Tuesday round-up

Tuesday round-upAt The Hill, Lydia Wheeler reports that “[a] group working to make the Supreme Court more transparent has asked a federal judge to force the government to release tens of thousands of documents related to [Supreme Court nominee Judge Brett Kavanaugh’s] past work.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription […]

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Tuesday round-up

At The Hill, Lydia Wheeler reports that “[a] group working to make the Supreme Court more transparent has asked a federal judge to force the government to release tens of thousands of documents related to [Supreme Court nominee Judge Brett Kavanaugh’s] past work.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription or registration required), who reports that “Fix the Court, aided by American Oversight, sought injunctions against the National Archives and Records Administration and the Department of Justice,” arguing that “the agencies’ failure to respond adequately to previous Freedom of Information Act requests will deprive the public of ‘information essential to ensure that Judge Kavanaugh’s appointment receives rigorous, informed debate.’”

The editorial board of The Washington Post worries that “confirmation battles for major judgeships are looking more and more like political campaigns, with shadowy groups pouring cash into national advertising and lobbying initiatives while keeping their donors and spending decisions opaque.” At Vox, Li Zhou explains that “Democrats may be focused on sinking Brett Kavanaugh’s Supreme Court nomination in the short term, but many note that the fight also offers its own long-term lesson: The party desperately needs to educate voters about the importance of the Supreme Court.”

At Bloomberg, Sahil Kapur reports that an “artful dodge” in an early challenge to the Affordable Care Act may have kept Kavanaugh’s Supreme Court prospects alive. At the Yale Journal on Regulation’s Notice & Comment blog, Aaron Nielson questions this characterization of Kavanaugh’s approach to the ACA case.

The Reporters Committee for Freedom of the Press surveys Kavanaugh’s record on First Amendment issues that affect journalists. At E&E News, Amanda Reilly examines the different approaches to environmental cases taken by Kavanaugh and his colleague on the D.C. Circuit and President Barack Obama’s Supreme Court nominee Chief Judge Merrick Garland.

In an op-ed for The New York Times, Jonathan Adler remarks that “[i]n Brett Kavanaugh, President Trump may not have found a justice to ‘deconstruct the administrative state’ — in Steve Bannon’s formulation — but he has found one who will help bring it to heel.” In an op-ed for The Wall Street Journal, Peter Wallison agrees that Kavanaugh’s “confirmation is likely to strengthen the court’s support for the Constitution’s separation of powers,” reaffirming “the principle that judges, not administrators, are the arbiters of what a statute means—and of whether Congress has granted the agency the power it claims.” At National Review, Carrie Severino maintains that “Judge Kavanaugh’s foremost dedication to the rule of law, irrespective of policy outcomes—… likens him to Justice Gorsuch, and will make Judge Kavanaugh an outstanding justice on the Supreme Court.”

At truthdig, Bill Blum observes that “even before Kennedy announced his retirement, the Supreme Court was hardly a liberal or even a centrist institution.” In an op-ed for USA Today, Richard Greene argues that “[t]he Senate must, at the very least, wait until the end of the special prosecutor’s investigation before voting on whether to confirm Kavanaugh.” At The American Prospect, Dennis Henigan identifies “at least one issue on which Judge Kavanaugh is plainly outside the mainstream of current jurisprudential thought: guns and the Second Amendment.”

Briefly:

  • At Governing, Katherine Barrett and Richard Greene note that “[e]ven before the U.S. Supreme Court dealt a blow to public unions in June,” in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities, “some states were making moves to soften that potential blow.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

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Monday round-up

Monday round-upA week after the nomination of Judge Brett Kavanaugh for the Supreme Court, coverage of the confirmation process abounds. For The Hill, Alexander Bolton reports that “Kavanaugh seems on track for confirmation, as moderate Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have not signaled plans to oppose his confirmation despite strong lobbying over their votes.” In another article for […]

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Monday round-up

A week after the nomination of Judge Brett Kavanaugh for the Supreme Court, coverage of the confirmation process abounds. For The Hill, Alexander Bolton reports that “Kavanaugh seems on track for confirmation, as moderate Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have not signaled plans to oppose his confirmation despite strong lobbying over their votes.” In another article for The Hill, Bolton reports that “Democrats are fighting among themselves over how far to go to oppose … Kavanaugh and tempers are starting to flare ahead of a decision that could weigh heavily on the midterm elections.” At the Associated Press, Thomas Beaumont and Steve Peoples report that “[e]ven among this year’s most prized voting bloc — educated suburban women — there’s no evidence that a groundswell of opposition to a conservative transformation of the judicial branch, which could lead to the erosion or reversal of Roe v. Wade, will significantly alter the trajectory of the midterms, particularly in the House.”

For Politico, Burgess Everett and Elana Schor report that “Kavanaugh’s nomination is already a huge headache for … Senate minority leader” Chuck Schumer of New York. For Politico, Carla Marinucci reports that “Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, said Saturday that the vetting process for the confirmation of Brett Kavanaugh to the Supreme Court will be “incredibly difficult,’’ and that her staff is reading nearly 1 million documents that she said could give red-state Democrats reason to oppose his nomination.”

Jane Mayer reports for The New Yorker that “Democrats, who are casting for an effective line of argument against Kavanaugh, see the health-care issue as their best bet to date.” Additional reporting on the Democratic response to the nomination comes from Molly Hensley-Clancy for BuzzFeed News. For The Hill, Lydia Wheeler reports that “Brett Kavanaugh’s unusually lengthy paper trail and the president’s power to keep some documents confidential could become a flashpoint in Senate Democratic efforts to thoroughly vet the Supreme Court nominee.”

For The New York Times, Carl Hulse observes that if the Democrats had not filibustered the nomination of Judge Neil Gorsuch, resulting in the loss of the filibuster for Supreme Court nominations, President Donald Trump “might have been forced to find a more consensus candidate.” In a Washington Post analysis, Paul Kane notes that “[l]awmakers are scouring th[e] showdown last decade [over Kavanaugh’s nomination to the court of appeals] for clues to how the federal judge handled certain questions — and which questions he simply ducked.” At CNN, Harry Enten concludes that Kavanaugh’s nomination is likely to be defeated “only if the public turns against his confirmation, … as they did with Robert Bork in 1987.”

For NPR, Nina Totenberg questions GOP senators’ invocation of “something they call ‘the Ginsburg rule,’” based on their contention “that at her confirmation hearing, liberal nominee Ruth Bader Ginsburg established a precedent for refusing to answer questions about issues before the Supreme Court,” pointing out that “a recent study shows that [Ginsburg] was among the most responsive nominees ever to appear before the senate Judiciary Committee.” In an op-ed for The Washington Post, Jeffrey Segal debunks “five of the most persistent misconceptions” about the Supreme Court, with an eye to the extent to which political considerations influence the institution.

