- Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update]
- Federalist Society video on stare decisis with Roger Pilon, and related by Pilon on constitutional stare decisis;
- The high court decides relatively few admiralty/maritime cases but has heard more than one of them this term; one artist’s whimsical illustration [@CourtArtist on Twitter]
- In writing opinions, “the justices should be careful about naming politicians, especially when they name in order to make a point about the political process.” [Josh Blackman, The Atlantic]
- A constitutional right to religious exemptions from otherwise applicable laws? Eugene Volokh still backs Scalia’s logic on that, but it’s looking as if Court’s conservative wing may not. Cleanup in the Lemon aisle: Michael McConnell on Maryland Peace Cross case [Volokh Conspiracy]
- New resource: database of all Supreme Court nomination hearing transcripts that are yet available (with Kavanaugh’s still to come) [Shoshana Weissmann and Anthony Marcum, R Street]
Are the federal courts really becoming a lost cause for liberal Democrats? My new piece for the New York Post, complete with detailed map, examines claims that Trump administration nominations are transforming the lower federal courts, with results that, as the cliche goes, will last for generations. But “the nature of the courts in our system is not that one side wins any permanent victories on judicial selection. And that’s a good thing.” Over the eight years of the Obama presidency, of the 13 federal appeals courts, the number with a majority of Republican appointees fell from 10 to 4; even though Trump has had a higher number than usual of holdover vacancies to fill, that number for the moment remains 4.
- “Battle over stolen diamond-studded golden eagle takes flight as insurer fights order to pay up” [Jason Proctor, CBC]
- Fentanyl test strips save lives. Feds oppose their distribution [Jeffrey Singer, Cato]
- D.C. Circuit judicial nominee Neomi Rao (full disclosure: an old friend) “comes under fire for undergraduate writings on sexual assault — though her views from 25 years ago are consistent with today’s statutes and rulings.” [K.C. Johnson, City Journal]
- One reason the costs of rent control policies get understated: it’s hard to control and account for declines in the quality of apartment services [Richard McKenzie and Dwight Lee, Cato Regulation magazine]
- Federalist Society National Lawyers Convention video panel on antitrust law transparency with Deb Garza, Hon. Frank Easterbrook (“Always remember that sunlight is full of ultraviolet radiation”), Eric Grannon (incentive problems of “amnesty plus” program; “moral turpitude” provisions, more on which), moderated by Hon. John Nalbandian;
- Big reason military and health care procurement is so pricey: “scads of less specific programs out there [are] insanely cheaper and more functional, but those programs cannot justify the costs of becoming compliant” [from Tyler Cowen comments]
- Antitrust legislation once targeted the unstoppable rise of chain stores A&P and Sears, both now bankrupt [my new Cato post, quoting Joe Nocera, Bloomberg (“The next time you hear somebody say that the dominance of Walmart or Amazon or Facebook can never end, think about Sears. It can — and it probably will.”)]
- When you wish upon a suit: visitor grabs Disney cast member and screams at her after she asks him to move out of parade route, later pleads no contest to disorderly conduct, now wants $15,000 [Gabrielle Russon, Orlando Sentinel]
- Tomorrow (Thurs.) at noon Eastern, watch a Cato panel on “Coercive Plea Bargaining” with Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the NACDL, and Somil Trivedi of the ACLU, moderated by Cato’s Clark Neily. Could you resist taking a plea bargain if faced with a false accusation? [Marc John Randazza, ABA Journal]
- “I am a Democrat. But this may be the dumbest thing I have seen…. the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote.” [Howard Wasserman on suit by Sen. Jeff Merkley (D-Ore.) asking court to, among other things, order delay of Senate vote on Kavanaugh nomination]
- An ideological screen for CLE? Following demands from tribal attorneys, Minnesota bar authorities order shelving of continuing legal education class on Indian Child Welfare Act developments taught by attorney Mark Fiddler, who often handles ICWA cases on side adverse to tribes [Timothy Sandefur]
- Left-leaning Florida Supreme Court nixes plan to let incumbent Gov. Rick Scott fill vacancies, entrenching its leftward lean for a while at least depending on outcome of governor’s race [Spectrum News 9]
“Democrats paid a political cost for decades after F.D.R. tried it in the 1930s. They probably would again.” [Julian E. Zelizer, New York Times]
Some writings on the left applauding or backing the idea: Ian Samuel, Guardian; E.J. Dionne, Washington Post; Mehdi Hasan/The Intercept; Jed Shugerman; Michael Klarman, Take Care Blog. Charlie Savage at the New York Times rounds up more pro and con. And as Josh Blackman noted in April 2017, similar ideas were already floating around then; see also Mark Tushnet later last year.
