Editor's Note :

Editor's Note :

We expect orders from the February 17 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday, February 22.
On Tuesday the court hears oral argument in Hernández v. Mesa. Amy Howe has our preview.
On Tuesday the court also hears oral argument in McLane Co. v. EEOC. Charlotte Garden has our preview.

Gorsuch submits Senate questionnaire

By on Feb 15, 2017 at 12:57 pm

Judge Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, was first contacted about a possible nomination to the court on December 2, 2016 – nearly two months before he was actually nominated. That information came over the weekend, when Gorsuch submitted his responses to a questionnaire from the Senate Judiciary Committee.

Gorsuch’s initial conversation about the potential nomination was with Leonard Leo, the executive vice president of the Federalist Society, who advised Trump during the selection process. Over a month later, on January 5, 2017, Gorsuch met with Donald McGahn, currently the White House counsel and then part of the Trump transition team, as well as Vice President Mike Pence, presidential advisor Steve Bannon, Mark Paoletta (now the counsel to the vice president), and White House chief of staff Reince Preibus. Nine days later, Gorsuch met with Trump himself. On January 27, McGahn told Gorsuch that Trump planned to nominate him to fill the vacancy on the Supreme Court – which Trump himself confirmed a few days later, in a call on January 30.

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Kindred Nursing Centers Limited Partnership v. Clark so closely resembles several of the court’s recent cases that you’d have to be a pretty close reader if you didn’t wonder whether they’d already decided this one. Suffice it to say that the court has granted review to decide if the Federal Arbitration Act pre-empts a decision of a state supreme court holding an arbitration agreement unenforceable based on the lower court’s doubt that individuals benefit from pre-dispute arbitration agreements. If you think I’m recycling my posts – no, this is not DIRECTV v. Imburgia or Nitro-Lift Technologies v. Howard or even Marmet Health Care v. Brown. This really is a different case. Well, maybe not all that different.

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The specific context here is a nursing home in Kentucky, operated by the petitioner, Kindred Nursing Centers. Before entering the home, residents sign powers of attorney designating individuals like the respondents, Janis Clark and Beverly Wellner, as their attorneys-in-fact. The powers of attorney are standard forms that grant broad general authority over the residents’ future business affairs, including power to sign all “contracts”; they do not, though, specifically mention arbitration. Relying on those powers of attorney, the agents signed standard pre-dispute arbitration agreements on behalf of the residents.

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Wednesday round-up

By on Feb 15, 2017 at 7:01 am

At Roll Call, Todd Ruger reports on Judge Neil Gorsuch’s Senate Judiciary Committee questionnaire, noting that “some portions” were “apparently copied and pasted from a similar questionnaire from a decade ago, when the Senate confirmed him on a voice vote to the U.S. Court of Appeals for the 10th Circuit.” In The New York Times, Matt Flegenheimer reports that the Gorsuch confirmation process poses a “dilemma” for Senate Democrats, who are being forced “into disparate factions over a nominee with copious credentials but deeply conservative roots.” In The Hill, Jordain Carney reports that Senate Majority Leader Mitch McConnell has stated that Democratic senators “should apply the ‘Ginsburg standard,’” derived from Justice Ruth Bader Ginsburg’s statement during her confirmation hearings that she would provide “’no forecast, no hints’” of her positions in specific cases, to the Gorsuch nomination, arguing that “Democrats like Sen. Charles Schumer (D-N.Y.) are setting a higher bar for Gorsuch.” In The Washington Times, Alex Swoyer reports that Schumer “is poised to be the biggest hurdle between Judge Neil Gorsuch and the Supreme Court.”

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Petition of the day

By on Feb 14, 2017 at 11:23 pm

The petition of the day is:

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Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding, contrary to the considered view of the United States Copyright Office and in conflict with the New York state appellate courts, that when Congress enacted the Digital Millennium Copyright Act and added Section 512 to the Copyright Act, it implicitly limited and preempted the state-law rights and remedies that Section 301(c) says “shall not be annulled or limited.”