For The New York Times, Scott Shane and others review Kavanaugh’s career, noting that “Kavanaugh is by legacy and experience a charter member of elite Washington.” In an op-ed for The Washington Post, Ruth Marcus observes that although Kavanaugh “describes Justice Anthony M. Kennedy, for whom he clerked and whose seat he has been tapped to fill, as his ‘mentor,’” “Kavanaugh’s true judicial role models may be two other, significantly more conservative justices — William H. Rehnquist and Antonin Scalia.” For The Washington Post, Robert Barnes and Ann Marimow report that Kavanaugh’s speech “celebrat[ing] his ‘first judicial hero,’ the late Chief Justice William H. Rehnquist,” “and other writings and talks he has given, underscore how different he is from Kennedy.” Jess Bravin and Brent Kendall report for The Wall Street Journal that although “[t]here is little doubt the Supreme Court will extend its turn to the right if Judge Brett Kavanaugh joins the bench this fall,” “Kavanaugh’s connection with nearly every justice, and his reputation as a straight-shooter even among those who disagree with him, suggests he would make the ride as smooth as possible.”

For this blog, Amy Howe has an overview of Kavanaugh’s record here, while closer looks at the judge’s record on campaign finance, and on a law-review article about presidential power, come from Charles Davis, here, and Kevin Russell, here.

In an op-ed for The New York Times, Ari Berman maintains that Kavanaugh’s record “suggests that he will join with the court’s conservative justices to further roll back voting rights protections and other civil rights laws.” At ACS Blog, Ruben Garcia argues that “Kavanaugh’s 2014 dissenting opinion in SeaWorld of Florida, LLC v. Perez reflects Judge Kavanaugh’s deep skepticism of the institutions that Congress designed to protect American workers.” In an op-ed for The Hill, Julie Burkhart warns that “[t]he confirmation of Brett Kavanaugh to the Supreme Court will lead to a decision to overturn or gut the essence of Roe v. Wade.” At EarthJustice, Patrice Simms outlines what Kavanaugh’s nomination “means for the future of environmental protections.” Ernie Haffner’s eponymous blog looks at Kavanaugh’s opinions in federal employment discrimination cases, concluding that “Kavanaugh’s EEO opinions offer something for both employers and employees to like — he can be comfortable with curtailing EEO protections to prevent conflicts with other interests, but he interprets protections broadly when he believes they are supported by the statutory text.”

At Jost on Justice, Kenneth Jost contends that “Brett Kavanaugh’s on-and-off relationship with the U.S. presidency demonstrates that he is a creature of situational ethics, far from the judge of unbending moral principle as his admirers claim.” The editorial board of the Wall Street Journal pushes back against suggestions that “President Trump appointed Judge Kavanaugh to save him in a constitutional showdown with special counsel Robert Mueller,” arguing that “Judge Kavanaugh’s legal record suggests he will be more skeptical of executive regulatory power than most liberal judges are today.” And in an op-ed for The Wall Street Journal, Daniel Henninger finds it “possible that the Kavanaugh Court may give everyone a chance to step back from the political cliff.”

Briefly:

  • For The New York Times, Erica Green reports on how teachers unions are coping with the fallout from the Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • The editorial board of the Broward County, Fla., Sun Sentinel maintains that the message of the court’s decision last term in Lozman v. City of Riviera Beach “is clear: a citizen’s First Amendment rights cannot be cut short by elected officials who don’t like what’s being said during a public meeting.”
  • At the George Washington Law Review’s Notice and Comment blog, Anita Sinha responds to the court’s decision in the entry-ban case, Trump v. Hawaii.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Friday round-up

Friday round-upFor The Wall Street Journal, Jess Bravin and Brent Kendall report that “[t]he confirmation battle over Supreme Court nominee Brett Kavanaugh likely will look backward as much as forward,” examining “not only what his 12-year record on a federal appeals court suggests about his future votes but also whether his enlistment in the political wars of the […]

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Friday round-up

For The Wall Street Journal, Jess Bravin and Brent Kendall report that “[t]he confirmation battle over Supreme Court nominee Brett Kavanaugh likely will look backward as much as forward,” examining “not only what his 12-year record on a federal appeals court suggests about his future votes but also whether his enlistment in the political wars of the Bill Clinton and George Bush eras marks him as a partisan operative or an energetic patriot.” For The Economist, Steven Mazie observes that “Mr Kavanaugh has insisted that judges must always put party politics aside” and that “[h]is installation on the Supreme Court will test whether that is really possible.” For The New York Times, Erin McCann offers “a distilled version of what’s happened since President Trump introduced his court nominee to the world on Monday night.”

For The Hill, Jordain Carney reports that “Senate Democrats are in a terrible bind as they search for a strategy to block Supreme Court nominee Brett Kavanaugh,” finding themselves caught between the demands of red-state Democratic re-election candidates and those of a “progressive base.” A policy chat at FiveThirtyEight covers “the politics of the selection,” “run[ning] through each of the power players … and talk[ing] about what their strategy should be.” For the Associated Press, Jessica Gresko reports that it would likely take “the death of a justice” for “President Donald Trump to get yet another Supreme Court pick.”

At The Atlantic, David Graham looks into questions about the credit-card debt revealed on Kavanaugh’s financial-disclosure forms and “how he paid the debt off so quickly.” The editorial board of The Wall Street Journal warns that “the smears” against Kavanaugh “have begun even earlier than usual,” and that “[t]his week’s mud on the wall includes a claim of guilt by association when Mr. Kavanaugh was a law clerk 27 years ago.”

At The Nation, Gregg Levine offers 10 “tough questions about important issues that might come before the Court” that progressives would like Kavanaugh to answer at his confirmation hearing. In an op-ed at TC Palm, Mark Miller considers how the topic of stare decisis, or adherence to precedent, may come up during the confirmation, noting that “while stare decisis is a vital legal principle, the justices of the Supreme Court have never considered it a non-negotiable command.” At The Federalist, Margot Cleveland maintains that “[o]n the Second Amendment, Kavanaugh supports ‘common sense gun control.’”

At The Atlantic, Ronald Brownstein suggests that “the real key to [Kavanaugh’s] legal—and political—impact on the Supreme Court could eventually be his demonstrated resistance to the federal regulation of business.” At Vox, Matthew Yglesias argues that “Kavanaugh’s doctrine is not about the promotion of self-government or even about deference, it’s about viewing discretion as a one-way street that is always biased against regulation.”

Also at The Atlantic, Robinson Meyer notes that “Kavanaugh has sometimes sympathized with the need for environmental protection,” “[b]ut because he considers global warming to be charged with a ‘huge policy imperative,’ he’s skeptical that the Environment Protection Agency (or the executive branch) should be fighting it alone,” “[a]nd as a future justice, he’s likely to block the agency from doing so.” At Inside Climate News, Marianne Lavelle observes that Kavanaugh “has compiled an extensive record of skepticism toward the government’s powers to act on climate change.”

