Confirmation process of a US Supreme Court nominee.

Today marks the start of the most convoluted Supreme Court confirmation battles in history. Judge Neil Gorsuch, President Trump’s pick to replace Justice Scalia, will appear before the US Senate Judiciary Committee, and endure questioning as to his eligibility to become the country’s 113th Supreme Court justice.

I recently wrote about the issues behind the nomination process, namely that the Democrats might seek to block the nomination following the Republicans’ successful campaign to block President Obama’s nominee last year.

As the hearing gets underway, I thought it might be useful to examine the process itself, and consider how today’s process will compare to other Supreme Court confirmations in recent years.

Confirmation Process

The appointment and confirmation of Justices to the US Supreme Court involves following several steps laid down within the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States, and must face a series of hearings during which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee. The Committee can vote to send the nomination to the full United States Senate. Confirmation by the Senate enables the President to formally appoint the candidate to the court.

In modern times, the confirmation process has garnered some attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee’s track record aligns with the group’s views.

The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on the Constitution. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.

At the Senate, a simple majority vote is required to confirm or to reject a nominee. However, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favour of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon –  the Senate has explicitly rejected just twelve Supreme Court nominees in its history. While Senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered.

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House. The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office. The date of commission determines a Justice’s seniority. A ceremony is then held, in which the Justice must take the Constitutional Oath, used for every federal and state officeholder below the President, and the Judicial Oath, used for federal judges before entering into the execution of their office.

Past Confirmation hearings: the Bush Administration

President George W. Bush’s first opportunity to make a Supreme Court nomination came in July 2005, when Justice Sandra Day O’Connor announced her intention to retire. This was the first vacancy on the Court in over a decade. Bush nominated D.C. Circuit Judge John Roberts on 19th July, 2005. While his nomination was pending, Chief Justice William Rehnquist, who had been battling thyroid cancer, passed away on the 3rd September.

With Justice Rehnquist’s passing, Bush then had to rethink his strategy for filling two vacancies on the Supreme Court. He decided to withdraw Roberts’ nomination to be an Associate Justice, instead announcing him as his nominee for Chief Justice on the 5th September. The Senate Judiciary Committee met across the 12th – 15th September for Judge Roberts’ confirmation hearing, and one week later, the Committee voted 13-5, with three Democrats joining the Republicans, to send him to the full Senate. The Senate voted to confirm Roberts on the 29th September 2005, just in time for him to join the Court before the start of its 2005-2006 term the following week.

After deciding to nominate Judge Roberts to be Chief Justice, Bush initially selected White House Counsel Harriet Miers – a lawyer who served as Bush’s personal lawyer before he became President – as the nominee for Associate Justice on the 3rd October. As a result of a campaign by conservatives who wanted a nominee with a demonstrated conservative record and judicial experience, Miers withdrew her nomination weeks later.

Bush then announced his pick of Third Circuit Judge Samuel Alito on the 31st October. Judge Alito’s hearing was not held until 9th – 13th January. Less than two weeks later, on the 24th January, the Senate Judiciary Committee voted 10-8 to send him to the full Senate. Some 24 Senators, -including one Sen Obama – attempted to lead a filibuster to block Judge Alito’s confirmation, but they were unsuccessful.

The Senate ultimately confirmed Alito by a vote of 58-42 on the 31st January 2006, with four Democrats joining the Republicans.

(And as fate would have it, Obama as President later expressed regrets about this filibuster attempt when Senate Republicans announced they would not confirm a nominee to the vacancy left by Justice Scalia’s passing during Obama’s final year in office.)

The Obama Administration

President Barack Obama’s first opportunity to pick a Supreme Court justice came when Justice David Souter announced his retirement in 2009. Obama selected Second Circuit Judge Sonia Sotomayor, making the announcement on the 26th May.

Judge Sotomayor’s hearing was held across the 13th – 16th July. Highlights from the hearing include Republican senators grilling Judge Sotomayor about her ‘controversial‘ views, including her claim that appellate courts “make policy”, and that she believed “a wise Latina woman” would “reach a better conclusion than a white male” judge. Two weeks later, the Senate Judiciary committee voted 13-6 to send her to the full Senate. Republican Sen. Lindsey Graham joined Democrats on the committee in that vote. Nine days later, on the 6th August 2009, the Senate voted to confirm Sotomayor by a vote of 68-31, with nine Republicans voting for her confirmation.

The following year, Obama had another chance to nominate a Supreme Court Justice. He chose his Solicitor General, Elena Kagan, to replace Justice John Paul Stevens, announcing the nomination on the 10th May 2010.

