Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary

Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciaryOn Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime. As is typical of these events, a sitting justice introduced the lecturer. This time it was Justice Neil Gorsuch, the first time […]

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Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary

On Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime. As is typical of these events, a sitting justice introduced the lecturer. This time it was Justice Neil Gorsuch, the first time he has spoken at a historical society event. Generally, the justices speak briefly. They usually thank the society for hosting the lecture, praise the speaker for her work and perhaps crack a memorable joke. But Gorsuch used his time to deliver an impassioned defense of the judiciary and civility, while criticizing the American public’s ignorance of the structure of our government.

Gorsuch said he has been astonished to learn that “a lot of people in America just don’t understand the role of an independent judge. They don’t know the difference between judges and politicians. They assume judges make campaign promises, and should… And that judges are just politicians in robes.” He ascribed these feelings to a general lack of civic knowledge among the general public. He cited an Annenberg study showing that one third of Americans cannot name any branch of government. Gorsuch pointed to another study and said, “Almost nobody knows that James Madison wrote the Constitution, they all think it was Thomas Jefferson … and he was in France!” The justice noted that even law clerks who come to his office fail to recognize a portrait of Madison hanging above a fireplace.

Gorsuch spoke passionately about the benefits and importance of an independent judiciary. He said, “as difficult as our times sometimes seem, we are very blessed.” He asked rhetorically, “how many places in the world can you go where you can rest assured that you can have an independent judge decide your case?” Gorsuch singled out North Korea for having an expansive bill of rights that promises its citizens a right to free education, free medical and relaxation. He joked that he would enjoy a right to relaxation, but he argued that those North Korean rights are “not worth the parchment they’re written on because you don’t have judges to enforce them.”

Gorsuch then moved on to the second concern he has noticed during his time as a judge. He listed civility, human decency and kindness as “under assault in our society right now, and in our profession.” He criticized civil litigation specifically for its lack of civility and expressed concerns about civility becoming a bad word or passé. He wrapped up his point by stressing to the audience that people they may disagree with “love this country as much as you do.”

Gorsuch’s remarks were not all negative. He began with praise for the historical society and reflected positively on his first year and a half on the court. He admitted that he was surprised by how little the court has changed since he clerked for Justices Byron White and Anthony Kennedy 25 years ago. He joked that he was excited to have recently received his first email from one of his colleagues. It was not even work related: “[H]e was asking for directions to my house for dinner.” He was also excited to introduce Waxman, whom he described as “one of my very favorite people in the world.”

Waxman’s lecture focused on Justice Charles Evans Hughes. Hughes served two stints on the court: as an an associate justice from 1910 to 1916 and as chief justice from 1930 to 1941. Waxman focused, not on any rulings Hughes made on the court, but rather on a 1917 speech in which Hughes, speaking as a private lawyer five months after the United States entered World War I, introduced what Waxman defined as Hughes’ war powers axiom: “that the power to wage war is the power to wage war successfully.” In other words, Hughes argued that to achieve success in an overseas, industrial-scale war, constitutional restrictions on the federal government should be loosened during wartime. Hughes was a private citizen when he made this speech, but it had a significant impact nonetheless. He had just run for president as a Republican against President Woodrow Wilson, but he presented an analysis of why Wilson and the Democratic Congress were justified in pursuing expanded powers during wartime. The New York Times covered the speech on its front page, while many other newspapers printed the speech in full. Waxman said that Hughes’ influence was enhanced by the fact that, as Justice Robert Jackson once said, “Hughes looked like God and talked like God.”

According to Waxman, Hughes was specifically arguing that Congress should be allowed to take two controversial actions during wartime. First, it should be allowed to institute a selective service draft. At the time, Waxman pointed out, it was not settled law that the federal government could conscript citizens to join the army. Second, Congress should be allowed to regulate the national economy to fit the needs of the war effort. This was the height of the Lochner era, and any restrictions on economic freedoms were looked upon with skepticism by the courts. Hughes argued that the “necessary and proper” clause in Article I of the Constitution required that congressional powers must expand during wartime. Waxman noted that this theory of elasticity in constitutional powers during wartime eventually won out and has since been accepted by all three branches of government.

