, but I hope that I didn’t, or that the affected persons have since contracted amnesia of at least some selective form. Actually, sometimes I wouldn’t mind amnesia. When my grandmother developed dementia in her last years, the doctors tested her lucidity with a number of questions. (Relevant background information: She worked in politics, had been sharp and savvy, and had a major crush on Bill Clinton. But didn’t we all?).
 
“What is your name?”
“Betty Elliott.”
“What year is it?”
“2003.”
“Who’s the President of the United States.”
As a coquettish grin swept across her cheeks, she scrunched up her shoulders bashfully and said wistfully, “Bill Clinton.”
 
Yeah, we wanted dementia that day. We all did.
 
But back to Garland. Senator Mitch McConnell has made it abundantly clear since Justice Scalia’s death that he intends for the next president to choose Scalia’s successor, despite the fact that Obama’s term in office does not end in January and a number of pending cases will be impacted markedly by the absence of a pivotal justice, leaving many decisions likely to fall 4-4. To have such a long vacancy would be unprecedented. While it is true that the last person to be nominated and confirmed during a presidential election year was Benjamin Cardozo in 1932,  so 84 years ago, the longest wait for a nominee, from the time of nomination to the time that there was a Senate vote was 125 for Louis Brandeis in 1916. Thus, to fail to confirm Scalia’s replacement would set a major precedent. And while there was little doubt that President Obama would nominate someone to the bench, it came to some (myself included) as a surprise who that nominee ultimately was.
 
Srinivasan was in many ways the perfect candidate. Young, check, Minority, check. DC Circuit Court of Appeals, check. Experienced in other capacities, check. Clerked for a Republican-appointed justice and thus able to potentially garner GOP support in the Senate, check. Unanimously confirmed, check.
 
Now, Srinivasan would not have been the dream justice for a liberal Democrat hoping for a game-changer, but that was never in the cards given the current partisan climate. We are in a “move the median” game, not a “change the game” setting, and either way, regardless of Obama’s nominee, the Democrats can only win with an Obama appointee given that they are replacing a staunch conservative justice. So in a sense, feather ruffling isn’t so much called for except with respect to the issue of obstruction for the sake of obstruction.
 
Which brings us to Merrick Garland, Chief Judge of the DC Circuit Court of Appeals (and who for the record I told my mother and friends would be a good choice but for his age), Obama’s nominee to fill Scalia’s vacancy. In the coming days and weeks, we will learn a great deal about his biography and positions, and with 19 years on the Court of Appeals there is a lengthy record to scour, no doubt bringing to light important positions on issues of privacy, speech, the constitutionality of the Affordable Care Act, and jurisprudential doctrine (the kinds of things that tickle my fancy but rarely make for good cocktail conversation unless I change my invite list).
 
Partisanship aside, there is no question of this man’s credentials to be appointed to America’s highest court. He was summa cum laude from Harvard College, magna cum laude from Harvard Law School, a member of the coveted Harvard Law Review, clerked for judge Henry Friendly on the 2nd Circuit Court of Appeals and for Justice William Brennan, served as a successful attorney, received bipartisan support in his confirmation to the DC Circuit Court of Appeals in 1997 (the circuit from which Supreme Court nominees draw heavily), and became chief judge in 2013. He is a centrist judge, and thus is not ideologically likely to alienate either party, with some liberal leanings but more pro-prosecution in criminal cases. We know that he has taken some broad views of First Amendment Rights, has defended some environmental regulation cases, but also held (and had reversed by the Supreme Court) the view that the DC Circuit lacked standing to consider Guantanamo cases. With continued challenges to EPA regulations, to the constitutionality of the Affordable Care Act, to antitrust, and other issues, who fills this vacancy is of monumental import.
 
An additional challenge in gauging the preferences of appellate judges is the fact that appellate judges rule in three-judge panels with high norms of unanimity, low rates of dissent, and even fairly low rates of concurrences. Characterized as “panel effects,” judges votes can be shaped importantly by the (purportedly) randomly assigned panel of judges with whom they sit in a given case, making individual preferences difficult to gauge (that is, a man sitting disproportionately frequently with other female judges may have a more pro-plaintiff view on sex discrimination cases, independent of his expressed preference on an all-male panel), and Senate hearings all the more important avenues for probing his positions on core matters of policy likely to come before the Court in the coming years. And while the Supreme Court does not reach the level of the economy or security in voters' Gallup polls of "most important issue," (in February 2016 the top economic issues were the economy in general, jobs/unemployment, and the deficit, and the top non-economic issues were dissatisfaction with government, immigration, and national security), and it is also true that most legal matters are resolved at the lower levels of the judiciary (the district and appellate courts) given the Supreme Court's limited and highly discretionary docket, it is undeniable that a change in the partisan balance of the Court has the immense potential to impact issues ranging from civil liberties to abortion to campaign finance to health care to business regulation, many of these issues touching at the core of our values as citizens if not in our everyday lives.
 
Garland will not prove an easy case for McConnell and others to make against holding a hearing, given his noted credentials and the problems posed by the ongoing vacancy on the Court. It is a true gamble whether to hold true to that determination and resolve going into the November elections given that the Senate Republicans are likely to suffer at least a few losses even if they do not lose control of the chamber (though that itself is unclear), and given the uncertainty as to the presidential election. In this case, Obama opted for a risk averse strategy of a known quantity with a solid record with bipartisan support. McConnell may do well to adopt the risk averse strategy of granting a hearing rather than accepting the uncertainty of a nomination with potentially very different political players.