Obama administration senior adviser David Axelrod later recounted the story of Justice Scalia approaching him at an event shortly after Justice Souter announced he would retire in 2009. Scalia apparently said to Axelrod: “I have no illusions that your man will nominate someone who shares my orientation … But I hope he sends us someone smart.” He continued, “Let me put a finer point on it … I hope he sends us Elena Kagan.”

Kagan’s hearing took place across 28th June to the 1st July. Three weeks later, the Senate Judiciary Committee voted 13-6 to send her to the full Senate. Once again, Republican Senator Lindsey Graham joining the Democrats in the vote. Two weeks later, the Senate voted 63-37 to confirm her. Five Republicans and two Independents joined the Democrats.

As the Obama administration came to a close, it seemed unlikely that another vacancy would occur on the Supreme Court. Then on the 13th February 2016, the news broke that Justice Scalia had died.

The upcoming Presidential election thus suddenly took on a new level of significance as Senate Republicans vowed to keep the seat open so that the next President could fill it. Nevertheless, Obama nominated Merrick Garland, Chief Judge of the D.C. Circuit, but Senate Republicans refused to allow the nomination to move forward.

And so here we are today, awaiting the first day of Committee hearings for Judge Gorsuch. Whether the cross-party support in voting to send a candidate to the full Senate as witnessed during both the Bush and Obama administrations will be witnessed is the key question.

Mr Osborne goes to London… Evening Standard.

George Osborne’s career looked finished after the overall vote for Brexit, and after he was unceremoniously ousted from Cabinet by the newly-crowned Prime Minister, Theresa May. The final nail in the coffin, it was thought, was when it emerged that his parliamentary seat of Tatton would be abolished in the boundary review. It seemed as though the former Chancellor of the Exchequer, having lost the Brexit gamble, had lost his political gravitas.

But then again, maybe not. For Mr Osborne has now found himself a safe seat – the Editor’s chair at the London Evening Standard.

Mr Osborne is expected to take up the new role in May, while keeping his seat in Parliament. He will have to balance his time carefully in order to fit in his other jobs: advising the investment manager Blackrock, chairing the Northern Powerhouse project, working as a Kissinger fellow at the McCain Institute and his speaking on the after-dinner circuit. His bulging portfolio has led to calls for him to stand down as MP for Tatton.

Yet Mr Osborne believes he can manage both jobs as ‘this paper is edited primarily in the morning’, while ‘Parliament votes in the afternoon’. This is rather ambitious: surely an editor needs to be an active presence in the evening, to confirm the final version before print? Extraordinary time management indeed.

Then again, one can afford such management. It has been suggested that since his fall from Cabinet grace, Mr Osborne has garnered more than £700,000 from public speaking; secured a £650,000 stipend for four days’ work a month from BlackRock; been granted a £120,000 fellowship at the McCain Institute; and can now expect to take home more than £220,000 for a four-day week at the Standard. That’s on top of his £75,000 salary as an MP.

Needless to say, the announcement of the selection of Mr Osborne caused such a furore, because MPs who undertake second jobs will now fear Mr Osborne’s dealings will lead to a crackdown on outside earnings that, in turn, will cost them money. Already it has been suggested that this will trigger an official review by the UK’s chief standards watchdog, the Committee on Standards in Public Life.

And so cue the argument for Mr Osborne to step down from his position as a MP immediately. This is not just on the basis of money, but also on the basis of the conflict of interest argument.

Claims of a conflict of interest between his membership of the third and fourth estates -and between his City and newspaper roles – are loud. It has to be said: how can Mr Osborne edit a newspaper, de facto positioning it along a political axis, whilst undertaking advisory work at BlackRock? How will he juggle engaging in private MP meetings, and overseeing political columns?

The former Chancellor’s break into journalism will give him considerably more influence than he would have as just a humble backbencher. Might it just offer him a means to exacting revenge on his political rivals?

It was noticeable that Number Ten was not in the loop over the former Chancellor’s work. The Prime Minister’s official spokesman was rendered speechless when the news was broken to him in his regular morning briefing.

Mr Osborne himself has made clear he would not be above giving his own government a hard time:

“We will judge what the government, London’s politicians and the political parties do against this simple test: is it good for our readers and good for London? If it is, we’ll support them. If it isn’t, we’ll be quick to say so.”

It might be argued that by taking on the position of editor of a newspaper with an estimated circulation of one million in the City of London, Mr Osborne might just be able to wield some political influence, namely through the political position adopted by the paper.