Hughes’ theory requires that there be clear lines between wartime and peacetime and that the expanded constitutional powers granted to the government are retracted once the war ends. As it turned out, Hughes began to speak out against the expanded rights of the federal government just a few years after he had advocated for those expanded powers. A November 1918 armistice effectively ended the fighting in Europe; to Hughes, this meant that the war was over and that normal constitutional restrictions on the federal government must return. But for Wilson, who in his request for a declaration of war defined his goals as “[preventing] the recurrence of war and to make the world safe for democracy,” the war was not over just because fighting had stopped. Waxman noted that Hughes was anxious over the continued use of wartime powers, saying that the country risked “losing its soul” if wartime powers were exercised in peacetime. Hughes even litigated against the government for seizing undersea cables operated by private companies after the armistice, arguing that the war was over and so the government should not have been allowed to seize the cables. Not only did Hughes lose, but the judge in the case even used Hughes’ own axiom, that “the power to wage war was the power to wage war successfully,” against him.

Later in his career Hughes’ thoughts evolved yet again. He “curiously seems to have backed off these worries” about wartime powers extending into peacetime, Waxman said. As Chief Justice, Hughes even quoted his war powers axiom in a seemingly unrelated case about state mortgage regulation during the Great Depression. Waxman theorized that Hughes may have  reverted to his original position in part out of political expediency. Hughes served as secretary of state for President Warren Harding, who pledged a “return to normalcy,” and Hughes even negotiated the peace treaty that formally ended the war. To Waxman, it remains somewhat of a mystery how Hughes reconciled his theory of expansive wartime powers with his concerns about those powers extending into peacetime.

Waxman concluded by saying that World War I was the moment when “the differential between the federal government’s war powers and its peacetime powers reached its apex.” Although war powers provided the initial basis for Congress’ expanded power to regulate the economy, such regulation is justified now under a broader reading of the commerce clause. While war has grown more and more complex, “legislative war powers have not had to keep up, in part because other constitutional powers no do so much work,” Waxman said. Ultimately Waxman argued that there is no longer a large set of legislative powers for war to open up today, though a few do remain.

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Afternoon round-up: Additional day of confirmation hearings

Afternoon round-up: Additional day of confirmation hearingsThe Senate Judiciary Committee has concluded its hearing, which included testimony from Judge Brett Kavanaugh and Dr. Christine Blasey Ford, who has accused Kavanaugh of sexual assault. Early coverage comes from Seung Min Kim, Ann E. Marimow, Mike DeBonis and Elise Viebeck of The Washington Post, another piece in the Post comes from Lori Rozsa, […]

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Afternoon round-up: Additional day of confirmation hearings

The Senate Judiciary Committee has concluded its hearing, which included testimony from Judge Brett Kavanaugh and Dr. Christine Blasey Ford, who has accused Kavanaugh of sexual assault. Early coverage comes from Seung Min Kim, Ann E. Marimow, Mike DeBonis and Elise Viebeck of The Washington Post, another piece in the Post comes from Lori Rozsa, Steven Burkholder and David A. Farenthold, who report on the high level of attention being paid to the hearing nationwide. A live feed of coverage comes from various reporters for NBC News, while a similar feed appears in The New York Times, and further coverage from the Times comes from Simon Romero, who writes about Rachel Mitchell, the prosecutor hired by Republicans to question Dr. Ford and Kavanaugh, and Peter Baker, who writes about reactions to the hearing. More coverage comes from Joan Biskupic of CNN; Greg Stohr, Laura Litvan, Arit John and Steven T. Dennis for Bloomberg; Lawrence Hurley, Andrew Chung and Amanda Becker of Reuters; Laurel Wamsley for NPR; Robert Mackay of The Intercept; Sabrina Siddiqui, Lauren Gambino and Oliver Laughland of The Guardian; Melissa Quinn for the Washington Examiner; and Sarah D. Wire, Jennifer Haberkorn, David Lauter and David G. Savage for The Los Angeles Times. Three stories come from Politico: one from Elana Schor and Burgess Everett on Dr. Ford’s testimony; another from Nolan D. McCaskill and Rebecca Morin, who chronicle the key moments from the hearing, and from Annie Karni, who looks at the White House’s reaction.

