Mutual recognition hope for lawyers

I have written recently about the legal issues caused by the uncertainty triggered by Brexit. I feel that it is becoming increasingly evident that the ramifications of the vote to Leave the EU last summer were never fully considered by the British government, especially within the legal sector.

Such legal issues include the practise of law in a post-Brexit UK. I noted last year that many practising solicitors in the UK were opting to register with the Irish Law Society in order to ensure they could continue to practise EU law.

However, there perhaps could be a solution to hand for those lawyers worrying about their qualifications in the event of the UK eventually withdrawing from the EU: mutual recognition.

For only recently, a former senior trade minister said that the ‘genuinely mutual benefits’ of professional recognition would mean that UK lawyers could expect a continuation of their right to practise in EU jurisdictions post-Brexit.

Lord Maude of Horsham, who was Minister of State for Trade and Investment in former Prime Minister David Cameron’s government, told a press briefing it would be ‘very surprising if mutual recognition arrangements’ could not be sorted out relatively easily.

Lord Maude, now a senior adviser at US firm Covington, was also a government minister from 1987-1992, and had a direct role in the design of Directive 89/48/EEC on which subsequent professional recognition regulations were based.

Such continuation of the mutual recognition regulations was likely, Lord Maude said, because the ‘benefits on both sides’ were now well-established.

The former Swedish Prime Minister Carl Bildt, who is also a senior adviser at the same firm, identified ‘justice’ as an area where early agreement between the EU and UK can be reached.

I wrote recently on the very topic of ‘justice’ with regards to the Brexit and the upcoming negotiations. I noted that justice does not seem to feature highly on the UK government’s list of priorities entering the negotiations. The UK government, as we are all too aware of, prefers instead to prioritise economic matters rather than legal matters. This is despite the fact that the UK co-operates closely with other EU Member States in relation to matters of justice, and law and order. Whilst I feel that justice is not recognised as an area of priority entering the Brexit negotiations the UK government, Mr Bildt’s comments regarding justice being a potential area for early agreement seems promising. (I will keep my fingers crossed.)

However, Mr Bildt did warn that while the UK government expected Art 50 and interim arrangements could happen ‘in parallel’, the EU negotiating team did not match that expectation. ‘Their mandate is just a divorce mandate,’ he noted.

Yet perhaps lawyers’ concerns are not entirely without foundation, nor do they look set to be reassured soon. Jonathan Goldsmith, the former secretary-general of the Council of Bars and Law Societies of Europe (CCBE), commented:

‘The lawyers’ directives are not standalone but depend on what will happen on mutual recognition and the single market overall. If we are out of the single market without exceptions, and have to return to WTO rules, then there are big problems.’

As we know from Prime Minister Theresa May’s recent Brexit speech, the UK goverment is now committed to a so-called ‘hard Brexit’ which would see the UK withdraw entirely from the EU, including the Single Market. Thus, Mr Goldsmith’s comments are indeed worrying.

Mickael Laurans, who is the Head of the Law Society’s Brussels office, said the qualified lawyers transfer scheme would mean continued recognition for EU lawyers in England and Wales. However, he did also note that reciprocal agreement for solicitors and barristers post-Brexit ‘would depend on the goodwill’ of the EU’s 27 member states. Perhaps it is just me, but that does not ring with optimism.

We can hope that the current model might be used as a foundation to build something constructive in the future and regardless of the deal that eventually is negotiated between the UK and EU. But it appears that until we are informed of the final agreed deal, a lot of uncertainty and question marks will persistently remain, particularly in the legal sector.

Judge Neil Gorsuch and the US Supreme Court nomination.

After a dramatic day worthy of his former television programme The Apprentice, President Trump announced that he had selected Neil Gorsuch to replace Antonin Scalia on the US Supreme Court. The scene is now set up for a bitter confirmation battle with Senate Democrats, who are still stung over the GOP obstruction against President Obama’s pick, Merrick Garland.

Judge Gorsuch, a well-respected justice who sits on the Colorado-based Tenth Circuit US Court of Appeals, is known for his bedrock conservative values could just tip the balance on controversial and current issues including voting rights, abortion, and religious equality. At 49 years old, he could potentially serve  for well over a generation.

Unsurprisingly, GOP senators were delighted with the selection. Not so senate Democrats.

The senate Democrats have now pledged to undertake a fierce battle over the confirmation of Judge Gorsuch to the US Supreme Court. They have pointed out his legal views toward contraceptives, federal regulations etc to declare him as being simply too far out of the mainstream for a seat on the final court of appeal in the US.Democrats have vowed to carry out a detailed and extensive scrutiny of Judge Gorsuch’s record.

The Democrats’ vow to cause trouble also includes demanding a threshold of 60 votes for confirmations. Democrats have wasted no time in highlighting that this was a standard easily met by President Barack Obama’s two Supreme Court nominees.

Senate Minority Leader Chuck Schumer (D, NY) said:

“The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch and protect the constitutionally enshrined rights of all Americans…Given his record, I have very serious doubts about Judge Gorsuch’s ability to meet this standard.”

Democratic Sens. Elizabeth Warren and Ed Markey of Massachusetts, Sherrod Brown of Ohio, and Ron Wyden and Jeff Merkley of Oregon have all said they would oppose Judge Gorsuch and mount a fight against his confirmation.

But this might prove a tricky issue for those moderate Democratic senators from red states, who are aware that they are under political pressure to side with Republicans and support Judge Gorsuch. Unlike the fiery rhetoric of their Minority Leader, these Democratic senators adopt a more cautious tone reflective of their balancing act.