The main issue is that of Brexit: the former Chancellor was firmly on board with former Prime Minister David Cameron in campaigning for Remain. The current government is tasked with acquiring and implementing Brexit, but seems keen to go a step further than merely withdrawing from the EU – exit from the Single Market has been voiced. Mrs May has been adamant in her stance that there will not be an ongoing briefing to Parliament during negotiations – probably to prevent any criticism at home from weakening her position. Nevertheless, the media will still cover the negotiations to the best of their ability – the coverage – and angle – offered by the Standard during this time will be interesting.

Moreover, whilst Mr Osborne will no doubt be careful not to attack Mrs May personally, he could just use the paper to campaign for policies that will put him on a collision course with her instincts for more state invention on economics and immigration, on the basis that these are issues particularly important for London.

But any potential power of this position should not be overestimated. It should be remembered that the Standard’s current track record of persuasion is not exactly impressive. The Standard did come out in favour of Remain (check out that not-exactly-complementary reference to George Osborne) during the EU referendum last year, and London as a whole did vote Remain. However, on the basis of party politics: the Standard supported the Conservative Party in the general election of 2015, but it was the Labour Party who dominated. Moreover, the Standard supported Conservative candidate Zac Goldsmith in the 2016 London Mayoral election (who had announced his support for the UK to leave the EU) – Labour candidate Sadiq Khan was the victor.

Spare a thought during all of this for the constituents of Tatton. How must they feel, knowing their MP has multiple jobs and has declared himself a ‘Londoner’? As the MP for Tatton, Mr Osborne has duties in the North of England which do not align with his new-found duties as a newspaper editor in the South.

No doubt there will be more coverage of this story, and further developments. It is something to note though that on the same week the Prime Minister publicly reversed her Chancellor’s announcement on his policy of NI and the self employed – to his embarrassment, surely – the former Chancellor has proven he is quite content with life outside of the Cabinet circle – and that he hasn’t gone away.

Judge Neil Gorsuch, and nomination confirmation.

One of the most convoluted Supreme Court confirmation battles in history will finally reach the U.S. Senate on Monday 20th March, 401 days after the death of Justice Antonin Scalia left a vacancy that has spanned two presidencies and spawned two nominees.

Federal Appeals Court Judge Neil Gorsuch, President Trump’s choice to be the country’s 113th Supreme Court justice, is set to face several days of harsh questioning from Democrats, still enraged at the Republican-controlled Senate’s refusal to consider President Barack Obama’s nominee last year. Then, Senate Republican leader Mitch McConnell vowed the seat would remain vacant through the Presidential election, a promise he kept despite Obama’s compromise nomination of Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and a relatively moderate jurist.

Judge Gorsuch’s nomination was destined for a fight not only because of the Republican block on Judge Garland, but also because of the very President who nominated him – one who promised to employ litmus tests on abortion and guns, who largely outsourced the initial nomination process to the conservative Federalist Society and Heritage Foundation, and who has attacked federal judges who ruled against him, both as a businessman and as President.

And so Judge Gorsuch will face the multi-day Senate Judiciary Committee nomination hearing on Monday, in what Republicans probably hope will be a quick process to confirmation by the time Congress leaves for its Easter recess.

Judge Gorsuch’s supporters are anticipating several lines of attack from Senate Democrats, mainly concerns about decisions he made on women’s issues like the Hobby Lobby case, and his apparent bias towards business over regular people in labour-related cases.

Judge Gorsuch has been preparing for the hearings with help from lawyers in the Justice Department and the White House counsel’s office. That includes undergoing mock hearings, as well as extensively revisiting his own opinions and different areas of the law that could surface during the hearing.

Something to look out for starting from Monday: the Democratic senators who hail from states where Trump was elected. These are the most likely swing votes on Judge Gorsuch’s nomination. None of them are out of bounds for Republican outside groups trying to put the heat on Democrats.

Interestingly enough, the Judicial Crisis Network – an American conservative political campaign organisation – has so far apparently spent close to $5m of a planned $10m advertisement buy in support Judge Gorsuch. There is an expectation that around $15 to $20m will be spent by outside GOP groups on similar advertisement buys.

The key question is how far will the rest of Senate Democrats go with their opposition. Left-leaning advocates are vowing a big fight, and they have energised Democratic constituents on their side to pressure lawmakers to stay tough.