At The Advocate, Shannon Price Minter worries about the effect of Kavanaugh’s appointment on “LGBTQ people and other vulnerable groups.” At National Review, Dan McLaughlin looks at a criminal case involving a “battered-woman defense,” noting that “Judge Kavanaugh was empathetic, able to look at the duress defense both from the perspective of the battered woman’s fear of leaving and the perspective of jurors asking the common-sense question ‘why didn’t she leave?’” In an op-ed for The Wall Street Journal, Amy Chua remarks on Kavanaugh’s record as “a mentor for young lawyers, particularly women,” observing that when “the press is full of stories about powerful men exploiting or abusing female employees,” it is “even more striking to hear Judge Kavanaugh’s female clerks speak of his decency and his role as a fierce champion of their careers.”

Megan Brennan reports at Gallup that “[a]s the U.S. Senate prepares to hold confirmation hearings for Supreme Court nominee Brett Kavanaugh, the public is strongly opposed to any attempts to overturn Roe v. Wade, the landmark 1973 ruling that made abortion legal nationwide.” At The Daily Beast, Jay Michaelson maintains that “[i]n a speech given just last year to the American Enterprise Institute, Kavanaugh made it perfectly clear that he believes Roe to have been wrongly decided.” In an op-ed for Politico Magazine, Rich Lowry argues that “[i]f the left were serious about its new worries about an undemocratic court, it would welcome the prospect of overturning Roe v. Wade and returning the issue of abortion directly to the voters.”

At The American Spectator, Dov Fischer endorses Kavanaugh’s nomination, arguing that “[n]ot only do [his] writings reflect a solidly conservative approach to jurisprudence, though less overtly partisan and combative than was Justice Scalia’s style, but he is the right person for the right moment.” For The Atlantic, Paul Rosenzweig recounts his experience arguing a pro bono case before Kavanaugh in the court of appeals, noting that “[a]t least in this one instance, he was generous and open to the appeal of the little guy.”

At OurFuture.org, Sam Pizzigati argues that in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities, the Supreme Court “has totally ignored growing economic inequality.” The editorial board of The Wall Street Journal suggests that in “the post-Janus era when they can no longer conscript non-members to subsidize union political activities,” “[m]aybe unions should stop taking political positions that alienate so many workers.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Briefly:

  • At The Data Face, Oliver Gladfelter measures “party-line votes” on the Supreme Court, concluding that “[w]ithout a moderate on the court, it’s likely the amount of contentious 5-4 cases will significantly increase.”
  • At Take Care, John Paul Schnapper-Casteras observes that a trio of opinions at the end of October Term 2017 “suggests this might be the year that the Court begins to meaningfully grapple with the constitutional implications of emerging technologies.”
  • For The New York Times, Alan Feuer reports that “[a]n array of criminal justice advocates — civil libertarians, a law enforcement organization, even a group run by the industrialist Koch brothers — has joined forces to ask the Supreme Court to reconsider the contentious doctrine of qualified immunity, which permits the authorities to avoid being sued for misconduct even when they violate the law.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Frank v. Gaos, which challenges a class-action settlement in a privacy case against Google in which, under the doctrine of cy press, settlement money was “diver[ted] … from the victims to causes chosen by the lawyers is referred,” arguing that “[t]he use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.”
  • At Bloomberg Law, Kimberly Robinson reports on “[t]he ‘constellation model’—where there are several bright stars rather than all appellate attorneys in service to one—” used successfully this term by one law firm specializing in Supreme Court cases.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Thursday round-up

Thursday round-upThe nomination of Judge Brett Kavanaugh to the Supreme Court remains front and center in the news. For The Washington Post, Amy Brittain reports that financial disclosures and information provided by the White House indicate that “Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and […]

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Thursday round-up

The nomination of Judge Brett Kavanaugh to the Supreme Court remains front and center in the news. For The Washington Post, Amy Brittain reports that financial disclosures and information provided by the White House indicate that “Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets.” For The New York Times, Katie Benner reports that “Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the government documents of Judge Brett M. Kavanaugh,” and that the request “was an unusual insertion of politics into federal law enforcement.” For The Washington Post’s Fact Checker column, Salvador Rizzo examines speculation about “a past business relationship between Donald Trump and one of Kennedy’s sons” that some have suggested may have influenced the justice’s recent rulings or his decision to retire, giving the allegations four Pinocchios.

At CNN, Joan Biskupic analyzes Kavanaugh’s record, concluding that “he stands to be more than just a reliable vote for the right” and that “[h]e could powerfully influence the country’s legal agenda for decades.” For The Washington Post, Robert Barnes and Ann Marimow report that “Kavanaugh has only one major abortion ruling in his 12 years on the federal bench, but that forceful opinion will define the coming debate on what his elevation to the Supreme Court would mean for a woman’s constitutional right to the procedure.” At Bloomberg, Sahil Kapur and Greg Stohr report that “senators and activists on both sides of the debate” say “Kavanaugh’s views on gun rights may push the court to expand Second Amendment protections.”

Also at Bloomberg, Jennifer Dlouhy and others report that “Kavanaugh could add a powerful new voice on the Supreme Court to restrain what government agencies can do, ushering in a new era of tougher scrutiny of federal regulations loathed by businesses.” At Bloomberg Law, Madison Alder reports that Kavanaugh “would likely continue Justice Anthony Kennedy ‘s legacy of siding with the conservative justices in labor, employment, and benefits cases, though he may diverge from his predecessor’s views on gay bias.” Casey Quinlan argues at ThinkProgress that “Brett Kavanaugh’s confirmation to the Supreme Court will be bad news for workers’ rights.”

At Education Week’s School Law Blog, Mark Walsh reports that Kavanaugh “has argued for allowing students to lead prayers at high school events and supported the inclusion of religious schools in voucher programs.” At Reason’s Hit & Run blog, Damon Root flags Kavanaugh’s “possible shortcomings on the Fourth Amendment front.” At People for the American Way, Devon Schmidt argues that “affordable health care for all will be at serious risk” if Kavanaugh joins the Supreme Court. At the Brennan Center, Ian Vandewalker suggests that a 2011 opinion casts doubt on “whether [Kavanaugh] believes that the Constitution blocks America’s elected leaders from protecting our democracy from foreign attacks.”

Kavanaugh’s record on environmental issues is the focus for Sofie Werthan at Slate, who cites his multiple rulings “against Environmental Protection Agency attempts to regulate air pollution and address climate change.” At E&E News, Amanda Reilly reports that Kavanaugh’s writings in environmental cases reflect his “emphasis on making sure agencies review both the benefits and costs of regulations.” Also at E&E News, Reilly explores Kavanaugh’s views on Chevron deference, the doctrine that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes, noting that although “Kavanaugh hasn’t called the Chevron doctrine entirely into question or questioned whether the law world would be better without it,” “he could side with other conservatives on the court in limiting its application.”