Early commentary comes from Mark Joseph Stern of Slate and Aaron Blake for The Washington Post, while additional commentary in the Post comes from Molly RobertsRuth Marcus and Kathryn Helga Lipari. Kira Lerner comments for ThinkProgress, while another piece in ThinkProgress comes from Kay WickerThe New York Times has an op-ed from Frank Bruni and commentary from the Times’ Editorial Board. More commentary comes from Matt Ford for The New Republic; Matthew Walther of The Week; Robby Soave for Reason; Daniel Henniger of The Wall Street Journal; Megan Garber for The Atlantic, while additional pieces in The Atlantic come from Peter Beinart, David A. Graham, and Russell Berman.

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Event announcement: SLLC Supreme term preview webinar

On September 25 at 12:30 p.m. EST, the State and Local Legal Center will host a webinar previewing the upcoming Supreme Court term. Speakers include Tom Fisher, Matt Zinn and Brianne Gorod. Registration instructions are available here.
The post Event a…

Event announcement: SLLC Supreme term preview webinar

On September 25 at 12:30 p.m. EST, the State and Local Legal Center will host a webinar previewing the upcoming Supreme Court term. Speakers include Tom Fisher, Matt Zinn and Brianne Gorod. Registration instructions are available here.

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Evening round-up: Final day of Judge Kavanaugh’s confirmation hearing

Evening round-up: Final day of Judge Kavanaugh’s confirmation hearingThe Senate Judiciary Committee has concluded its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of witness testimony; there were four panels and 28 total witnesses. Coverage of the day’s events comes from Jessica Gresko of the Associated Press, who reports that “with [Kavanaugh’s] questioning over, he seemed on […]

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Evening round-up: Final day of Judge Kavanaugh’s confirmation hearing

The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of witness testimony; there were four panels and 28 total witnesses. Coverage of the day’s events comes from Jessica Gresko of the Associated Press, who reports that “with [Kavanaugh’s] questioning over, he seemed on his way to becoming the court’s 114th justice.” For The Washington Post, Seung Min Kim focuses on the testimony of John Dean, former White House counsel for the Nixon Administration, “who played a crucial role in the Watergate scandal” and testified against Kavanugh’s confirmation. Further coverage comes from Amanda Becker of Reuters, Byron Tau of The Wall Street Journal; Erik Wasson of Bloomberg; and Emma O’Connor of Buzzfeed.

Commentary on the hearing comes from Damon Root for Reason; Ian Millhiser of ThinkProgress; John Nichols for The Nation; Hans A. von Spakovsky for Fox News; David B. Rivkin Jr. in The Hill; Monica Hesse for The Washington Post; Jeremy Stahl of Slate, with another piece from Slate from Dahlia Lithwick, who focuses on the protesters who interrupted the hearings. Editorials come from The Wall Street Journal, which decried Senator Cory Booker’s release of documents on Thursday, and The Washington Post, which lamented “a depressing display of the breakdown of Senate norms.” Two podcasts discuss the hearing — Elizabeth Slattery looks at the highlights with Tom Jipping and Hans A. von Spakovsky on SCOTUS 101, while Garrett Epps was interviewed by Diane Rehm on On My Mind.

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Evening round-up: Day 3 of Judge Kavanaugh’s confirmation hearing

Evening round-up: Day 3 of Judge Kavanaugh’s confirmation hearingThe Senate Judiciary Committee has concluded the third day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of the second and final round of questions to Kavanaugh from senators. Coverage comes from Scott Horsley of NPR; Jordan Carney of The Hill; Zoe Tillman of Buzzfeed; Charlie Savage, […]

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Evening round-up: Day 3 of Judge Kavanaugh’s confirmation hearing