Critics of the idea: Megan McArdle (recalling “Impeach Earl Warren” billboards), Charles Cooke (“fringe fantasy”), Adam White, Ilya Somin. A constitutional amendment to prevent packing? [Jim Lindgren, Ilya Somin]
Commentary: Politico symposium with Ilya Shapiro, Ilya Somin, and others; David French (pro) and Benjamin Wittes (con) views of confirmation; point-counterpoint on Kavanaugh’s final hearing testimony from David Post (critical of nominee), Eugene Volokh response, David Post rejoinder. Those intent on defeating Kavanaugh pushed too far and he pushed back, galvanizing conservatives, writes John Podhoretz [Commentary] And a completely different view of judicial temperament [Noah Feldman on cantankerous Court personalities]
Motivated reasoning? Yes, a lot of that going around [Ilya Somin on “the extremely high correlation between what people think of the allegations and whether they believe Kavanaugh should be confirmed aside from them.”] “On the Fallibility of Memory and the Importance of Evidence” [Tyler Watkins, Quillette] “It’s important to listen to those who come forward—and also to those accused.” [Emily Yoffe, The Atlantic]
P.S. And not to forget that the bulk of Kavanaugh’s confirmation hearing discussed issues of jurisprudence; Randy Barnett sums up discussions of originalism, colloquy with Senator Kennedy, unenumerated rights and more, on stare decisis and following precedents, and on the Fourth Amendment.
In Supreme Court nominee Brett Kavanaugh’s opening statement at his hearing Tuesday, he praised Merrick Garland, with whom he serves on the D.C. Circuit, as “our superb chief judge.”
If you were surprised by that, you shouldn’t have been. When President Obama nominated Garland to the high court, Judge Kavanaugh described his colleague as “supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court … He has been a role model to me in how he goes about his job.”
In fact, it has been reported in at least one place that one reason Kavanaugh was left off Trump’s initial list of SCOTUS nominees was that he had been so vocal and public in praising Garland’s nomination.
Now, it would be understandable if neither side in the partisan confirmation wars chose to emphasize this bit of background to the story. Republican strategists might not be keen on reminding listeners of what their party did with Garland’s nomination, and might also worry about eroding enthusiasm for Kavanaugh among certain elements of their base. Democratic strategists, meanwhile, might see the episode as one in which the present nominee comes off as not-a-monster, and, well, you can’t have that.
The lesson, if there is one, might be that the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time. [cross-posted from Cato at Liberty]
Tuesday’s Senate star, Sen. Ben Sasse (R-Neb.), in his opening statement at the Brett Kavanaugh confirmation hearing:
Michael McConnell, the esteemed Stanford law professor, writing in The Hill:
There is plenty of controversy over the nomination of Brett Kavanaugh to the Supreme Court, but almost none of it is about him. Even detractors appear to have abandoned any claim that he lacks the intellect, experience, or temperament to be an outstanding justice. Critics have combed through 12 years of his opinions on the District of Columbia Circuit, second only to the Supreme Court in the high profile cases it decides, without coming across a single opinion that is half baked or unreasonable…..
Temperamentally and philosophically, Kavanaugh more closely resembles the moderate John Roberts than the fire-breathing monster some of his detractors are attempting to portray. It would not surprise me, although I could be overly optimistic here, that with Kavanaugh on the Supreme Court and Justices Breyer and Kagan showing signs of willingness to break with their more leftward brethren or sistren, the new Supreme Court could have a serious principled middle for the first time in decades. That would be therapeutic for our obsessively polarized country….
Some of the hostility of Democrats to any nomination of a Republican president, no matter how qualified, is due to backlash against the Republican Senate’s refusal to consider the nomination of Judge Garland, an exemplary nominee, to the Supreme Court in 2016. Of course, Republicans thought their actions toward Garland were a justifiable backlash to Democratic refusals to consider Republican judicial nominees in election years in the past. Whatever the merits of those arguments, they should not be allowed to poison the well of Supreme Court nominations forever, or the nation will pay a stiff price….
Whatever any of us might think of Trump, he was elected president by a vote of the people in accordance with constitutional processes. Unless and until actual charges are brought and proven against him, the people of the United States are entitled to the presidency they voted for. In my opinion, it would be highly improper for any senator to vote against an exemplary nominee to the Supreme Court in the anticipation that the president may at some time in the future be impeached, charged, or convicted of a crime. Unless and until that happens, Trump is entitled to nominate a new justice to the Supreme Court, and we should all be pleased and relieved that the nominee is a person of the character and ability of Brett Kavanaugh.
Proposals for just a little bit of Court-packing — just a balancing! — are no more stable than the more blatant kind. “There is no magic bullet that will enable either Democrats or Republicans [to] stealthily pack the Supreme Court without risking retaliation in kind.” [Ilya Somin on the Ian Ayres / John Fabian Witt plan; related, Howard Wasserman]