Thursday round-up
on Oct 20, 2016 at 7:33 am
The Supreme Court was the first topic at last night’s third and final presidential debate. Coverage comes from Michele Gorman at Newsweek, who reports that the candidates “discussed the U.S. Supreme Court, guns and abortion … , the most time spent on these divisive issues during their three forums in the general election season.” Additional coverage comes from Jess Bravin of The Wall Street Journal, who reports that the “candidates, in a sometimes somber tone that didn’t last through the debate, played to their bases in responses that focused on abortion, gun rights and the direction they would try to take the court when filling openings.” At Forbes, Michael Bobelian observes that Richard Nixon was the first presidential candidate to send an “explicit message to voters that in electing him they were selecting like-minded jurists,” and that in “an election that has broken with precedent in countless ways, at least when it comes to their discussions of the Court, Clinton and Trump have followed Nixon’s formula, now well into its fourth decade.”
At Constitution Daily, Lyle Denniston examines the implications for the court of Sen. John McCain’s recent indication that Senate Republicans might block all Supreme Court nominations if Hillary Clinton wins next month, noting that if the three oldest justices were to resign, creating a total of four vacancies, and no replacements were confirmed, “the court would have been quite thoroughly – and intentionally — politicized, and its image would be that of a Republican-rigged tribunal, with the specific aim of generating rulings acceptable to the GOP policy agenda.” In The Salt Lake Tribune, Thomas Burr reports that “Sens. Orrin Hatch and Mike Lee say they will vet whomever the next president — be that Donald Trump or Hillary Clinton — appoints to the Supreme Court and not seek to automatically block a Clinton nominee” as a Sen. McCain suggested. At The Huffington Post, Cristian Farias reports on a speech by Justice Sonia Sotomayor this week in which “she focused on how having a fully functioning Supreme Court is key to making sure the law treats everyone across the country equally.”
At PrawfsBlawg, Lisa Manheim predicts that if the Democrats win both the presidency and a majority in the Senate, “the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster … rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation.” At his Election Law Blog, Rick Hasen agrees that the “argument about the filibuster is essentially over” and that therefore “Senate control means control of the Supreme Court” “for up to a generation.” The editorial board of the Los Angeles Times also assesses the likelihood that a Democratic Senate majority would eliminate the filibuster for Supreme Court nominations, stating that the “Republicans’ obstructionism is wrong; it also could backfire by giving the next president an even freer hand in shaping the Supreme Court.” Taking a different tack, Michael Paulsen argues in The National Review that “Congress should pass a law reducing the Court’s membership to six Justices rather than nine — a return to its original size — and in so doing both take the question of Supreme Court appointments off the table for this election cycle and also thereby reduce the capability of the Court to engage in judicial activism harmful to the Constitution.”
Briefly:
- In The Washington Post, Robert Barnes observes that the first oral argument of October Term 2016, which featured five male justices, three female justices, and two female advocates, brought something unusual to the Supreme Court chamber: “gender equality”; he notes such gender parity is especially rare because “the percentage of female advocates with résumé-making appearances before the justices is surprisingly low.”
- At NPR, Nina Totenberg reports that, as a result of the Supreme Court’s 2013 decision in Shelby County v. Holder, this “year’s presidential election will be the first in a half-century without the significant presence of federal observers at polling places.”
- At Justia’s Verdict, Michael Dorf discusses Justice Ruth Bader Ginsburg’s disapproval, which she later reconsidered, of NFL quarterback Colin Kaepernick’s refusal to stand for the national anthem; he observes that “even if Ginsburg’s criticism of Kaepernick was within the bounds of professional norms, that does not mean it was appropriate, … as she herself now recognizes.”
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