Posts Tagged ‘judicial nominations’

Judge Brett Kavanaugh picked for Supreme Court

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.

Awaiting a Supreme Court nominee

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.

January 3 roundup

  • California attorney known for suing bars over “ladies’ nights” sues comedian Iliza Shlesinger over “Girls Night In” show [Gene Maddaus, Variety]
  • “Jury Rejects Damages for Victims of SWAT Raid Based on Wet Tea Leaves Cops Said Was Pot” [Jacob Sullum, Radley Balko, earlier here, here, and here]
  • Before calling Star-Spangled Banner “ode to slavery,” newly inaugurated St. Paul mayor should have read my NR piece [Tad Vezner, Pioneer Press]
  • From Prof. Stephen Presser, ideas on reforming legal education [Law and Liberty]
  • Why administration’s appellate nominations tend to be all-of-a-piece while district court nominations are more a mixed bag [Jonathan Adler]
  • Some policy questions about last month’s Amtrak 501 wreck outside Seattle [Randal O’Toole, Cato and more]

Federal judges and trial experience

Ken White sheds light on the current flap about a nominee for U.S. District Court who hasn’t argued a motion and had trouble at a hearing identifying some reasonably well-known elements of current federal civil procedure. As Ken points out, those gaps are in some ways much more serious in an aspirant for the trial bench than they might be for an appellate judge.

Supreme Court and constitutional law roundup

“What Kind of a Judge is Neil Gorsuch?”

New paper from Ilya Shapiro and Frank Garrison for the fledgling Cato Legal Policy Bulletin series, which launched in January with Thomas Berry’s paper “The Illegal Tenure of Civil Rights Head Vanita Gupta.” From the executive summary:

…President Donald Trump picked Gorsuch after promising the American people that he would appoint someone in the mold of the late Justice Antonin Scalia, who is best known for his devotion to the original meaning of the Constitution, his textualist approach to interpreting legal statutes, and his commitment to ordered liberty through constitutional structure. This policy bulletin weighs Judge Gorsuch’s record with respect to those ideals, ultimately asking whether a Justice Gorsuch would uphold the Constitution’s protection of individual liberty. A survey of Gorsuch opinions in cases involving criminal procedure, constitutional structure, and individual rights reveals an adherence to the rule of law. Moreover, Gorsuch has questioned legal precedent on the separation of powers—especially when it comes to the administrative state—in a way that shows a commitment to the judicial duty to check the other branches of government.

Other links on the nominee: A study of cases finds Neil Gorsuch in the middle of the pack among Tenth Circuit judges on employment discrimination and immigration [Kevin Cope and Joshua Fischman, Five Thirty-Eight] And the editors at the New York Daily News, one of the most outspokenly anti-Trump newspapers, say the Senate should confirm him:

In exchange after exchange with members of the Judiciary Committee, Gorsuch revealed himself to be not the caricature conjured up by Democrats, but a rigorous judicial practitioner with respect for the legislative process and for precedent….

Sen. Dianne Feinstein challenged Gorsuch on whether he “would give a worker a fair shot” — asking him to cite cases in which he stood up for the little guy, affirming his or her rights over that of a wealthy employer.

Gorsuch, off the top of his head, named 10….

Democrats are doing the nation a disservice by planning to filibuster his nomination….They should stand down.

Gorsuch nomination roundup

More on the nominee, starting with a Washington Post profile:

  • 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]

“So-called”

“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.

Neil Gorsuch on the Senate judicial confirmation process

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.

A hold-up of SEC nominees

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.