At Politico, Darren Samuelsohn reports that “Kavanaugh’s … writings and comments warning about the dangers of … sprawling probes [of a president] — including that sitting presidents should not be subjected to criminal investigations — … are already being weaponized by Democrats.” Additional coverage comes from Josh Gerstein, also at Politico. For The New York Times, Sheryl Gay Stolberg reports that “Democrats who once saw health care and abortion as their best lines of attack against … Kavanaugh … are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.” But in an op-ed for Bloomberg View, Noah Feldman argues that “[p]roperly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.” At Lawfare, Benjamin Wittes agrees, maintaining that Kavanaugh’s extra-judicial writings about presidential investigations, highlighting as a “salient fact … that Kavanaugh has articulated a vision of a legitimate and appropriate investigation under our constitutional scheme and that it looks so much like the Mueller structure—and that he believes that the president of the United States has no common-law privileges before such an investigation.”

In an analysis for The Washington Post, Elliott Ash and Daniel Chen maintain that “[a]ccording to a deep, data-driven survey of his writings from the bench, [Kavanaugh] is an uncommonly partisan judge, even compared to other federal appeals court judges.” In an op-ed for The New York Times, Leah Litman worries that the reconstituted court “will rarely act as a shield for groups — such as undocumented women — who are victimized by the political process.” At Rewire.News, Jessica Mason Pieklo argues that “[t]here is no liberal case for Brett Kavanaugh.” In a Washington Post op-ed, E.J. Dionne rejects the idea that “because Kavanaugh is qualified, well-educated, intelligent and likable, senators should fall in line behind him,” noting that “[i]n blocking [Judge Merrick] Garland, conservatives made clear that personal qualities have nothing to do with confirmation battles.”

At Politico Magazine, John Harris and Matthew Nussbaum remark that “Kavanaugh’s ascension would further ratify a trend that has been building for a generation: a court of careerists,” whose “members occupy an increasingly narrow strand of American life.” In an empirical analysis for The New York Times, Denise Lu and others confirm that Kavanaugh followed a familiar path to the nomination.

For the Associated Press, Lisa Lerer and Steve Peoples point out that “Democrats [have] struggled to unify behind a clear and coherent message to combat the nomination.” At The Nation, Joan Walsh looks at some lines of attack Democrats might pursue. In an op-ed for Roll Call, Walter Shapiro suggests that the Kavanaugh pick might not be as safe as it seems. At The American Prospect, Simon Lazarus explains why and how Democrats should “initially frame the debate” over “the nominee’s absolutist vision of presidential power.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “Yale Law School professor Akhil Amar said Tuesday he will speak in favor of the U.S. Supreme Court nominee before the Senate Judiciary Committee if asked to do so.”

For The New York Times, Jonathan Martin and Alexander Burns report that “the long-awaited debate over replacing Justice Anthony M. Kennedy’s swing vote is more likely to intensify the existing forces of the 2018 midterm elections rather than turn the campaign on its head.”

Briefly:

  • At the Cato Institute’s Cato at Liberty blog, Jay Schweikert remarks that what may be “the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court” urges the justices to “reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.”
  • At the Daily Journal (subscription required), David Boyle looks at National Institute of Family and Life Advocates v. Becerra, in which the court held that a California statute that requires crisis pregnancy centers to make certain disclosures likely violates the First Amendment, suggesting that the state may be able “to resurrect the unlicensed-disclosure requirement in the future.”
  • At American Thinker, Deborah La Fetra maintains that the “Gift Clause[s]” in state constitutions would prevent states from enacting “workarounds” to the court’s recent decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “John Malcolm joins Elizabeth Slattery to talk about attending the huge SCOTUS announcement at the White House.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Wednesday round-up

Wednesday round-upPresident Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court continues to garner coverage. Ashley Parker and Robert Costa of The Washington Post report on moments leading up the decision, while Niall Stanage of The Hill lists “five big takeaways from the announcement.” Commentary comes from Carolyn Shapiro at Fortune, who criticizes Trump’s […]

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Wednesday round-up

President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court continues to garner coverage. Ashley Parker and Robert Costa of The Washington Post report on moments leading up the decision, while Niall Stanage of The Hill lists “five big takeaways from the announcement.” Commentary comes from Carolyn Shapiro at Fortune, who criticizes Trump’s remarks about judges setting aside personal opinions “to do what the law and the Constitution require,” as well as similar comments by Kavanaugh, for being “misleading because they suggest that there are always neutral and objectively correct answers to the hardest legal questions.” Additional commentary comes from David A. Graham at The Atlantic.

At Slate, Lili Loofbourow examines the process leading up to the president’s announcement, concluding that the president’s “point of stoking Nielsen ratings and delivering Kavanaugh was to get as many people to witness what he badly wanted them to: a normal conservative with respectable credentials and a pleasant family presented without vitriol or demagoguery.” In The New York Times, Adam Liptak reports on Kavanaugh’s positions on criminal investigations of sitting presidents and the status of Robert Mueller’s investigation. Additional coverage comes from Salvador Rizzo of The Washington Post. At Slate, Dahlia Lithwick looks into the political consequences of Kavanaugh’s nomination for the midterm elections, suggesting that the “midterms, effective this week, will instead be about whether Trump’s proposed new justice thinks the president can pardon himself. As Republican get-out-the-vote messages go, it’s not a strong one.” Additional commentary comes from Michael A. Cohen at Boston Globe.

“Democrats went on the attack Tuesday against President Trump’s new pick for the Supreme Court,” reports Alexander Bolton of The Hill, “but acknowledged they are unlikely to win the war.” Senate Minority Leader Chuck Schumer of New York has declared that the nominee “has an obligation—a serious and solemn obligation—to share their personal views” on a range of contentious legal issues,” Russell Berman reports in The Atlantic. In an op-ed for Boston Globe, Jeff Jacoby also argues that Kavanaugh should be forthcoming with senators – as, he says, Justice Anthony Kennedy was. David Von Drehle, in an op-ed for The Washington Post, assesses the political situation facing Schumer and suggests that his “tide may be going out.” Political Charge compiles five reasons to oppose Kavanaugh’s nomination and urges its readers to tell senators not to confirm him. Microsoft News provides polling data concerning political interests surrounding this vacancy and the last one.

