- 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]
Brett Kavanaugh is a stellar pick, whose name would have been at or near the top of any list of outstanding Republican nominees for the high court. As a longtime judge on the D.C. Circuit he has authored nearly 300 opinions, many in big cases hinging on constitutional issues such as the allocation of powers. Like Chief Justice John Roberts, whom in many ways he resembles, he has unusually close ties already with his eight new colleagues: his decisions on the appeals court have fared exceptionally well on review by the higher court and are often cited as authority there, and he acts as a “feeder judge” sending clerks to Justices across the Court’s ideological spectrum. His qualities of temperament and character are widely respected on all sides, and he is known for advancing diversity among the influential ranks of Supreme Court clerks by recruiting law graduates from many backgrounds.
Yale lawprof Akhil Amar is out with “A Liberal’s Case for Brett Kavanaugh” in the NYT. He writes:
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.
Jonathan H. Adler on Kavanaugh’s extensive record striking down federal agency action (at least 75 times, according to the White House handout), including several major cases in which his rulings were upheld by the high court on appeal:
Judge Kavanaugh takes administrative law very seriously, and he makes agencies do their homework. As much as any other judge on the D.C. Circuit, he makes sure that agencies act within the scope of the authority they have been delegated by Congress, that they follow the procedures required by the APA, and that they adequately justify their decisions. This has often led to decisions invalidating agency action — both in challenges brought by supporters and opponents of regulation — but Judge Kavanaugh is not an anti-regulatory zealot. Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair.
Plus: Christopher Scalia Twitter thread on why the “theory that Trump picked him because he’d protect the president from indictment” is “nonsense”; Tony Mauro; Ken at Popehat on Kavanaugh’s (good) free-speech record. And Andrew Grossman on the Cato Daily Podcast praises Kavanaugh’s record on the D.C. Circuit, especially his willingness to hold federal agencies to the law rather than allow variance in the name of ambiguity or deference.
The White House has indicated that President Trump will announce a nominee for the Supreme Court vacancy Monday evening. Jonathan Adler breaks it all down at Volokh Conspiracy as does David Lat in a series of posts (sample: feeder judge Brett Kavanaugh “sends clerks to almost all the justices, on both sides of the aisle.”) Other resources while we wait:
- Factually rich cheat sheet with links to writings and opinions of judges thought to be on the list [TIFIS]
- The New Civil Liberties Alliance has evaluated the likely picks on the basis of their posture toward the powers of the administrative state. Chris Walker at the Yale Journal on Regulation examines related issues of their views on administrative law. And the Institute for Free Speech on records on free expression;
- Judge Raymond Kethledge’s concurrence in the Cathedral Buffet case, with observations about government scrutiny of religious beliefs and the First Amendment’s Free Exercise Clause, is getting some attention. I wrote it up at the time here and at Cato at Liberty;
- Hmm. “[Amy Coney] Barrett defended the Supreme Court’s current approach in cases dealing with economic regulation, in which the scales are tipped in favor of lawmakers via the highly permissive standard of judicial review known as the rational-basis test.” [Damon Root, Reason]
- Ilya Shapiro has some kind things to say about another Sixth Circuit judge on many shortlists, Amul Thapar. What got my attention as a confirmed legal formalist is that Judge Thapar threw a case out of court for being one cent short of federal jurisdiction. As I argued way back in The Litigation Explosion, bright-line rules are generally a good thing and jurisdiction, especially, should not be subject to rules of close-enough. This recent Michigan Law Review piece by Judge Thapar and Benjamin Beaton, reviewing a new book by Judge Richard Posner has more on the virtues of formalism and is eminently worth reading;
- Highlights of Kevin Cope’s ideological scoring of the judges for the Washington Post’s Monkey Cage: likely picks other than Thapar are clustered closely together, all less conservative than Justice Alito’s Third Circuit record when he was picked; Thapar gets a more moderate rating but his tenure as an appeals judge has been very brief. Note also that Merrick Garland, much promoted as centrist two years back, scores well to the left of the pre-appointment records of Ruth Ginsburg and Sonia Sotomayor.
- You can listen to me briefly discussing the possibilities on the Hartford-area Ray Dunaway show here.