The Senate Judiciary Committee has concluded the third day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of the second and final round of questions to Kavanaugh from senators. Coverage comes from Scott Horsley of NPR; Jordan Carney of The Hill; Zoe Tillman of Buzzfeed; Charlie Savage, and Catie Edmundson and Adam Liptak of The New York Times. Also for the Times, Savage has a story on leaked documents from Kavanaugh’s time in the Bush White House. Additional coverage comes from Lisa Mascaro and Mark Sherman of the Associated Press; Jess Bravin and Byron Tau of The Wall Street Journal; and Seung Min Kim, Ann E. Marimow and Mark Berman of The Washington Post. More coverage from the Post comes from Robert Barnes and Michael Kranish. Still more coverage comes from Lawrence Hurley and Amanda Becker of Reuters; Greg Stohr and Laura Litvan of Bloomberg; and Ellen M. Gilmer and Nick Sobczyk of E&E News, with another story in E&E News from Gilmer.

Early commentary comes from Ian Samuel for The Guardian; Adriana Cohen of the Boston Herald; Paul Krugman for The New York Times; Dahlia Lithwick of Slate; Amber Phillips of The Washington Post, with more commentary in the Post from Michael W. McConnell; and Ryan Koronowski of ThinkProgress, with more coverage for ThinkProgress from Ian Millhiser, Casey Quinlan and Millhiser again.

Coverage of previous days of the hearing comes from Elana Schor of Politico; Jordain Carney of The Hill; The Wall Street Journal editorial board; Zeke Miller and Ken Thomas of Talking Points Memo; and Khorri Atkinson of Axios. Another piece on the state of play in the democratic caucus comes from Schor and Burgess Everett at Politico.

Commentary on previous days of the hearing comes from The Economist; Ian Millhiser of ThinkProgressAmanda Michelle Gomez, also at ThinkProgress; Scott D. Cosenza of Liberty Nation; Joan McCarter for Alternet; and Dahlia Lithwick for Slate. Another Slate piece comes from Christina Cauterucci. Kent Scheidegger has two pieces on Senator Sheldon Whitehouse’s questions from yesterday for Crime and Consequences, one on public interest litigation and another on amicus funding.

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Evening round-up: Day 2 of Judge Kavanaugh’s confirmation hearing

Evening round-up: Day 2 of Judge Kavanaugh’s confirmation hearingThe Senate Judiciary Committee has concluded the second day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of the first round of questions to Kavanaugh from senators, who had 30 minutes each to question the nominee. Coverage comes from Tony Mauro of The National Law Journal; Greg […]

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Evening round-up: Day 2 of Judge Kavanaugh’s confirmation hearing

The Senate Judiciary Committee has concluded the second day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of the first round of questions to Kavanaugh from senators, who had 30 minutes each to question the nominee. Coverage comes from Tony Mauro of The National Law Journal; Greg Stohr and Laura Litvin of Bloomberg; Lawrence Hurley and Ginger Gibson of Reuters; Manu Raju of CNN; Scott Horsely of NPR; Michael D. Shear, Adam Liptak and Sheryl Gay Stolberg of The New York Times, with another piece in the Times from Liptak. Additional coverage comes from Mark Walsh of Education Week; Elana Schor of Politico; Andrew Cohen of The Washington Spectator; and Jess Bravin and Byron Tau of The Wall Street Journal. Still more coverage comes from Mark Sherman and Lisa Mascaro of the Associated Press; Emma O’Connor of Buzzfeed; Ellen M. Gilmer for E&E News; Seung Min Kim, Ann E. Marimow, Robert Barnes and Elise Viebeck for The Washington Post, with analysis in the Post from Amber Phillips.

Commentary comes from Sarah Posner for The Investigative Fund; Garrett Epps for The Atlantic; Kent Scheidegger of Crime and Consequences; Ronald A. Cass of The Regulatory Review; and Greg Sargent of The Washington Post.  Additional commentary for the Post comes from James Hohmann. Karl Rove has an op-ed in The Wall Street Journal, as does Senator Ben Sasse. Additional commentary comes from Mark Joseph Stern for Slate; David French for the National Review; Ian Millhiser of ThinkProgress; Matt Ford for The New Republic; and Damon Linker in The Week.

Additional coverage of the first day of the hearing comes from Nina Totenberg of NPR and Tony Mauro of The National Law Journal. Amy Howe has a podcast on Howe on the Court with a short recap of yesterday’s hearing.