As for Republicans, Liz Goodwin of The Boston Globe reports that a “detailed review of [Maine Senator Susan] Collins’s voting record reveals that she is anything but a maverick when it comes to the courts, consistently supporting nominees put forth by Republican presidents.” Scott Lemieux of NBC News reports that the nomination “demonstrates the binding power of the conservative legal movement that has pushed the federal courts to the right for decades, while also drawing Trump ever closer to the Republican Party.” Commentary comes from Elaina Plott for The Atlantic, suggesting that many find Trump’s nominations “worth any deeper, institutional threats that this administration may pose.”

Ian MacDougall of ProPublica compiles what he describes as “some of the best reporting on Kavanaugh.” Ellen M. Gilmer of E&E News reports that Kavanaugh “has handled more energy and environmental cases than any other short-listers for Kennedy’s seat,” involving everything from federal climate regulations to gas exports and the Dakota Access pipeline. Other investigations into Kavanaugh’s past record and views comes from David Markus of SDFLA Blog on criminal justice, Elaine S. Povich and Alayna Alvarez of Governing on states’ rights, and Amy Lee Rosen of Law 360 on tax law. Noting an amicus brief filed yesterday by the Pacific Legal Foundation relying on a Kavanaugh dissent, Oliver Dunford in a blog post writes that “the high Court has more than a few times adopted the reasoning from Judge Kavanaugh’s dissenting opinions—particularly in the area of Administrative Law.” With two posts at Reason, Jonathan Adler and Ilya Somin take more comprehensive looks. Boston Globe covers his background as a professor at Harvard Law School.

Commentary on the change Kavanaugh’s presence will bring to the court comes from Imani Gandy and Jessica Mason Pieklo on the Boom! Lawyered (podcast) and Andrew Cohen for Rolling Stone. Michael Bobelian of Forbes looks at consequences for the business community, with a review of the history of business interests at the court. At the same time, Richard Wolf of USA Today reports that “a comparison of Kavanaugh’s record on the U.S. Court of Appeals for the District of Columbia Circuit to Justice Anthony Kennedy’s record on the Supreme Court leaves the degree of change in doubt.”

Either way, Kavanaugh “may not have to wait too long for controversial cases if he is confirmed to the job, with disputes involving abortion, immigration, gay rights, voting rights and transgender troops possibly heading toward the justices soon,” report Lawrence Hurley and Andrew Chung for Reuters. Mark Joseph Stern of Slate contends that “there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.” Julie Rovner of Governing reports that many states are poised to ban abortion, if Roe v. Wade is overturned.

At Slate, Jordan Weissmann disputes Akhil Reed Amar’s op-ed in The New York Times, “A Liberal’s Case for Brett Kavanaugh,” in which Amar calls Kavanaugh’s nomination “Trump’s finest hour, his classiest move”; Weissmann contends that “in the post Merrick Garland era, in which nominations are clearly about pure power politics and little else, a piece like Amar’s at worst reeks of the amoral Ivy League clubbiness that still defines the upper reaches of the legal world and at best is simply naive.”

Alexia Elejalde-Ruiz of Governing reports that the court’s ruling in Janus v. American Federation of State, County and Municipal Employees, in which the court held that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, “could squeeze overall union revenue, limiting organized labor’s ability to champion a variety of progressive causes that affect private sector workplaces as well.” In an op-ed at Daily Journal, Deborah la Fetra contends that the “high court’s Janus decision is about state power, not unions.”

Briefly:

  • Following Lucia v. Securities and Exchange Commission, in which the court held that SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause, who have to be appointed by the president, a court or a department head, Trump has issued an executive order under which “[f]ederal administrative law judges will be hired directly by individual agencies, rather than from a central pool of candidates,” reports Eric Yoder of The Washington Post.

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Tuesday round-up

Tuesday round-upYesterday President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court. Amy Howe has this blog’s coverage; Mark Walsh provides a “view” from the East Room. Additional coverage comes from Nina Totenberg on NPR’s Morning Edition (podcast), Tony Mauro of The National […]

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Tuesday round-up

Yesterday President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court. Amy Howe has this blog’s coverage; Mark Walsh provides a “view” from the East Room. Additional coverage comes from Nina Totenberg on NPR’s Morning Edition (podcast), Tony Mauro of The National Law Journal and David Jackson and Richard Wolf of USA Today. Commentary comes from Jessica Mason Pieklo of Rewire.News, who writes that “as in all reality TV, there was a clear winner in Trump’s selection process. But unlike on The Bachelorette, the rest of us are the ones who were always going to lose.”

Reporting on Kavanaugh as Washington insider comes from Richard Wolf of USA Today and Joan Biskupic of CNN. Writing for The Economist, Steven Mazie calls Kavanaugh “an unremarkable choice for a Republican president,” notwithstanding that for Trump, “who has departed from so many presidential norms, to have picked someone with close ties to the Washington, DC establishment, may seem surprising for its utter conventionality.”

At The National Law Journal, Tony Mauro lists seven of Kavanaugh’s “more notable rulings that will come into sharp focus now” as his nomination moves forward in the Senate; in a second story at The National Law Journal, Mauro, with Mike Scarcella, compiles “snippets from some of Kavanaugh’s remarks over the years” that could also attract attention. If Kavanaugh is confirmed, it “will not take long before the President’s ambition – to choose a Justice who would vote to roll back constitutional protection for women’s abortion rights – could be fulfilled or frustrated,” reports Lyle Denniston for Constitution Daily. Commentary comes from Bill Blum of Truthdig, who writes that except for Judge Amy Coney Barrett, “Trump could not have chosen a candidate who poses a greater threat to progressive values and causes.”

Briefly:

  • At The Atlantic, Garrett Epps marks the 150th anniversary of the 14th Amendment by reviewing the history around its ratification. He concludes that “Americans don’t agree on when the amendment was approved, and, I am sure, some in their hearts believe it should not bind the United States today. The battle of 1868 must be fought again, and so far it is not going well.”
  • Howard Fischer of Capitol Media Services covers Mount Lemmon Fire District v. Guido, a case about the “ability of the Mount Lemmon Fire District to fire its two oldest employees” that will be argued before the justices on the first day of the October 2018 term.
  • Writing for The Washington Post’s Monkey Cage blog, Bernard Grofman parses last term’s partisan-gerrymandering decisions in Gill v. Whitford and Benisek v. Lamone. He describes “tools from the cases” that could make a district-specific standard for challenging partisan gerrymanders “completely manageable.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Evening round-up: Trump nominates Kavanaugh to Supreme Court

Evening round-up: Trump nominates Kavanaugh to Supreme CourtThis evening President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court. Early coverage comes from Mark Landler and Maggie Haberman of The New York Times; Greg Stohr, Jennifer Jacobs and Jennifer Epstein of Bloomberg; and Robert Costa Robert Barnes and Felicia […]

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Evening round-up: Trump nominates Kavanaugh to Supreme Court

This evening President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court. Early coverage comes from Mark Landler and Maggie Haberman of The New York Times; Greg Stohr, Jennifer Jacobs and Jennifer Epstein of Bloomberg; and Robert Costa Robert Barnes and Felicia Sonmez of The Washington Post. Barnes has an article examining the implications for the court’s jurisprudence. More coverage comes from Matthew Nussbaum of Politico; Scott Horsley of NPR; Lawrence Hurley of Reuters; Jordan Fabian and Lydia Wheeler of The Hill; David Savage of the Los Angeles Times; Scott Bomboy of Constitution Daily; Mark Walsh of Education Week; Peter Nicholas and Louise Radnofsky of The Wall Street Journal; and Chris Geidner and Zoe Tillman of Buzzfeed.

