- How to read last year’s Garland precedent? [David Post, Jonathan Adler]
- Gorsuch “consistently applied established First Amendment protections” [Adam Liptak, New York Times quoting Gregg Leslie of Reporters Committee for Freedom of the Press]
- We’ve earlier linked Cato podcasts on the nomination with Ilya Shapiro and Andrew Grossman and now here’s a somewhat more skeptical one featuring Ilya Somin;
- On product liability [Eric Wolff, Perkins Coie]
- California Federation of Teachers, explaining its opposition to the nomination, dismisses his constitutionalism as devotion to a document “drafted to protect the interests of white slave owners” (via Amy Alkon);
- “Follow the law, as judges are supposed to do, and you’ll get tarred as a supporter of criminals” when Nancy Pelosi et al. go low: [Eugene Volokh on gun cases U.S. v. Games-Perez and U.S. v. Reese]
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.
Judge Neil Gorsuch’s first call after being nominated was to Judge Merrick Garland, “out of respect.”
If there is a relationship of esteem between the two, it may have something of a history. In 2002, as a Washington litigator before his elevation to the Tenth Circuit, Gorsuch wrote a piece deploring how Senators had stalled the nominations to the D.C. Circuit of Garland and another nominee who was to become well-known:
…some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton’s solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving “hot-button” issues.
As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing — and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today’s confirmation process.
You mean getting to a floor vote so that sensitive vacancies can be filled isn’t these senators’ top priority after all? Sen. Chuck Schumer and allies are holding up two presidential nominations to the Securities and Exchange Commission, those of Democrat Lisa Fairfax and Republican Hester Peirce, demanding that the nominees commit to supporting a scheme to force shareholder-held companies to disclose their political involvements, the better for adversaries to pressure them or retaliate. It flies in the face of the idea that the appropriate frame of mind for commissioners approaching the rulemaking process is to keep an open mind rather than promise to vote one way or the other [Stephen Bainbridge, Broc Romanek/Corporate Counsel, Marc Hodak] “The SEC is now down to just three members, two less than its full complement, after two left the agency late last year. If the SEC remains with only three members for a prolonged period, it could be difficult for Chairman Mary Jo White to advance her agenda in what is likely her final year at the markets regulator.” [Andrew Ackerman, WSJ] More: WSJ letters via Prof. Bainbridge; Washington Post editorial.
- Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
- George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
- Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
- Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
- OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
- Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]
In addition to the links yesterday on the nomination of D.C. Circuit Chief Judge Merrick Garland to the vacancy on the Supreme Court, here’s Ilya Somin: “No one has better explained the justification for senatorial consideration of judicial philosophy than then-Senator Obama in his 2006 speech justifying his opposition to the nomination of Justice Alito (which Obama had previously tried to prevent from even coming to a vote, by using the filibuster)” While there is good reason for Republicans to table the Garland nomination for now, Somin writes, they should keep in mind that Garland is “preferable to what we might well get in the likely event of a Hillary Clinton victory” — and also that “it would be irresponsible to leave the door open for a Trump nomination.”
And more from the other Ilya, Ilya Shapiro, on the nominee in a CNN roundtable:
From my own perspective, Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.
More (edited): Sorry, email-blast progressives: the Senate has no constitutional duty to vote on a Supreme Court nominee [Michael Ramsey constitutional arguments]. On the other hand, Vikram Amar criticizes the Senate not on the untenable constitutional argument but because, he says, the no-hearings-no-votes stance goes beyond a prudent or appropriate political response to the Democrats’ earlier acts of nomination obstruction.
The leadership of the U.S. Senate has announced that it will not be holding hearings or votes on a nominee for the Supreme Court vacancy opened by the death of Antonin Scalia, and it has the votes to make this stick. All of which makes it a little odd that some publications have been filling acres of news space with biographies of long-shot hopefuls destined not to be picked for a vacancy that is itself likely not to be filled, at least not anytime soon. (Of course, it does advance the White House’s political strategy to maximize press coverage in this way.) Jonathan Adler points out, as have others, that the Senate’s advise-and-consent role does not generate any constitutional duty to consider a nominee, however one weighs the prudential and political considerations for doing so. And Adler also points out that the Senate majority’s “No Hearings, No Votes” position makes it even more inappropriate than usual for some conservatives to start launching smear campaigns against possible liberal names, as by “tarring potential nominees because they once represented unsavory clients” — aside from the fact that (as both conservatives and defenders of the law should know) such smear campaigns are not good for the soul.
More/update: President Obama has now nominated D.C. Circuit chief judge Merrick Garland. Commentary by my colleague Ilya Shapiro (“Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, but he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.”); Stuart Taylor (“I predict that he will be confirmed — after the election, assuming Hillary wins, and after the lame-duck R’s have about 3 seconds to consider their options.”), Jonathan Adler (also: “His record on the D.C. Circuit is one of deference to the government across a wide range of issues,”), Trevor Burrus, and Jim Copland.
It isn’t especially onerous for the Supreme Court to operate with eight Justices, as we know from earlier vacancies and recusals, note Josh Blackman and Ilya Shapiro [Wall Street Journal] History of election-year SCOTUS nominations and confirmations doesn’t prove what some liberals imagine it does [Roger Pilon; Jonathan Adler and follow-up]
Plus: Wouldn’t it be nice if every Supreme Court nominee were asked to name something he or she thinks is a good idea yet unconstitutional, or, conversely a bad idea that is constitutional? [Trevor Burrus]
- John Lott Jr. argues in new book that judicial-nominations system is broken; responses from Michael Teter, Clint Bolick, John McGinnis [Cato Unbound]
- “Weaponized IRS” meets Administration’s political needs at cost of future public trust [Glenn Reynolds, USA Today]
- “For some time, however, cause lawyers have moved in and out of government, thus complicating the traditional picture of lawyer-state opposition.” [Douglas Nejaime, “Cause Lawyers Inside the State,” SSRN via Legal Ethics Forum]
- Gun rights: public opinion has changed over the decades in a big way [Bryan Caplan, Steven Greenhut]
- “Mostyn Law Firm donates $1 million to help Wendy Davis in Texas governor’s race” [Washington Examiner, New Republic] Plaintiff’s bar supporting GOP primary challenges to Texas Supreme Court incumbents Phil Johnson, Jeff Brown, and Chief Justice Nathan Hecht [TLR] More: Legal NewsLine (Mark Lanier Law Firm largely funding challengers)
- Nassau’s Kathleen Rice: “Anti-Corruption Panel Co-Chair Receives Big Donations From Sheldon Silver’s Law Firm” [Ken Lovett, NYDN]
- Rule of thumb: a political party leans libertarian in proportion to the number of years since it last held the White House [Orin Kerr]
- Dept. of Justice indicts a prominent Obama critic on campaign finance charge [Ira Stoll; more above]