Editor's Note :

Editor's Note :

The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Transcripts of previous live blogs are available at this link.
Our full coverage of the nomination is available at this link.

Friday round-up

By on Mar 24, 2017 at 7:41 am

Yesterday the Senate Judiciary Committee wrapped up its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. A round-up of early coverage of and commentary on the proceedings, including the possibility of a filibuster by Democratic senators, appeared in this blog. Additional coverage comes from Nina Totenberg at NPR, Ken Jost at Jost on Justice, Tierney Sneed at Talking Points Memo, Tony Mauro in The National Law Journal (registration or subscription required), and Mark Walsh in Education Week. Commentary comes from Kimberly Strassel in The Wall Street Journal, the editorial board of The New York Times, We the People (podcast), Dean Obeidallah at The Daily Beast, Sarah Posner in The Washington Post, and Tony Francois at the Pacific Legal Foundation’s Liberty Blog.

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Petition of the day

By on Mar 23, 2017 at 11:23 pm

The petition of the day is:


Issue: Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders’ activities within school zones imposes “punishment” in violation of the ex post facto clause.


Today the Senate Judiciary Committee conducted the fourth and final day of its hearing on Gorsuch nomination, which featured testimony of witnesses for and against the nomination. Coverage of the hearing comes from Matt Flegenheimer and others in The New York Times, Seung Min Kim and Josh Gerstein at Politico, Rebecca Wilhelm at Bloomberg BNA, who focuses on Gorsuch’s views on Chevron deference, Benjamin Wermund at Politico, and Lisa Soronen at the National Conference of State Legislatures blog, who writes about what Gorsuch had to say about issues affecting state and local governments, Commentary comes from Andrew Cohen in Esquire, Ilya Shapiro in the Washington Examiner, Tara Helfman in Commentary, Lori Ringhand and Paul Collins at The Washington Post’s Monkey Cage, who argue that all justices, including Gorsuch, should be limited to 18-year terms,

Senate Minority Leader Chuck Schumer announced today that he will oppose Gorsuch’s nomination and will urge his Democratic colleagues to do the same, opening the door to a filibuster. Amy Howe reports on Schumer’s statement for this blog. Additional coverage comes from Kevin Freking and Mark Sherman at the Associated Press, Lawrence Hurley and Andrew Chung at Reuters, Ariane de Vogue at CNN, Charlie Savage, Matt Flegenheimer and Adam Liptak in The New York Times, Richard Wolf at USA Today, Elana Schor at Politico, and Ed Keefe, Robert Barnes and Ann Marimow in The Washington Post. Commentary on the prospect of a filibuster comes from James Downie in The Washington Post.

The Senate Judiciary Committee concluded its confirmation hearing for Judge Neil Gorsuch this afternoon. After undergoing two days of questioning, the nominee himself was not present at today’s proceedings, which featured a variety of witnesses. Unsurprisingly, Gorsuch has secured the vote of at least one senator, Sen. Chuck Grassley (R-Iowa), the chairman of the committee, who spoke briefly with the press after adjourning the hearing. Motioning to the witness table, Grassley said he did not understand how anyone could oppose Gorsuch’s nomination after “the performance of this guy for 22 hours.” Grassley further dismissed indications by Senate Minority Leader Chuck Schumer that Schumer would support a filibuster, which Amy Howe covered this morning. “We aren’t going to talk about a filibuster, or even worry about it,” Grassley continued, calling the threat a “smokescreen.” He encouraged a return to “normalcy,” which he described as “dispassionate regard to making a decision on people for the Supreme Court.” Grassley said earlier this week that he hopes to hold a committee vote on the nomination next Monday.

We live-blogged the fourth day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. The transcript is available at this link.

In its conference of March 24, 2017, the court will consider petitions involving issues such as whether Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5; whether the proper test for determining non-statutory insider status requires bankruptcy courts to conduct an “arm’s length” analysis or to apply a “functional equivalent” test; and whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution’s decision to seek the death penalty.

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On Wednesday, the court heard oral argument in Water Splash v. Menon, a case about the meaning of the Hague Service Convention. In particular, the dispute concerns Article 10 of the Convention, which has three parts. First, Article 10(a) preserves individuals’ “freedom to send” judicial documents abroad by “postal channels” when the receiving country does not object. In contrast, Articles 10(b) and 10(c) reference freedom to “effect service” across borders via judicial officers. The case turns on whether the freedom to “send” judicial documents encompasses service of a complaint by mail, or if – as Menon argued successfully in the Texas 14th Court of Appeals – that provision refers only to sending documents for other purposes. If Article 10(a) does encompass service by mail, then Water Splash’s complaint against Menon was likely properly served; if it doesn’t, then Menon was within her rights to ignore the complaint, as she did.

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The confirmation hearing for Judge Neil Gorsuch continues today, as senators hear from a variety of witnesses who are testifying for and against Gorsuch’s nomination to fill the vacancy left by the death of Justice Antonin Scalia. However, this morning’s biggest news on the Gorsuch nomination came from outside the hearing room. In an announcement made over Twitter this morning, Senate Minority Leader Chuck Schumer announced that he “cannot support Judge Neil Gorsuch’s nomination to the Supreme Court.” That announcement was hardly a surprise. And because Republicans currently hold 52 of the 100 seats in the U.S. Senate, they wouldn’t need Schumer’s vote to confirm Gorsuch on a straight up-or-down vote. However, Schumer also seemed to suggest that he would support a filibuster of the Gorsuch nomination. Under the current Senate rules, if the Democrats were to threaten a filibuster, Republicans would need at least 60 votes to force a vote on the nomination – a process known as “cloture.” Schumer warned that “Judge Gorsuch’s nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation.” Schumer’s vote on cloture, he indicated, will be “no.” There was no indication yet, though, that 40 senators would vote against cloture to sustain a filibuster. A filibuster would put the ball in the Republicans’ court, possibly leading them to eliminate the filibuster for Supreme Court nominees, which would allow Gorsuch to be confirmed by a simple majority. Democrats made a similar change, known as invoking the “nuclear option,” to confirm lower-court nominees in 2013. That move drew strong condemnation at the time from Sen. Mitch McConnell, now the Senate Majority Leader, who would be left with a difficult choice.

It’s not often that a unanimous Supreme Court decision on special education makes national headlines. But that’s exactly what happened yesterday, when the justices issued their ruling in Endrew F. v. Douglas County School District. The issue in the case is undoubtedly important to many American families: What kind of “educational benefit” does the Individuals with Disabilities Education Act require public schools to provide to students with disabilities? The Supreme Court unanimously rejected the lower court’s ruling that schools only need to provide a non-trivial benefit.

That’s not why the case drew so much attention, however. When the Supreme Court handed down its ruling yesterday, shortly after 10 a.m., the question presented by Endrew’s case had already been a hot topic of discussion just down the street from the court, at the confirmation hearing for Judge Neil Gorsuch, President Donald Trump’s nominee to fill the vacancy created by the death of Justice Antonin Scalia last year. In 2008, Gorsuch had ruled against the family of an autistic child, explaining that the IDEA requires educational benefits that are “merely … ‘more than de minimis.’”

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Yesterday’s argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

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