Profiles of Kavanaugh come from Domenico Montanaro of NPR, Mark Sherman of the Associated Press, and Jess Bravin and Brent Kendall of The Wall Street Journal. Another piece in the Journal comes from Jacob Gershman. More profiles of Kavanaugh come from Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Ann Marimow of The Washington Post, Zoe Tillman of BuzzFeed News and Madison Alder of Bloomberg, while additional coverage of Kavanaugh’s record for Bloomberg comes from Fatima Hussein and Mary Anne Pazanowski, and also from Stohr and Andrew M. Harris.

Early commentary on the nomination comes from Emma Green at The Atlantic, Garrett Epps also has a piece in The Atlantic. More commentary comes from Dylan Matthews at Vox; Ian Millhiser of Think Progess; Evan Thomas for Yahoo News; and The New York Times editorial board, while another piece from the Times comes from Akhil Reed Amar

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Afternoon round-up

Afternoon round-upAt 9 p.m., President Donald Trump is expected to announce his nominee for the Supreme Court. Kimberly Atkins of Boston Herald reports on the “last-minute jockeying by lawmakers and other political stakeholders [that] played right into the reality show-like gamesmanship surrounding President Trump’s choice for Supreme Court nominee”; around 4 p.m. this afternoon, Catherine Lucey of […]

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Afternoon round-up

At 9 p.m., President Donald Trump is expected to announce his nominee for the Supreme Court. Kimberly Atkins of Boston Herald reports on the “last-minute jockeying by lawmakers and other political stakeholders [that] played right into the reality show-like gamesmanship surrounding President Trump’s choice for Supreme Court nominee”; around 4 p.m. this afternoon, Catherine Lucey of Associated Press reported that Trump had “decided on his Supreme Court nominee.”

Whomever Trump selects could set the court “on a new trajectory and deliver decisions to which conservatives have been looking forward for generations,” Bradford Richardson reports for The Washington Times. “The White House expects to immediately hit the ground running once Trump makes his 9 p.m. announcement on Monday, a time he selected for maximum TV exposure as anticipation grows around the pick,” Christopher Cadelago reports for Politico.

Yvonne Abraham addresses Senator Susan Collins, Republican of Maine, in an op-ed for Boston Globe, calling this “only the moment that might define your entire career” and urging her “to protect us from whoever does get the nod” from overturning Roe v. Wade, if confirmed. At The National Law Journal, Leon Friedman contends that even if the nominee is confirmed, “that doesn’t mean progressives are powerless against such rollbacks” to abortion rights, LGBT rights and affirmative action.

J.J. McCullough of National Review argues that a “more rightward Supreme Court will yield many good things, yet political enthusiasm for outcomes should not supersede all other concerns. Supreme Court reform remains a worthy cause because it will help rein in an institution prone by design to imperial overreach.” Ezra Klein of Vox also writes about the need for reform, reasoning that the “Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic.”

Constitution Daily marks the 150th anniversary of the 14th Amendment’s ratification by looking “at 10 historic Supreme Court cases about due process and equal protection under the law.” At Take Care, David Gans writes that the “legacy of this Amendment, its purpose, and its continuing, urgent relevance show exactly how high the stakes for this nominee and the future of the Supreme Court.” At Politico, Sherrilyn Ifill contends that in this anniversary year, “anyone whose record does not show a demonstrated commitment to the Constitution’s core guarantees of equality and liberty for all should be soundly defeated.”

At Appellate Advocacy Blog, Kent Streseman starts a series of posts on “judicial undoing: the circumstances, process, and advocacy of overruling” precedent. For Reason, Jonathan H. Adler presents data suggesting that the “stark departure from stare decisis seen this past June was something of a departure for the Roberts Court — at least as we have come to know it thus far. Under Chief Justice Roberts, the Court has largely maintained the status quo.”

At ImmigrationProf Blog, Kevin Johnson looks at Justice Anthony Kennedy’s immigration legacy. In an op-ed for The Hill, Bridget C.E. Dooling looks more closely at Kennedy’s concurrence in Pereira v. Sessions, a recent case involving procedures for removal proceedings for nonpermanent residents, in which, she argues, Kennedy “took a broad and aggressive swipe at a doctrine at the core of how our government works.”

Briefly:

  • At Verdict, Celestine McConville analyses the court’s decision this June in Trump v. Hawaii, which rejected a challenge to the Trump administration’s September 2017 proclamation restricting entry into the United States by nationals of eight countries; she writes that “[t]o support its Establishment Clause analysis, the Court relied on core equal protection precedent and, in the process, seems to have announced a new equal protection rule regarding when the presence of government animus will invalidate government action.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Monday round-up

Monday round-upThis evening President Donald Trump is expected to announce his nominee to succeed Justice Anthony Kennedy on the Supreme Court. Robert Costa and Robert Barnes of The Washington Post report that Trump said yesterday he was “close” to a final decision; Maggie Haberman, Adam Liptak and Michael Schmidt of The New York Times report that […]

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Monday round-up

This evening President Donald Trump is expected to announce his nominee to succeed Justice Anthony Kennedy on the Supreme Court. Robert Costa and Robert Barnes of The Washington Post report that Trump said yesterday he was “close” to a final decision; Maggie Haberman, Adam Liptak and Michael Schmidt of The New York Times report that “he might need to extend the process well into Monday.”

When he does make the announcement, Trump – who “has warned his associates against leaking his next Supreme Court pick in a bid to ratchet up the intrigue” – “wants a repeat of his reality show reveal” from last year, which he sees “as one of the high-water marks of his presidency,” reports Andrew Restuccia for Politico. At Associated Press, Jessica Gresko reveals the secret machinations used by past presidents to keep their nominees secret.