Commentary on yesterday’s hearing comes from The Wall Street Journal Editorial Board; Rich Lowry in Politico; Michael Goodwin for the New York Post; Kathleen Parker for The Washington Post; Jim Daly for Fox News, and Lauren DeBellis Appell, also for Fox News.

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Afternoon round-up: First day of Judge Kavanaugh’s confirmation hearing

Afternoon round-up: First day of Judge Kavanaugh’s confirmation hearingToday the Senate Judiciary Committee held the first day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today’s proceedings included opening statements from senators and from Kavanaugh, who was introduced by former Secretary of State Condoleezza Rice, Sen. Rob Portman, R-Ohio, and attorney Lisa Blatt. Early coverage comes from […]

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Afternoon round-up: First day of Judge Kavanaugh’s confirmation hearing

Today the Senate Judiciary Committee held the first day of its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today’s proceedings included opening statements from senators and from Kavanaugh, who was introduced by former Secretary of State Condoleezza Rice, Sen. Rob Portman, R-Ohio, and attorney Lisa Blatt. Early coverage comes from Seung Min Kim, Ann Marimow and John Wagner of The Washington Post, Jordain Carney of The Hill, Sheryl Gay Stolberg, Adam Liptak and Charlie Savage of The New York Times, Scott Horsley of NPR, Jackie Kucinich and Andrew Desiderio of The Daily Beast, Lawrence Hurley of Reuters, and Greg Stohr and Laura Litvan of Bloomberg.

Early commentary comes from Alexander Nazaryan for Yahoo News, Melanie Schmitz for ThinkProgress, Philip Wegmann for the Washington Examiner, Mark Joseph Stern for Slate, Carrie Severino for RealClear Politics, and John Nichols for The Nation.

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Event announcement: ABA panel on criminal cases

On Friday, August 3, from 3 p.m. to 4:30 p.m. CT in Chicago, the American Bar Association Criminal Justice Section will host a review of criminal law cases from the most recent Supreme Court term. Panelists include Ann C. Williams, MiAngel C. Cody and …

Event announcement: ABA panel on criminal cases

On Friday, August 3, from 3 p.m. to 4:30 p.m. CT in Chicago, the American Bar Association Criminal Justice Section will host a review of criminal law cases from the most recent Supreme Court term. Panelists include Ann C. Williams, MiAngel C. Cody and Debra Bonamici; Rory Little will moderate. More information is available here.

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Kavanaugh’s confirmation process: Democrats in the Senate

Kavanaugh’s confirmation process: Democrats in the SenateAt 9:00 p.m. on July 9, President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court left by the retirement of Justice Anthony Kennedy late last month. The nomination now goes to the Senate for confirmation, where majority […]

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Kavanaugh’s confirmation process: Democrats in the Senate

At 9:00 p.m. on July 9, President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court left by the retirement of Justice Anthony Kennedy late last month. The nomination now goes to the Senate for confirmation, where majority leader Mitch McConnell has said he would like a vote to confirm Kavanaugh by the fall. This post will examine the key players in the Democratic minority.

The 49-seat Democratic caucus will be unable to block Kavanaugh’s nomination on its own. Now that the filibuster has been eliminated for Supreme Court nominations, only a simple majority of senators is needed to confirm a Supreme Court nominee. Republicans currently hold 51 seats in the Senate, though Sen. John McCain, R-Ariz., is away from Washington while he receives treatment for brain cancer. If McCain is unable to vote, every Republican will have to vote for Kavanaugh to ensure confirmation without Democratic help.

A contentious confirmation fight will be nothing new for Kavanaugh; his nomination to the D.C. Circuit stalled for three years amid heavy Democratic opposition before he was confirmed in 2006. When his vote eventually occurred, only four Democrats supported his nomination. Tom Carper of Delaware is the only one of those four still serving today, but he has indicated that he will vote against Kavanaugh’s confirmation this time.

