President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court continues to garner coverage. Ashley Parker and Robert Costa of The Washington Post report on moments leading up the decision, while Niall Stanage of The Hill lists “five big takeaways from the announcement.” Commentary comes from Carolyn Shapiro at Fortune, who criticizes Trump’s remarks about judges setting aside personal opinions “to do what the law and the Constitution require,” as well as similar comments by Kavanaugh, for being “misleading because they suggest that there are always neutral and objectively correct answers to the hardest legal questions.” Additional commentary comes from David A. Graham at The Atlantic.

At Slate, Lili Loofbourow examines the process leading up to the president’s announcement, concluding that the president’s “point of stoking Nielsen ratings and delivering Kavanaugh was to get as many people to witness what he badly wanted them to: a normal conservative with respectable credentials and a pleasant family presented without vitriol or demagoguery.” In The New York Times, Adam Liptak reports on Kavanaugh’s positions on criminal investigations of sitting presidents and the status of Robert Mueller’s investigation. Additional coverage comes from Salvador Rizzo of The Washington Post. At Slate, Dahlia Lithwick looks into the political consequences of Kavanaugh’s nomination for the midterm elections, suggesting that the “midterms, effective this week, will instead be about whether Trump’s proposed new justice thinks the president can pardon himself. As Republican get-out-the-vote messages go, it’s not a strong one.” Additional commentary comes from Michael A. Cohen at Boston Globe.

“Democrats went on the attack Tuesday against President Trump’s new pick for the Supreme Court,” reports Alexander Bolton of The Hill, “but acknowledged they are unlikely to win the war.” Senate Minority Leader Chuck Schumer of New York has declared that the nominee “has an obligation—a serious and solemn obligation—to share their personal views” on a range of contentious legal issues,” Russell Berman reports in The Atlantic. In an op-ed for Boston Globe, Jeff Jacoby also argues that Kavanaugh should be forthcoming with senators – as, he says, Justice Anthony Kennedy was. David Von Drehle, in an op-ed for The Washington Post, assesses the political situation facing Schumer and suggests that his “tide may be going out.” Political Charge compiles five reasons to oppose Kavanaugh’s nomination and urges its readers to tell senators not to confirm him. Microsoft News provides polling data concerning political interests surrounding this vacancy and the last one.

As for Republicans, Liz Goodwin of The Boston Globe reports that a “detailed review of [Maine Senator Susan] Collins’s voting record reveals that she is anything but a maverick when it comes to the courts, consistently supporting nominees put forth by Republican presidents.” Scott Lemieux of NBC News reports that the nomination “demonstrates the binding power of the conservative legal movement that has pushed the federal courts to the right for decades, while also drawing Trump ever closer to the Republican Party.” Commentary comes from Elaina Plott for The Atlantic, suggesting that many find Trump’s nominations “worth any deeper, institutional threats that this administration may pose.”

Ian MacDougall of ProPublica compiles what he describes as “some of the best reporting on Kavanaugh.” Ellen M. Gilmer of E&E News reports that Kavanaugh “has handled more energy and environmental cases than any other short-listers for Kennedy’s seat,” involving everything from federal climate regulations to gas exports and the Dakota Access pipeline. Other investigations into Kavanaugh’s past record and views comes from David Markus of SDFLA Blog on criminal justice, Elaine S. Povich and Alayna Alvarez of Stateline on states’ rights, and Amy Lee Rosen of Law 360 on tax law. Noting an amicus brief filed yesterday by the Pacific Legal Foundation relying on a Kavanaugh dissent, Oliver Dunford in a blog post writes that “the high Court has more than a few times adopted the reasoning from Judge Kavanaugh’s dissenting opinions—particularly in the area of Administrative Law.” With two posts at Reason, Jonathan Adler and Ilya Somin take more comprehensive looks. Boston Globe covers his background as a professor at Harvard Law School.

Commentary on the change Kavanaugh’s presence will bring to the court comes from Imani Gandy and Jessica Mason Pieklo on the Boom! Lawyered (podcast) and Andrew Cohen for Rolling Stone. Michael Bobelian of Forbes looks at consequences for the business community, with a review of the history of business interests at the court. At the same time, Richard Wolf of USA Today reports that “a comparison of Kavanaugh’s record on the U.S. Court of Appeals for the District of Columbia Circuit to Justice Anthony Kennedy’s record on the Supreme Court leaves the degree of change in doubt.”

Either way, Kavanaugh “may not have to wait too long for controversial cases if he is confirmed to the job, with disputes involving abortion, immigration, gay rights, voting rights and transgender troops possibly heading toward the justices soon,” report Lawrence Hurley and Andrew Chung for Reuters. Mark Joseph Stern of Slate contends that “there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.” Julie Rovner of Governing reports that many states are poised to ban abortion, if Roe v. Wade is overturned.

At Slate, Jordan Weissmann disputes Akhil Reed Amar’s op-ed in The New York Times, “A Liberal’s Case for Brett Kavanaugh,” in which Amar calls Kavanaugh’s nomination “Trump’s finest hour, his classiest move”; Weissmann contends that “in the post Merrick Garland era, in which nominations are clearly about pure power politics and little else, a piece like Amar’s at worst reeks of the amoral Ivy League clubbiness that still defines the upper reaches of the legal world and at best is simply naive.”

Alexia Elejalde-Ruiz of Governing reports that the court’s ruling in Janus v. American Federation of State, County and Municipal Employees, in which the court held that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, “could squeeze overall union revenue, limiting organized labor’s ability to champion a variety of progressive causes that affect private sector workplaces as well.” In an op-ed at Daily Journal, Deborah la Fetra contends that the “high court’s Janus decision is about state power, not unions.”

Briefly:

  • Following Lucia v. Securities and Exchange Commission, in which the court held that SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause, who have to be appointed by the president, a court or a department head, Trump has issued an executive order under which “[f]ederal administrative law judges will be hired directly by individual agencies, rather than from a central pool of candidates,” reports Eric Yoder of The Washington Post.

Posted in Round-up

Recommended Citation: Andrew Hamm, Wednesday round-up, SCOTUSblog (Jul. 11, 2018, 11:05 AM), http://www.scotusblog.com/2018/07/wednesday-round-up-430/