Maggie Haberman and Jonathan Martin of The New York Times report that Senate Majority Leader Mitch McConnell of Kentucky told Trump that Judges Raymond Kethledge and Thomas Hardiman “presented the fewest obvious obstacles to being confirmed.” John Bowden compiles this and other statements, regarding whom “top conservatives and allies of the president want to see Trump pick for his next nominee,” for The Hill. For Politico, Christopher Cadelago, Eliana Johnson and Josh Gerstein report that Kethledge “is getting a behind-the-scenes push portraying him as the consensus choice of conservatives”; commentator Hugh Hewitt called him “Gorsuch 2.0,” reports Niv Elis for The Hill. In The Washington Post, Emma Brown reports that Hardiman “holds a more expansive view of the Second Amendment than the Supreme Court has articulated to date,” according to “scholars and advocates on both sides of the gun debate.” For this blog, Amy Howe profiles Kethledge and Hardiman.

As for other possible nominees, Jordain Carney of The Hill reports that Judge Amy Coney Barrett “has emerged as the favorite candidate for social conservatives”; in a second story at The Hill, Carney reports that Judge Brett Kavanaugh “is facing pushback from social conservatives who say he’s too moderate.” In an op-ed for the National Review, Justin Walker contends that Kavanaugh “has been a steadfast and fearless supporter of religious liberty for decades.” At The Narrowest Grounds, Asher Steinberg looks at Kavanaugh’s dissent in Garza v. Hargan, the case of a 17-year-old undocumented teenager who wanted – and ultimately had – an abortion. Mark Landler and Matt Apuzzo of The New York Times report that Kavanaugh “once argued that President Bill Clinton could be impeached for lying to his staff and misleading the public, a broad definition of obstruction of justice that would be damaging if applied to President Trump in the Russia investigation.”

Mark Landler and Maggie Haberman of The New York Times report that “all four of President Trump’s candidates for the Supreme Court are white, middle-aged federal appeals court judges with reliably conservative legal records.” Jeremy Kidd, in a new article posted at SSRN, “draws on recent scholarship on the ideology of law clerks hired by particular judges to create a new measure of ideology in order to be able to compare potential nominees with Supreme Court justices.” In a short video for The New York Times, Maea Lenei Buhre and David Botti address the possible nominees’ views on abortion; beyond abortion, Amy Goldstein of The Washington Post reports that “conservatives inside and outside the White House have embraced the broader issue of religious freedom as a central priority.” New Civil Liberties Alliance surveys six possible candidates, giving a slight edge to Kethledge over Kavanaugh.

NPR reports that Judge Amul Thapar “has dropped off President Trump’s list of candidates,” while Jordain Carney of The Hill reports that Thapar is “the candidate to watch” because of a “powerful ally in his corner” – McConnell. Johnny Sutton and Marty Jackley, in an op-ed for The Daily Caller, contend that Thapar, a former prosecutor, “stands out for those of us who have served in law enforcement.” At the Lexington Herald Leader, Bill Estep profiles Thapar.

Whomever Trump selects, “aides inside the West Wing feel excited about the Supreme Court pick, viewing it as a chance for Trump to score a victory,” reports Jordan Fabian of The Hill. Also for The Hill, Brett Samuels reports that Leonard Leo, an “adviser to President Trump on judicial issues,” said yesterday that “he believes Trump’s Supreme Court pick will be confirmed before November’s midterm elections.” In The Washington Post, Joel Achenbach looks into the roles Leo and Donald McGahn have played in Trump’s judicial-selection processes. Brett Samuels reports for The Hill that yesterday Senator Richard Blumenthal, Democrat of Connecticut, called it “extraordinary” that the president “outsourced his decision to the Federalist Society and the Heritage Foundation.”

Carl Huse of The New York Times reports that “Democratic senators running for re-election in Trump Country face an agonizing choice over President Trump’s coming Supreme Court nominee: Vote to confirm the pick and risk demoralizing Democratic voters ahead of the midterm elections, or stick with the party and possibly sacrifice their own seats — and any chance at a Democratic majority in 2019.” “Keeping them in the Democratic fold — in the face of withering pressure from a liberal base that expects nothing less — amounts to the biggest challenge of” New York Senator Chuck Schumer’s 18-month tenure as Democratic leader, reports Elana Schor for Politico. “Red-state Democrats are going to have a very hard decision, and I hope that every Republican will rally behind these picks because they’re all outstanding,” Senator Lindsey Graham, Republican of South Carolina, said yesterday, reports Max Greenwood for The Hill.

Additional coverage of the political situation comes from Burgess Everett of Politico, who reports that “the Supreme Court confirmation battle over Trump’s high court nominee will reverberate in Missouri more than any other Senate battleground this year.” Brett Samuels of The Hill reports that yesterday Senator Dick Durbin, Democrat of Illinois, “ripped” McConnell “for his handling of Supreme Court nominees, saying the Republican has used the court ‘to play to his political advantage.’”

Katelyn Burns of Rewire.News reports that liberal organizations have “unveiled the ‘personal liberty standard,’” “pushing for senators to reject any Court nominee who would overturn Roe v. Wade and criminalize abortion care in the United States.” Senator Susan Collins, Republican of Maine, has said she would reject candidates who don’t respect precedent, but the claim faces skepticism from at least two commentators. Richard Chen contends in the Portland Press Herald that “if the eventual nominee ends up disappointing her and her constituents, she should not be allowed to invoke precedent as an excuse when it was clear from the outset that she had the power and every reason to take a stronger stand.” Brianne Gorod argues in the Bangor Daily News that “the sheer number of times last term that [Justice Neil Gorsuch] voted to overrule precedents or aggressively called them into question belies his promises that he always starts with a ‘heavy, heavy presumption in favor of precedent.’”

Alexander Bolton of The Hill reports that “Democrats say the prospect that the Senate will confirm a Trump nominee who could overturn the Roe v. Wade decision legalizing abortion will bring an army of Democrats to the polls — to the detriment of Republicans, particularly in the House.” In an op-ed for The Washington Post, Gary Abernathy addresses fellow opponents of abortion: “Even if Roe v. Wade is soon overturned, pro-lifers shouldn’t celebrate too much. Abortion will still be in demand, because hearts haven’t yet been changed.” Max Boot has a different message for conservatives in an op-ed for The Washington Post: “Tolerating [Trump’s] reign of error would not be worth it even if he filled every seat on the Supreme Court with Antonin Scalia clones.”

In an op-ed at The Hill, Ginny Ehrlich argues that “it is essential that we consider the impact that the next Supreme Court Justice could have on women’s access to birth control.” In an op-ed at The Washington Post, Nancy Northup contends that “[y]ou can have either the president’s promise about overturning Roe or the Constitution’s promise of a realm of personal liberty. You can’t have both.” A contrasting op-ed at The Hill by James Gagliano suggests that “Trump’s imprimatur on the Supreme Court will have a lasting impact on our nation that has nothing to do with Roe, and everything to do with racially divisive issues like reparations.” At The Nation, David Cole writes that “[i]f President Trump names another rigidly right-wing justice, the Court risks becoming an outlier, far more conservative than the country at large.” In a podcast with the American Civil Liberties Union, Cole “considers the court’s very uncertain future.”