Senate Minority Leader Chuck Schumer

This will be Schumer’s second Supreme Court confirmation fight since he assumed the Democratic leadership post from Harry Reid after the Nevada senator’s retirement in 2016. The main drama last time centered on whether Schumer would lead a Democratic filibuster of Neil Gorsuch’s nomination and whether McConnell, in turn, would use the “nuclear option” of eliminating the filibuster for Supreme Court nominations. Schumer and McConnell both followed through, and so the filibuster will not be in play this time.

Immediately after Kennedy’s retirement, Schumer tried to pressure McConnell to honor the so-called “McConnell Rule.” Schumer argued that because McConnell delayed the nomination of Merrick Garland in an election year in 2016, he should do the same this year and wait until after the midterm elections to confirm Kennedy’s replacement. This line of argument, however, has subsided in recent days as it became clear that the Republicans have no intention of following this rule.

In the face of the Republican majority’s plan to hold hearings and a vote on Kavanaugh, Schumer had two strategic options. First, he could lead his caucus in fighting Kavanaugh’s nomination vigorously to rile up the ascendant activist left and increase turnout for the midterm elections. On the other hand, he could take a more conciliatory approach intended to protect the 10 Democratic senators up for re-election in states that Trump won in 2016.

Schumer chose to fight the nomination aggressively. On the night of the nomination, his office released a statement saying that he would “oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same. The stakes are simply too high for anything less.” In addition, it has been reported that Schumer is cautioning fellow Democrats that they will face a uproar from their base if they do not fight the nomination. According to this report, Schumer has instructed his caucus to focus on criticizing Kavanaugh specifically rather than raising procedural objections. Schumer’s own statement, which asserts that Kavanaugh’s record indicates that he “would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act,” reflects this strategy.

Sen. Dianne Feinstein, ranking member of the Senate Judiciary Committee

Feinstein all but definitively came out against Kavanaugh in a series of statements after the nomination was announced, saying, “Brett Kavanaugh’s record indicates that he would be among the most conservative justices in Supreme Court history, his views are far outside the mainstream and there’s every reason to believe he would overturn Roe v. Wade.”

Feinstein has a reputation as a moderate but may have an incentive to adopt a more confrontational style during the confirmation fight. She is up for re-election in 2018, but because of California’s top-two primary system — in which the two highest vote-getters in a given primary, regardless of party, advance to the general election — she is being challenged from the left by fellow Democrat Kevin de Leon in the general election. In fact, de Leon was recently endorsed by the California Democratic Party in a rebuke to Feinstein.

Last year Feinstein, who will lead any Democratic effort to stall Kavanaugh’s nomination in committee, aggressively questioned Neil Gorsuch on his work in the George W. Bush administration. Given Kavanaugh’s work in the same administration, it would be fair to expect Feinstein to focus some of her questioning on that period of his career during the confirmation hearing.

The Gorsuch voters

Three Democrats voted for Neil Gorsuch last year: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia. Each is up for re-election this November in a state that Trump won easily in 2016. They are three of five Democrats that conservative groups are hoping to pressure into voting for Kavanaugh. The statements put out by Donnelly, Heitkamp and Manchin, in contrast to those of most of their fellow Democrats, show some openness to supporting the nominee.

Donnelly said after Kavanaugh’s nomination:

As I have said, part of my job as Senator includes thoroughly considering judicial nominations, including to the Supreme Court. I will take the same approach as I have previously for a Supreme Court vacancy. Following the president’s announcement, I will carefully review and consider the record and qualifications of Judge Brett Kavanaugh.

Heitkamp’s statement sought to differentiate herself from fellow Democrats by saying, “I understand that many members of Congress and outside groups will announce how they stand on the nominee before doing their due diligence and instead just take a partisan stance — but that isn’t how I work.” She specifically mentioned her support for Gorsuch in the same statement.

For his part, Manchin seems to have settled on the specific issue that will determine whether he supports Kavanaugh: the Affordable Care Act. His statement on the night of the nomination singled out healthcare as a key issue:

I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy and particularly, his views on healthcare. The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare. This decision will directly impact almost 40% of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.