Sen. Joe Manchin said he would give fair consideration to Judge Gorsuch, urging senators to “put partisan politics aside and allow the vetting process to proceed.” Another such senator, Sen. Jon Tester (D, Mont.) promised he would be “thoroughly reviewing” Judge Gorsuch’s qualifications.

Judge Gorsuch boasts a glowing CV, which might prove to be another issue for the Senate Democrats – they cannot be seen to reject a qualified and experienced candidate for political reasons. For quite like Merrick Garland, Judge Goruch’s pedigree makes him an attractive candidate on paper. He is a graduate of Harvard and Oxford, he clerked for two Supreme Court justices. (Fun fact: He attended Harvard Law School with former President Barack Obama.) Republicans therefore are hoping that this will make it difficult for Democrats to demagogue the pick.

But whilst his pedigree is one thing, Judge Gorsuch’s record is what the Senate Democrats are really concerned about. One major problem for Democrats concerning Judge Gorsuch’s record will be his rulings on cases involving reproductive rights. As a judge on the Tenth Circuit, Judge Gorsuch sided with Hobby Lobby in its legal challenge against Obamacare’s contraceptive requirement, which the company protested on religious grounds. The Supreme Court ultimately upheld the Tenth Circuit’s ruling in a 5-4 decision.

Judge Gorsuch had also pushed for a rehearing in a court case last year involving Planned Parenthood in Utah, when a Tenth Circuit panel had stopped the state from denying public funds to the women’s health organisation.

Whilst campaigning last year, President Trump had stated his pro-life belief, and promised that if elected he would nominate someone to the US Supreme Court who would overturn the 40 years of  jurisprudence which commenced with Roe v Wade. It is apparent after considering Judge Gorsuch’s legal record that President Trump is adhering to his campaign promise.

Senate Judiciary Committee Chairman Chuck Grassley (R, Iowa) said he would follow the standard timeline for considering a Supreme Court justice, which includes about 35 to 40 days of pre-hearing vetting by the panel. This proposed timeline would see confirmation hearings held in mid-March. Senate leaders want Judge Gorsuch confirmed by early April.

Republicans are likely to continuously remind Democrats that Judge Gorsuch was confirmed with a voice vote to his current position on the 10th Circuit Court of Appeals in 2006. Chairman Grassley’s office noted that 11 current Democratic senators were around then to unanimously install Judge Gorsuch. This previous history of bipartisanship was also recalled by Senate Majority Leader Mitch McConnell (R, Ky), who made a point of using it to encourage Senate Democrats to step in line:

“When the Senate previously confirmed him to the appellate court, the bipartisan support in the Senate was so overwhelming, a roll call vote was not even required…I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination.”

Legal conservatives are hoping he will become the intellectual heir to Scalia, long the outspoken leader of the conservative bloc, whom Judge Gorsuch would replace if successful in his nomination.

Judge Gorsuch held Justice Scalia in high esteem. In a speech two months after the US Supreme Court Justice died, he said:

 “I immediately lost what breath I had left…And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”

Interestingly, he shares Justice Scalia’s legal philosophy, and talent for vivid writing. However, Judge Gorsuch’s writing differs from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were – famously -caustic and wounding.

For any fellow fans of legal theory and jurisprudence, Judge Gorsuch is an originalist. This means he tries to interpret the US Constitution in a manner which is consistent with the understanding of those who drafted and adopted it. This approach leads him to generally but not uniformly conservative results.

“Ours is the job of interpreting the Constitution,” he wrote in a concurrence last year. “And that document isn’t some inkblot on which litigants may project their hopes and dreams.”

Like Justice Scalia, Judge Gorsuch has been noted to reach results that favour liberals when he thinks the history or text of the US Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities.

It has been noted that Judge Gorsuch has not hesitated to take stands that critics say have a partisan edge. He has criticised liberals for turning to the courts rather than legislatures to achieve their policy goals, and has called for limiting the power of federal regulators.

Nan Aron, the president of the Alliance for Justice, a liberal group, said Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than Scalia.”

Moreover, it has been noted Judge Gorsuch is a favourite of legal conservatives because he has questioned a long-standing legal precedent that many conservatives believe has granted too much power to the regulatory state.

The landmark 1984 US Supreme Court ruling involving the Chevron oil company held that courts should defer to federal agencies’ reasonable interpretations of ambiguous federal laws. But in a ruling last August in an immigration case, Gorsuch questioned the wisdom of that doctrine, and argued the meaning of the law is for judges to decide, not federal bureaucrats.

If Judge Gorsuch is confirmed, he will be the 113th Justice, and the US Supreme Court will return to a familiar dynamic, with Justice Anthony M. Kennedy, a moderate conservative, holding the decisive vote in many closely divided cases.

It remains to be seen how Judge Gorsuch’s nomination goes, but no doubt it shall be a dramatic battle in the Senate.

But I leave you with a wonderful twist of irony which highlights the closeknit nature of the US judiciary.

In a 2002 article reflecting on Justice White’s death, Judge Gorsuch criticised the Senate’s handling of judicial confirmations. “Some of the most impressive judicial nominees are grossly mistreated,” he said, mentioning two candidates for the federal appeals court in Washington who he said were “widely considered to be among the finest lawyers of their generation.”

One was John G. Roberts Jr., who went on to become Chief Justice of the United States. The other was… one Judge Merrick B. Garland.