The nomination of Judge Brett Kavanaugh to the Supreme Court remains front and center in the news. For The Washington Post, Amy Brittain reports that financial disclosures and information provided by the White House indicate that “Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets.” For The New York Times, Katie Benner reports that “Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the government documents of Judge Brett M. Kavanaugh,” and that the request “was an unusual insertion of politics into federal law enforcement.” For The Washington Post’s Fact Checker column, Salvador Rizzo examines speculation about “a past business relationship between Donald Trump and one of Kennedy’s sons” that some have suggested may have influenced the justice’s recent rulings or his decision to retire, giving the allegations four Pinocchios.

At CNN, Joan Biskupic analyzes Kavanaugh’s record, concluding that “he stands to be more than just a reliable vote for the right” and that “[h]e could powerfully influence the country’s legal agenda for decades.” For The Washington Post, Robert Barnes and Ann Marimow report that “Kavanaugh has only one major abortion ruling in his 12 years on the federal bench, but that forceful opinion will define the coming debate on what his elevation to the Supreme Court would mean for a woman’s constitutional right to the procedure.” At Bloomberg, Sahil Kapur and Greg Stohr report that “senators and activists on both sides of the debate” say “Kavanaugh’s views on gun rights may push the court to expand Second Amendment protections.”

Also at Bloomberg, Jennifer Dlouhy and others report that “Kavanaugh could add a powerful new voice on the Supreme Court to restrain what government agencies can do, ushering in a new era of tougher scrutiny of federal regulations loathed by businesses.” At Bloomberg Law, Madison Alder reports that Kavanaugh “would likely continue Justice Anthony Kennedy ‘s legacy of siding with the conservative justices in labor, employment, and benefits cases, though he may diverge from his predecessor’s views on gay bias.” Casey Quinlan argues at ThinkProgress that “Brett Kavanaugh’s confirmation to the Supreme Court will be bad news for workers’ rights.”

At Education Week’s School Law Blog, Mark Walsh reports that Kavanaugh “has argued for allowing students to lead prayers at high school events and supported the inclusion of religious schools in voucher programs.” At Reason’s Hit & Run blog, Damon Root flags Kavanaugh’s “possible shortcomings on the Fourth Amendment front.” At People for the American Way, Devon Schmidt argues that “affordable health care for all will be at serious risk” if Kavanaugh joins the Supreme Court. At the Brennan Center, Ian Vandewalker suggests that a 2011 opinion casts doubt on “whether [Kavanaugh] believes that the Constitution blocks America’s elected leaders from protecting our democracy from foreign attacks.”

Kavanaugh’s record on environmental issues is the focus for Sofie Werthan at Slate, who cites his multiple rulings “against Environmental Protection Agency attempts to regulate air pollution and address climate change.” At E&E News, Amanda Reilly reports that Kavanaugh’s writings in environmental cases reflect his “emphasis on making sure agencies review both the benefits and costs of regulations.” Also at E&E News, Reilly explores Kavanaugh’s views on Chevron deference, the doctrine that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes, noting that although “Kavanaugh hasn’t called the Chevron doctrine entirely into question or questioned whether the law world would be better without it,” “he could side with other conservatives on the court in limiting its application.”

At Politico, Darren Samuelsohn reports that “Kavanaugh’s … writings and comments warning about the dangers of … sprawling probes [of a president] — including that sitting presidents should not be subjected to criminal investigations — … are already being weaponized by Democrats.” Additional coverage comes from Josh Gerstein, also at Politico. For The New York Times, Sheryl Gay Stolberg reports that “Democrats who once saw health care and abortion as their best lines of attack against … Kavanaugh … are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.” But in an op-ed for Bloomberg View, Noah Feldman argues that “[p]roperly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.” At Lawfare, Benjamin Wittes agrees, maintaining that Kavanaugh’s extra-judicial writings about presidential investigations, highlighting as a “salient fact … that Kavanaugh has articulated a vision of a legitimate and appropriate investigation under our constitutional scheme and that it looks so much like the Mueller structure—and that he believes that the president of the United States has no common-law privileges before such an investigation.”

In an analysis for The Washington Post, Elliott Ash and Daniel Chen maintain that “[a]ccording to a deep, data-driven survey of his writings from the bench, [Kavanaugh] is an uncommonly partisan judge, even compared to other federal appeals court judges.” In an op-ed for The New York Times, Leah Litman worries that the reconstituted court “will rarely act as a shield for groups — such as undocumented women — who are victimized by the political process.” At Rewire.News, Jessica Mason Pieklo argues that “[t]here is no liberal case for Brett Kavanaugh.” In a Washington Post op-ed, E.J. Dionne rejects the idea that “because Kavanaugh is qualified, well-educated, intelligent and likable, senators should fall in line behind him,” noting that “[i]n blocking [Judge Merrick] Garland, conservatives made clear that personal qualities have nothing to do with confirmation battles.”

At Politico Magazine, John Harris and Matthew Nussbaum remark that “Kavanaugh’s ascension would further ratify a trend that has been building for a generation: a court of careerists,” whose “members occupy an increasingly narrow strand of American life.” In an empirical analysis for The New York Times, Denise Lu and others confirm that Kavanaugh followed a familiar path to the nomination.

For the Associated Press, Lisa Lerer and Steve Peoples point out that “Democrats [have] struggled to unify behind a clear and coherent message to combat the nomination.” At The Nation, Joan Walsh looks at some lines of attack Democrats might pursue. In an op-ed for Roll Call, Walter Shapiro suggests that the Kavanaugh pick might not be as safe as it seems. At The American Prospect, Simon Lazarus explains why and how Democrats should “initially frame the debate” over “the nominee’s absolutist vision of presidential power.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “Yale Law School professor Akhil Amar said Tuesday he will speak in favor of the U.S. Supreme Court nominee before the Senate Judiciary Committee if asked to do so.”

For The New York Times, Jonathan Martin and Alexander Burns report that “the long-awaited debate over replacing Justice Anthony M. Kennedy’s swing vote is more likely to intensify the existing forces of the 2018 midterm elections rather than turn the campaign on its head.”

Briefly:

  • At the Cato Institute’s Cato at Liberty blog, Jay Schweikert remarks that what may be “the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court” urges the justices to “reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.”
  • At the Daily Journal (subscription required), David Boyle looks at National Institute of Family and Life Advocates v. Becerra, in which the court held that a California statute that requires crisis pregnancy centers to make certain disclosures likely violates the First Amendment, suggesting that the state may be able “to resurrect the unlicensed-disclosure requirement in the future.”
  • At American Thinker, Deborah La Fetra maintains that the “Gift Clause[s]” in state constitutions would prevent states from enacting “workarounds” to the court’s recent decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “John Malcolm joins Elizabeth Slattery to talk about attending the huge SCOTUS announcement at the White House.”

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Posted in Round-up

Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jul. 12, 2018, 8:06 AM), http://www.scotusblog.com/2018/07/thursday-round-up-433/