In a recent town hall with constituents, Manchin said that he would ask Kavanaugh if he believes that the ACA is constitutional. As Tejinder Singh wrote for this blog last week, Kavanaugh’s record as a circuit judge “shows that [he] is willing to look for artful ways to avoid deciding questions he does not want to decide.” If Kavanaugh is able to convince Manchin that he will not vote to repeal the ACA, he may well have the West Virginian’s vote.

Other threatened Democrats

Donnelly, Heitkamp and Manchin are only three of the 10 Democratic senators running for re-election in states Trump won in 2016. The other two senators whom conservative groups are most focused on pressuring into voting for Kavanaugh are Claire McCaskill of Missouri and Jon Tester of Montana. Both of them have said little about Kavanaugh, only offering that they will meet with the nominee and consider his record.

The other five most vulnerable Democrats, Bob Casey of Pennsylvania, Sherrod Brown of Ohio, Bill Nelson of Florida, Tammy Baldwin of Wisconsin and Debbie Stabenow of Michigan, have all indicated or confirmed that they will vote against Kavanaugh’s nomination.

Tim Kaine represents Virginia, a state that Hillary Clinton won, with Kaine on the ballot for vice president, in 2016, but he is up for re-election and has said he will wait to decide on Kavanaugh until after he watches the confirmation hearing. He has singled out the ACA and abortion rights as issues he is most focused on.

The last Democrat who could potentially vote to confirm Kavanaugh is Doug Jones of Alabama, who upset Roy Moore in a special election last year. Jones is not up for re-election until 2020, but he represents a deep-red state. He has said only that he is “going to do a deep dive of his record and we’ll talk about that record… I’ll make my judgment at that point.”

Presidential hopefuls

The New York Times identified four members of the Democratic caucus who are preparing to run for the party’s nomination for president in 2020: Elizabeth Warren of Massachusetts, Kamala Harris of California, Cory Booker of New Jersey and Bernie Sanders of Vermont. None will vote for Kavanaugh, but it is worth monitoring how they each approach the nomination fight. Harris and Booker, as members of the Judiciary Committee, have an opportunity to produce a viral soundbite in hearings.

Warren and Sanders, along with another potential 2020 candidate, Kirsten Gillibrand of New York, will likely be battling for the support of the ascendant left-wing base. As some on the left have begun to call for a future Democratic president to pack the Supreme Court to ensure a liberal majority, one of these three senators may try to appeal to that base by saying he or she will pack the court if elected. Although it is unlikely that any senator will call for court-packing during the Kavanaugh proceedings, any lines of attack that suggest that Trump’s nominees are illegitimate could foreshadow an attempt to neutralize their power on the Supreme Court.

Conclusion

The Democrats are ultimately powerless to stop Kavanaugh’s nomination if the most likely scenario, in which no Republican breaks rank and the party has either 51 or 50 votes depending on McCain’s health, comes to fruition. In that case, it would be reasonable to expect somewhere between three and six conservative Democrats to also vote to confirm Kavanaugh as they seek to appeal to potential moderate voters in November. If, however unlikely it may be, it seems that a Republican senator is seriously considering voting against Kavanaugh, look for Schumer to aggressively shepherd his caucus into holding a firm line in the hopes of defeating Trump’s nominee, which would be a major blow to the GOP ahead of the midterms.

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Kavanaugh’s extra-judicial writing and speeches

Kavanaugh’s extra-judicial writing and speechesWe’ve collected extra-judicial writing, speeches and panel appearances of Judge Brett Kavanaugh. We may continue to update this post as we find additional materials. Articles and speech transcripts published in law reviews “Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings,” published in Volume 99 of the Yale Law Journal, 1989 “The […]

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Kavanaugh’s extra-judicial writing and speeches

We’ve collected extra-judicial writing, speeches and panel appearances of Judge Brett Kavanaugh. We may continue to update this post as we find additional materials.

