At the Associated Press, Julie Pace reports that “President Donald Trump could announce his pick for the Supreme Court as early as Monday,” and that although “Trump originally said the announcement would come on Thursday,” “word of a possible earlier announcement came as the White House dealt with fallout from Trump’s ban on refugees.” At Buzzfeed, Chris Geidner reports that Trump’s “decision to proceed with his expansive executive order restricting immigration at the end of his first week in office has turned into a massive legal battleground that will shape the consideration of any Supreme Court nominee,” and that with “the attention already on the courts and their role, … the nomination, rather than changing the conversation, could crystallize and focus the debate.”

At Fox News, William Mears reports that Trump’s list has narrowed to two candidates, Judge Neil Gorsuch and Judge Thomas Hardiman, and that although “the president has privately kept one person in mind for some time,” “supporters of several candidates continue to solicit White House officials, knowing last minute change-of-hearts can and do happen.” In The Washington Post, Robert Barnes reports that “those who know Gorsuch and have studied his decade of solidly conservative opinions on the U.S. Court of Appeals for the 10th Circuit say he more resembles the man he would replace — the late Justice Antonin Scalia — than the more moderate Kennedy.”  Also in The Washington Post, Kimberly Kindy reports that Judge William Pryor, another name on the shortlist, “is perhaps the most polarizing figure of the potential nominees, with some groups thinking he leans too far right while other groups view him as leaning too far left.” In The National Law Journal (subscription or registration required), Tony Mauro and Marcia Coyle report that Gorsuch, Hardiman and Pryor all “appear to qualify as millionaires, according to their most recent financial disclosure forms.”

At Just Security, Steve Vladeck observes that Hardiman joined an appeals court ruling holding that “non-citizens physically but not lawfully present on U.S. soil are not protected by the Constitution’s Suspension Clause–meaning that they have no constitutional right to judicial review, even if their detention and/or removal from the country is clearly unlawful,” and argues that this  position “should provoke questions from the Senate Judiciary Committee for Judge Hardiman (or any nominee, for that matter) about the proper role of the courts in supervising detention within the United States–and in standing up to Executive Branch actions that, at least based on precedent, certainly seem to be unconstitutional.” In an op-ed in The Washington Post, Ronald Klain maintains that “to win the real battle for the future of the high court, the nomination and the messaging around it should be aimed at the one man who truly matters: Anthony Kennedy,” and that if “Trump picks one of the two most widely speculated choices — federal appeals court judges William Pryor or Neil Gorsuch — that will likely encourage Kennedy to stay in place,” because “both Pryor and Gorsuch reject Kennedy’s most important views on constitutional principles — particularly his dedication to a core concept of the ‘dignity of free persons.’”

Briefly:

  • At Burnham & Gorokhov’s Legal Blog, Ziran Zhang analyzes the oral argument in Lynch v. Dimaya, a void-for-vagueness challenge to an immigrant-removal statute.
  • At his eponymous blog, Ross Runkel looks at the amicus brief filed by the U.S. government in three consolidated cases that ask “whether an employee benefit plan must be initially established by a church in order to qualify for ERISA’s church plan exemption, or whether it is enough that the plan is maintained by a church or by a church-controlled or church-affiliated organization”; he observes that “’We’ve always done it that way’” seems to be the main argument advanced by the” brief.

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Posted in Round-up

Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jan. 30, 2017, 7:11 AM), http://www.scotusblog.com/2017/01/monday-round-up-334/