Portrait of Sergio Adrian Hernandez Guereca, 15 year - old who was killed yesterday by a Border Patrol agent pictured at his graduation from the secundaria. PHOTO COURTESTY OF THE HERNANDEZ GUERECA FAMILY

Sergio Hernández at his elementary school graduation (Courtesy of the family of Sergio Hernández)

In any context, the case of Hernández v. Mesa would be an important one: The parents of Sergio Hernández, a Mexican teen shot by a U.S. Border Patrol agent while standing on Mexican soil, are seeking to sue the agent responsible for their son’s death in U.S. courts. But with the United States’ relationship with Mexico already strained in the wake of the Trump administration’s announcement that it plans to build a wall along the U.S.-Mexico border – and have Mexico reimburse the U.S. for the cost of construction – the lawsuit filed by Jesus Hernández and his wife, Maria Guadalupe Guereca Bentacour, takes on even more significance. Supporting Mesa, the federal government insists that allowing suits like this one could “significantly disrupt the ability of the political branches to respond to foreign situations involving” the U.S.’s national interest, while the Mexican government – supporting the parents – suggests that shutting the lawsuit down could harm U.S.-Mexico relations.

Just as the United States and Mexico disagree about how this case should be resolved, Hernández’s parents and Mesa tell divergent stories about what actually happened on June 7, 2010. Hernández’s parents contend that the 15-year-old was fooling around with his friends in the culvert between El Paso, Texas, and Juarez, Mexico. The group was, they say, “playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down.” As Hernández was running away from the fence back toward Juarez, on the Mexican side of the border, Jesus Mesa fired at him from approximately 60 feet away, on the U.S. side of the border. Mesa’s shot struck Hernández in the head, and he died on the spot.

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Even in a term in which the eight-member court seems to be going out of its way to avoid high-profile disputes, there is a remarkable degree of consensus among the various players involved in McLane Co. v. Equal Employment Opportunity Commission. The issue in this case is whether the courts of appeals should review de novo, rather than only for abuse of discretion, district court orders to quash or enforce EEOC subpoenas. The employer, the U.S. solicitor general and two sets of amici all agree that the answer is “no,” as do nearly all circuit courts that have addressed the question. Even the panel of the U.S. Court of Appeals for the 9th Circuit that rendered the decision under review was “unclear” as to the reason for its outlier rule. This leaves court-appointed amicus curiae Stephen Kinnaird to make the case for de novo review. This he does ably – though the inevitable question is whether the existing consensus will be cemented by an 8-0 opinion adopting the abuse-of-discretion standard.

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Tuesday round-up

By on Feb 14, 2017 at 6:45 am

At Buzzfeed, Zoe Tillman reports that “Supreme Court nominee Neil Gorsuch submitted his formal questionnaire to the Senate Judiciary Committee, answering questions about his past decisions and providing new details about the events leading up to his nomination.” In The Wall Street Journal, Beth Reinhard reports that “Gorsuch has scaled back a description of his pro bono work at Harvard Law School after questions arose about the extent of his involvement with two volunteer criminal-justice programs.”

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Petition of the day

By on Feb 13, 2017 at 11:23 pm

The petition of the day is:

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Issue: Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause.

In its conference of February 17, 2017, the court will consider petitions involving issues such as whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction; whether it is a violation of the 14th Amendment guarantee of equal protection for a state to deviate arbitrarily from its voluntarily adopted execution safeguards; and whether, in a means-of-execution suit, known and available alternatives are limited to those already provided in a statute an inmate is challenging. Continue reading »

 
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Monday round-up

By on Feb 13, 2017 at 7:23 am

In The New York Times, Sheryl Gay Stolberg reports that although Judge Neil Gorsuch’s “record on gay rights is thin,” and it “suggests a deference to religious freedom and a strong skepticism toward using the courts to find a new constitutional basis for L.G.B.T. rights,” “interviews with his friends – both gay and straight – and legal experts across the spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole.” Constitution Daily features a podcast discussing the Gorsuch nomination. At his eponymous blog, Ernie Haffner discusses Gorsuch’s “attacks” on the traditional framework used to evaluate employment discrimination cases, arguing that “even if Gorsuch believes that the McDonnell Douglas framework does not adequately track the ultimate issue of discrimination, that problem can be addressed without doing away with the framework altogether.”

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