Articles and speech transcripts published in law reviews

Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings,” published in Volume 99 of the Yale Law Journal, 1989

The President and the Independent Counsel,” published in Volume 86 of the Georgetown Law Journal, 1997

Separation of Powers During the Forty-Fourth Presidency and Beyond,” published in Volume 93 of the Minnesota Law Review, 2008

War, Terror, and the Federal Courts, Ten Years After 9/11,” Published in Volume 61, Issue 5, of the American University Law Review, 2012 (subscription may be required)

A Dialogue with Federal Judges on the Role of History in Interpretation,” transcript of a 2011 panel discussion published in Volume 80, Number 6, of the George Washington Law Review, 2012

Sumner Canary Memorial Lecture: “The Courts and the Administrative State,” published in Valume 64, Issue 3, of the Case Western Reserve Law Review, 2014

Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution,” Published in Volume 89, Issue 5, of the Notre Dame Law Review, 2014

Fixing Statutory Interpretation,” a book review of “Judging Statutes,” by Robert Katzmann, published in Volume 129 of the Harvard Law Review, 2015

The Judge as Umpire: Ten Principles,” a transcript of a speech given as part of the Pope John XXIII Lecture Series at the Catholic University of America, published in Volume 65, Issue 3, of the Catholic University Law Review, 2016

Keynote Address for the Federal Courts, Pratice & Procedure Symposium: Justice Scalia and the Federal Courts: “Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions,” published in Volume 92, Issue 5, of the Notre Dame Law Review, 2017

Additional writings

First Let Congress Do Its Job,” Letter to the editor published in The Washington Post, 1999

Starr Report,” Letter to the editor published in The New York Times, 1999

To Us, Starr is an American Hero,” Op-ed published with Robert Bittman and Solomon Wisenberg in The Washington Post, 1999

We All Supported Kenneth Starr,” Letter to the editor published in The Washington Post, 1999

Indictment of an Ex-President,” Letter to the editor published with Robert Bittman in The Washington Post, 1999

Are Hawaiians Indians? The Justice Department Thinks So,” Op-ed published in The Wall Street Journal, 1999

The Law of Judicial Precedent,” Thomson West, 2016 (with 12 others)

Additional speeches and public appearances

Independent Counsel Statute Future,” American Bar Association panel, C-SPAN, 1998

Independent Counsel Structure & Function,” American Bar Association panel, C-SPAN, 1998

Kenneth Starr Appreciation Dinner,” C-SPAN, 1999

Republican Legal Issues,” Republican National Lawyers Association panel, C-SPAN, 2002

Role and Responsibilities of Executive Branch,” American Judicature Society, C-SPAN, 2002

Senate Judiciary Committee Hearings, May 9, 2006

Intellectual Property: American Exceptionalism or International Harmonization?” Federalist Society National Lawyers Convention panel, 2007

Religious Liberty and the Limits of Government Power,” Federalist Society National Lawyers Convention panel, 2009

Moot Court on the Rationing of Health Care,” National Constitution Center, C-SPAN, 2010

Anonymity and The First Amendment,” Federalist Society National Lawyers Convention panel, 2010

Judgment at Agincourt Moot Court Trial,” Shakespeare Theare Company, C-SPAN, 2010

Judicial Decision-Making,” SMU Dedman Law panel, 2011

The Welfare State and American Exceptionalism,” Federalist Society Annual Student Symposium panel, 2011

Attorneys Fees in Class Actions,” Federalist Society National Lawyers Convention panel, 2011

The Rule of Law and the Administrative State,” Federalist Society Annual Student Symposium panel, 2012

The Administrative State After the Health Care Cases,” Federalist Society National Lawyers Convention panel, 2012

The FCC vs. the First Amendment,” Federalist Society National Lawyers Convention panel, 2013

Deference Meets Delegation: Which is the Most Dangerous Branch?” Federalist Society National Lawyers Convention panel, 2015

Federal Courts and Public Policy,” American Enterprise Institute, C-SPAN, 2016

Law and Romeo and Juliet,” Shakespeare Theatre Company, C-SPAN, 2017

The Future of Antitrust: Is the Consumer Welfare Standard Still Up to the Task or Is It Time for a ‘Better Deal’?,’” Federalist Society National Lawyers Convention panel, 2017

2017 Walter Berns Constitution Day Lecture: “From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist,” American Enterprise Institute, 2017

129th Commencement Address, Catholic University of American Columbus School of Law, 2018

Remarks accepting nomination to the Supreme Court, July 9, 2018

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