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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

Petitions of the week

By on Aug 17, 2018 at 11:26 am

This week we highlight cert petitions pending before the Supreme Court that address the scope of Title VII’s prohibition on discrimination “because of … sex” with regard to transgender individuals, the attachment of the Sixth Amendment right to counsel in the context of plea negotiations, and the constitutional consequences of waiving a state-law right to have a jury make an advisory sentencing recommendation in a capital case.

The petitions of the week are:

18-106

Issues: (1) Whether the Sixth Amendment right to counsel attaches when the prosecutor conducts plea negotiations before the filing of a formal charge; and (2) whether the Sixth Amendment right to counsel attaches when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court when the defendant has already been charged with the same offense in state court.

18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

18-113

Issue: Whether waiving a state-law right to have a jury make an advisory sentencing recommendation constitutes a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver.

Friday round-up

By on Aug 17, 2018 at 7:11 am

At CNN, Lauren Fox and others report that “Senate Democrats are threatening to sue for documents related to Supreme Court nominee Brett Kavanaugh’s record, the latest escalation in a partisan battle over the court.” Burgess Everett reports at Politico that “[t]he potential lawsuit would come right as Kavanaugh’s confirmation hearings begin in early September.” Additional coverage comes from Kevin Daley at The Daily Caller, who calls the threat “one of the few procedural weapons Democrats can use to slow progress on a Supreme Court confirmation some see as inevitable.” At The Hill, Jordain Carney reports that “[t]he National Archives is distancing itself from President George W. Bush’s legal team as both groups work to hand over hundreds of thousands of documents tied to … Kavanaugh.” In an op-ed for The Washington Times, Matt Mackowiack maintains that “[t]he record will show that Sen. Chuck Grassley, Iowa Republican and Senate Judiciary Committee chairman, is leading the most transparent confirmation process of all time.”

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Judge Kavanaugh on work law

By on Aug 16, 2018 at 12:06 pm

Charlotte Garden is an associate professor at Seattle University School of Law.

This post analyzes Judge Brett Kavanaugh’s most significant work-law opinions. Although several are already receiving attention and analysis – especially his dissent in a case that arose after a killer whale killed a trainer – Kavanaugh has drafted dozens of other opinions in labor and employment-discrimination cases. Overall, these opinions reflect that Kavanaugh tends to interpret narrowly the limits that work law places on employers, resulting in judicial and agency deference to employers’ decisions. For example, Kavanaugh has interpreted statutes or controlling Supreme Court cases in ways that exclude certain workers from coverage or bar certain types of claims. When he writes in cases in which he parts ways with his colleagues, it is often because he has a more employer-friendly view of the law than they do.

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Thursday round-up

By on Aug 16, 2018 at 7:00 am

For USA Today, Richard Wolf reports that “[f]or three eventful years of George W. Bush’s presidency – involving wars in Iraq and Afghanistan, Hurricane Katrina, battles over abortion and immigration, and two Supreme Court vacancies – Brett Kavanaugh held one of the most important jobs in the White House,” but “as the Senate considers Kavanaugh’s qualifications for the Supreme Court, his work as staff secretary – described by others who have held the job as the president’s inbox and outbox – remains a black hole.” For The Washington Post, Seung Min Kim reports that “[h]ow the Republican majority is handling Kavanaugh’s extensive records has infuriated Democrats,” noting that “what makes the fight for Kavanaugh’s records unusual is that the National Archives, which has played a central role for previous nominees in vetting their White House papers and sending them to the Senate, has effectively been sidelined.” In commentary at National Review, Ed Whelan explains why, “[o]n any sensible application of the cost-benefit analysis that always properly shapes the Senate’s demand for documents, demanding the staff secretary documents would be insane.” Thomas Jipping maintains in an op-ed at the Washington Examiner that “senators already have what [Senate Minority Leader Chuck] Schumer said they need, a complete record of the most relevant and revelatory material from Kavanaugh’s legal career.”

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Wednesday round-up

By on Aug 15, 2018 at 6:50 am

At CNN, Lauren Fox reports that “[t]wo red state Democrats are scheduled to meet [today] with President Donald Trump’s Supreme Court nominee, highly anticipated meetings that could set the tone for where some of the Senate’s most vulnerable Democrats land on appeals court Judge Brett Kavanaugh’s nomination.” According to Seung Min Kim for The Washington Post, “the White House is warning that time is running short for Democratic leaders to schedule sit-downs with the judge before his confirmation hearings next month.” Jordain Carney reports at The Hill that “[l]iberal activists are pressing Senate Minority Leader Charles Schumer (D-N.Y.) and other prominent members of the caucus to publicly and privately pressure the red-state Democrats to oppose Kavanaugh.” At Fox News, Chad Pergram reports that “Supreme Court nominee Brett Kavanaugh is getting help from an old Senate hand as he seeks to navigate the chamber ahead of his confirmation hearing — tapping into a long tradition of nominees using ‘sherpas’ to find their way.”

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Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

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Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

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Tuesday round-up

By on Aug 14, 2018 at 7:12 am

Court-watchers maintain their focus on records from Supreme Court nominee Brett Kavanaugh’s time working in the George W. Bush White House. For USA Today, Richard Wolf reports that documents from Kavanaugh’s two-year tenure in the White House counsel’s office reveal Kavanaugh’s “involvement in efforts by the Bush administration to get his nominees on to federal courts – efforts that Democrats successfully blocked in many cases during Bush’s first two years in office.” For The Washington Post, Stephanie McCrummen writes that the most recent batch of documents, released on Sunday, contains “no obvious bombshells about Kavanaugh.” Tony Mauro reports for The National Law Journal that the documents show “a heightened-alert atmosphere inside and outside the White House surrounding the speculation that Supreme Court vacancies would soon open up.” For The Hill, Jordain Carney reports that “[t]he National Archives is doubling down on its refusal to respond to Democratic requests for documents from” Kavanaugh’s three-year stint as White House staff secretary, informing Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, that “it is the agency’s policy to only respond to requests from a committee chair, all of whom are Republicans.”

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Rick Hasen joins us to talk about his new book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.”

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Monday round-up

By on Aug 13, 2018 at 7:17 am

On Friday afternoon, Senate Judiciary Committee Chairman Chuck Grassley announced that the committee’s hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy will begin on September 4 and last three to four days. Coverage comes from Elana Schor at Politico, Richard Wolf for USA Today, Seung Min Kim for The Washington Post, Lisa Mascaro and Mark Sherman for the Associated Press, Todd Ruger at Roll Call, and Manu Raju at CNN. At Vox, Li Zhou reports that “Grassley’s announcement has already prompted outcry from Democrats who argue that he’s expedited the process and set up a hearing before lawmakers have had time to properly review Kavanaugh’s lengthy paper trail.”

For The Washington Times, Steven Dinan reports that “[s]enators on Sunday released tens of thousands of pages of documents from Supreme Court nominee Judge Brett M. Kavanaugh’s time in the Bush White House, sending researchers scurrying as Washington prepares for his confirmation fight.” Lisa Mascaro and Mark Sherman report for the Associated Press that “[n]ewly released documents from Supreme Court nominee Brett Kavanaugh’s time on the Kenneth Starr team investigating Bill Clinton, [made public on Friday in response to a Freedom of Information Act request] reveal his resistance to issuing an indictment of a sitting president.” Additional coverage comes from Michael Shear for The New York Times. In an op-ed for The Hill, Thomas Jipping maintains that Kavanaugh’s judicial record, not records relating to his work for Starr or in the White House, is “most relevant to this nomination.”

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