What is clear is that the nomination process will prove to be interesting: it is obvious that there will be Democrats who will seek to thwart President Trump, and it is equally as obvious that Republicans are willing to invoke the ‘nuclear option’ -changing Senate rules in relation to the 60 vote threshold for confirmation.

LSE-DB merger meets Brexit politics.

You might remember how I once wrote a blog post or two about the proposed London Stock Exchange-Deutsche Börse mega-merger.

This merger was supposed to create a bridge between Frankfurt, the Eurozone’s financial capital, and post-Brexit London, Europe’s and -sometime – world’s financial centre. However, the mega-merger designed to create a European champion for investors and listed companies — the very embodiment of the Commission’s capital markets union — is in deep trouble. And Brexit is its name.

Uncertainty about the UK’s future in Europe is what might just end the Deutsche Börse-LSE merger.

A few weeks ago, the London Stock Exchange announced its long-planned tie-up with Frankfurt-based Deutsche Börse was in troubled waters. The given reason for the situation was the claim that the LSE held ownership of an obscure Italian bond trading platform. Whilst the €29 billion deal was always far from a sure thing, and technicalities, for all their trouble are still important waters to navigate, the reality is that Brexit has caused jitters.

The merger between the two leading European exchange groups was left hanging by a thread after the LSE announced it was not able to meet a key condition for approval by European Commission competition authorities.

“Based on the Commission’s current position, [London Stock Exchange Group] believes that the Commission is unlikely to provide clearance for the merger,” LSE said.

LSE said the issue is that in mid-February, the Commission ‘unexpectedly’ asked the company to sell its majority stake in MTS, an Italian platform for trading bonds. The Commission’s competition directorate wanted LSE to commit to the sale by Monday, 27th February. The day before this deadline, the LSE said it could not do that.

The exchange’s statement does not explain why, but it implies that the Italian authorities didn’t want it to sell:

“Following dialogue with Italian authorities about the Commission’s required remedy and given prior discussions between the principals and Italian authorities regarding LSEG’s Italian businesses in the context of the merger, the LSEG Board believes that it is highly unlikely that a sale of MTS could be satisfactorily achieved, even if LSEG were to give the commitment.”

The LSE statement also implied that the deal’s chances are now slim. In the last paragraph, it says the company’s board “is highly confident in the strength of the [LSE’s] business, strategy and prospects on a standalone basis, under its strong management team led by Chief Executive Xavier Rolet,” who was going to leave after the merger but would presumably stay if there is no deal.

The Commission has until the 3rd April to make a decision on the issue – a date notably set after the proposed deadline for the British Prime Minister to invoke Art 50, and commence the process of formally withdrawing the UK from the EU.

The fact of the matter is, this was always going to be a very political deal, and it became an even more political deal after Brexit.

After months of preparation, a merger of this scale is not going to wither away on a technicality. What could yet end it is uncertainty over the UK’s departure from the EU.

Given that Theresa May has yet to even invoke Art 50, it remains too early to predict what type of arrangement the UK will acquire from the EU for the City of London. The regulatory uncertainty that financial companies face in the interim makes a deal like the LSE-DB merger risky if not outright negligent. Add to that the suddenly toxic politics in London, and on the Continent, around anything that touches on future relations between the two.

Of course, something might happen which would keep the merger alive. Some type of three-way deal might be struck between the LSE, the Italian authorities, and the Commission to allow the LSE to sell its big stake in the Italian bond-trading platform MTS to a buyer approved by the Italians.

But would require the Commission to extend the deadline for a deal to be agreed. And that’s not looking too likely.

Now, should the merger ultimately fail, the LSE could become the subject of another bid. This would most likely be in the form of a US rival, perhaps ICE or Nasdaq. Alternatively, an Asian may step into the frame, such as the Hong Kong Stock Exchange. These non-European suitors could be emboldened by the lower pound and the likely fall in the value of the LSE’s shares if the DB deal fails.

Regardless of what unfolds, Brexit will be on everyone’s lips. 

Brexit is already having a corrosive effect on the UK’s business ties with the Continent. There may be few signs the UK economy had taken a hit in the immediate aftermath of the EU referendum, but the possible decline of the LSE deal is just the sort of longer-term damage many economists warned about before the vote.

One of the key issues on the list for EU and British Brexit negotiators — in addition to citizen rights, and the ongoing debate over a so-called ‘divorce bill’ — will be how to uphold all the deals and investments negotiated on the assumption that the UK belongs to the EU. As the apparent LSE-DB breakup seemingly demonstrates, many investors just cannot afford to wait for the politicians to sort it all out.