Briefly:

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Friday round-up

Friday round-upAs the Monday deadline President Donald Trump has set for announcing his replacement for retiring Supreme Court Justice Anthony Kennedy approaches, Robert Costa and Seung Min Kim report for The Washington Post that “Trump’s deliberations over a Supreme Court nominee now center on three candidates culled from his shortlist: federal judges Brett M. Kavanaugh, Raymond […]

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Friday round-up

As the Monday deadline President Donald Trump has set for announcing his replacement for retiring Supreme Court Justice Anthony Kennedy approaches, Robert Costa and Seung Min Kim report for The Washington Post that “Trump’s deliberations over a Supreme Court nominee now center on three candidates culled from his shortlist: federal judges Brett M. Kavanaugh, Raymond Kethledge and Amy Coney Barrett.” At NPR, Nina Totenberg names Kavanaugh and Barrett as the two finalists, and reports that “a quintessentially Washingtonian fight has erupted between [their] supporters.”

Eliana Johnson reports at Politico that among the reported front-runners, “[m]uch of the jockeying has centered on D.C. Circuit Court Judge Brett Kavanaugh.” An anonymous contributor to The Federalist finds a “troubling pattern” of “errors” by Kavanaugh “in religious liberty cases,” concluding that “Kavanaugh poses too big of a risk of disappointing on religious freedom to be placed on the nation’s highest court.” But at Politico, Matthew Nussbaum notes that the betting markets are favoring Kavanaugh. For The Washington Post, Beth Reinhard reports that Barrett “has argued that justices should not be bound by court precedent in deciding whether to overturn landmark decisions that they deem out of step with the Constitution.” At The National Law Journal (subscription or registration required), Marcia Coyle and Tony Mauro offer “some ‘out of the box’ insights” into Kethledge, including that the judge “has been a strong supporter of Second Amendment rights.”

At National Review, Lillian Beview observes that another reported frontrunner, Judge Amul Thapar, with whom she has co-taught a class about judicial philosophy, “has a great deal in common with Justice Thomas.” In an op-ed for the Washington Examiner, Ilya Shapiro explains why Thapar deserves serious consideration. Abigail Simon looks at four of the frontrunners for Time. For The Washington Post, Aaron Blake lists the pros and cons of six shortlisters. At The Weekly Standard, Ryan Owens and Christopher Crewson discuss their recent research showing that “the American people tend to support nominees who espouse ‘Original Intent,’ which we defined as judges who ‘look to the intent of the drafters and ratifiers of the Constitution to reach conclusions about its meaning.’”

Axios’ Mike Allen predicts that Trump’s pick will be “more about personality than pedigree.” At Politico, Annie Karni and Eliana Johnson report that the “process of filling a second Supreme Court opening [is] play[ing] out like a political campaign, with attention to the whole package, including a potential nominee’s appearance as well as the look and feel of his or her family.” At The Hill, Jourdain Carney reports that “[s]enators are griping that the looming nomination … will prevent them from being able to focus on legislation, as lawmakers dig in for a drawn-out rhetorical battle to confirm” Kennedy’s replacement.

For The New York Times, Carl Hulse observes that “[t]he coming showdown over replacing … Kennedy … should only add to the perception of the court as a platform for a defining struggle between Republicans and Democrats.” At Politico Magazine, David Greenberg puts the partisan wrangling in historical context, noting that “[i]t’s hard to recall now, but for most of the past century almost nobody would admit to voting for or against a nominee because of his or her partisan affiliation.”

Looking at the court after Kennedy, Oliver Roeder at FiveThirtyEight points out that liberals shouldn’t place too much hope in the presumed new “median voter,” noting that “[w]hile the statistical metrics show Roberts taking a relatively moderate position, he has very rarely voted with the liberals when it mattered.” At Take Care, Leah Litman maintains that “there’s no question the modified Court will overturn Roe; the only question is how it will do so.” But in an op-ed for NBC News, Danny Cavallos argues that “[c]ontrary to what many commentators and Democrats are saying, Roe v. Wade is probably not ‘doomed.’” NPR features an interview with election-law expert Richard Hasen “about how retiring Supreme Court Justice Anthony Kennedy’s successor may affect voting rights.” At Politico, Josh Gerstein reports that a “pile of pending lawsuits over Donald Trump’s personal and business conduct could put his nominee to the Supreme Court in an awkward position: deciding whether to cast potentially pivotal votes on legal matters of keen importance to the president.”

Constitution Daily’s We the People podcast looks at Kennedy’s legacy. In an op-ed for Politico Magazine, Rahm Emanuel refutes the “[c]onventional wisdom hold[ing] that Justice Anthony Kennedy was a moderate whose rulings hewed down the center of the fairway with the centrist wisdom of a modern-day King Solomon.”

At Take Care, Nikolas Bowie observes that Justice Samuel Alito’s opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court held that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, contains a “recyclable sentence” that “could serve as the basis for undermining an enormous number of priorities that have nothing to do with labor.” At The Nation, Moshe Marvit writes, “[S]cratch the surface of the Janus case and what fast becomes clear is that it, like so much else in the right-to-work realm, did not begin with a worker but rather with a wealthy anti-union businessman.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the respondents in this case.]

Briefly:

  • For The Economist, Steven Mazie explains why “the framers entrust[ed] judges[, including Supreme Court justices,] with lifetime appointments, when every other democracy in the world imposes term limits, a mandatory retirement age or both.”
  • For The Washington Post, Jessica Contrera looks at Kristen Waggoner, the public face of Alliance Defending Freedom, “an Arizona-based Christian conservative legal nonprofit” “fighting for the right of Christians to openly express their faith — and winning.”
  • In the latest episode of Rewire.News’ Boom! Lawyered podcast, Jessica Mason Pieklo and Imani Gandy “sift through the wreckage of the Court’s decisions” this term.
  • In an op-ed for Forbes, Cory Andrews weighs in on National Institute of Family and Life Advocates v. Becerra, in which the court held that a California’s statute that requires crisis pregnancy centers to make disclosures, including about the availability of abortions, likely violates the First Amendment, observing that the opinion lacks “any acknowledgment, much less discussion, of the Court’s longstanding exception to strict-scrutiny review for commercial speech.”
  • Also at Take Care, Lina Khan criticizes the majority’s “clums[]y” analysis in Ohio v. American Express Co., “which establishes a special rule for analyzing the conduct of companies that operate in ‘two-sided transaction platforms,’ significantly raising the burden that plaintiffs must meet at the very earliest stage of litigation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the petitioners in this case.]
  • At Understanding the ADA, William Goren notes that the court’s opinion in South Dakota v. Wayfair, which opened the door for states to collect sales tax on all internet purchases, “suggest[s] that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.]

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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