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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

Do Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted by the Brennan Center for Justice gathered a group of experts to examine the public’s support for the Supreme Court in the face of frequent attacks.

In their contribution, Professors Michael Nelson and James Gibson surveyed a random sample of Americans to determine whether criticism erodes the Supreme Court’s legitimacy and Americans’ support of that institution. Their findings confirmed previous studies showing that the public’s support for the court is strong, and that it dips more when the court is criticized as politicized rather than for making errors of law. To their surprise, however, they found that the public’s perceptions are affected more by criticism voiced by law professors than criticism by the president of the United States.

In a responsive essay, Professor David Fontana cautions that Nelson and Gibson may have “created a false sense of security that the public deeply and durably believes in the Supreme Court.” He does not take issue with their findings that the public supports the court and values judicial independence in the abstract, or that critiques by legal elites can undermine the institution. But his own research shows that support would dissolve when the stakes are high, such as in the aftermath of a terrorist attack. And he points out that their study does not examine whether the president’s pointed attacks on the courts and on specific judges have taken a toll.

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Thursday round-up

By on Jul 5, 2018 at 7:15 am

Court-watchers did not take a holiday yesterday from the Supreme Court nomination drama. For the Associated Press, Catherine Lucey and others report that President Donald Trump has now spoken with seven candidates for Justice Anthony Kennedy’s soon-to-be-vacant seat and that “Vice President Mike Pence has met with some of the contenders” as well. For The Wall Street Journal, Peter Nicholas and Louise Radnofsky report that “[f]ollowing a brisk round of interviews Monday and Tuesday, the three front-runners at this late stage in the president’s search are all U.S. appeals court judges: Brett Kavanaugh of Maryland, of the D.C. Circuit; Raymond Kethledge of Michigan, of the Sixth Circuit; and Amy Coney Barrett of Indiana, of the Seventh Circuit.” For The Hill, Brett Samuels reports that Trump “on Tuesday night promised a ‘home run’ pick for his Supreme Court nominee after continuing interviews with potential candidates earlier in the day.” At Balkinization, Mark Tushnet questions the value of the presidential interview to the selection process.

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Credit: University of Notre Dame

In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, 2016. First on the new list – because it was in alphabetical order – was Amy Coney Barrett, a Notre Dame law professor (and former Scalia clerk) who had recently been confirmed to a seat on the U.S. Court of Appeals for the 7th Circuit. Barrett’s confirmation hearings had received considerable attention after Democrats on the Senate Judiciary Committee – most notably, Senator Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging. Feinstein’s criticism did not stop Barrett from being confirmed, and since then there has been speculation that it may have in fact strengthened her case to fill the seat that will be vacated by the retirement of Justice Anthony Kennedy. Continue reading »

Pratheepan Gulasekaram is a professor of law at Santa Clara University.

In his reflection on Justice Anthony Kennedy, Harvard Law School professor Jack Goldsmith suggests that three principles animated Kennedy’s landmark opinions: dignity, capacious liberty from government interference and a robust conception of judicial power. Judging from his opinions and votes in immigration cases, however, Kennedy was an unreliable adherent to those principles, oftentimes disregarding the dignity and due process claims of noncitizens, and pleading for a diminished judicial role in critical immigration matters. This legacy was cemented by Kennedy’s last writing as a justice of the Supreme Court in Trump v. Hawaii. There, his final concurrence admonished the president for disregarding constitutional limits, while still casting the critical fifth vote to leave in force a presidential directive that his concurrence hinted was designed to make good on a promise to ban Muslims from the country.

Justice Kennedy questions lawyer during arguments in Trump v. Hawaii (Art Lien)

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Petition of the day

By on Jul 3, 2018 at 6:30 pm

The petition of the day is:

17-1687

Issue: Whether the government may obtain convictions for bribery under the honest-services fraud statute, 18 U.S.C. § 1346, and the federal-programs bribery statute, 18 U.S.C. § 666, in the absence of jury instructions expressly requiring an intended quid pro quo exchange.

 
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With less than one week left until President Donald Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. Trump indicated the other day that he has narrowed down his initial list to five finalists, including two women. Although all the names on this whittled-down list are not known, a few judges are seen as frontrunners. Almost all lists of potential nominees include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, the judge whom Empirical SCOTUS identified in December as a likely nominee in the event of a vacancy. The other judge floating around many pundits’ predictions is Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit.

Even though the shortlist is not entirely clear, this post analyzes facets of five judges who are likely leading the way. These individuals include Kavanaugh and Barrett, along with Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit and Judges Amul Thapar and Raymond Kethledge from the U.S. Court of Appeals for the 6th Circuit. Kavanaugh and Kethledge both clerked for Justice Anthony Kennedy, as did the most recently confirmed justice — Justice Neil Gorsuch. If either becomes the next justice on the court, this would be the first time that any current or former Supreme Court justice had two former clerks later become justices. Of the remaining judges, Barrett clerked for Justice Antonin Scalia, Hardiman did not clerk and Thapar’s highest-level clerkship was for Judge Nathaniel Jones on the 6th Circuit.

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Past summer nomination timelines

By on Jul 3, 2018 at 12:56 pm

On Wednesday, June 27, Justice Anthony Kennedy announced his retirement from the Supreme Court, effective July 31. Two days later, President Donald Trump told reporters that he would nominate Kennedy’s replacement on July 9, which would give just 12 days from retirement to nomination.

This timing roughly matches past recent nominations that occurred mid-summer. President Ronald Reagan nominated Robert Bork to replace Justice Lewis Powell five days after Powell’s retirement on June 26, 1987. President George H.W. Bush nominated both David Souter and Clarence Thomas three days after the respective retirements by Justices William Brennan on July 20, 1990, and Thurgood Marshall on June 28, 1991. President George W. Bush nominated John Roberts to replace Justice Sandra Day O’Connor within three weeks of her retirement on July 1, 2005.

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When President Donald Trump selected his first Supreme Court nominee a year and a half ago, only one of the final four frontrunners had never served as a judge on a federal appeals court: Amul Thapar, then a district-court judge for the Eastern District of Kentucky and a favorite of Senate Majority Leader Mitch McConnell. Although he lacked federal appellate-court experience, usually a prerequisite for a Supreme Court justice, Thapar was one of four candidates, along with Thomas Hardiman, William Pryor and the eventual nominee, Neil Gorsuch, to be interviewed personally by the president. Thapar was not Trump’s pick for that job, but he quickly became the president’s first nominee to a federal court of appeals: the U.S. Court of Appeals for the 6th Circuit, which covers Ohio, Michigan, Kentucky and Tennessee. And now, with the retirement of Justice Anthony Kennedy, and after more than a year on the 6th Circuit, Thapar is once again reported to be on a presidential shortlist of Supreme Court nominees winnowed from the current group of 25 prospective candidates.

Amul Roger Thapar, who turned 49 in April, has lived most of his life in the Midwest. He was born in Troy, Michigan, to parents who immigrated from India, and he grew up in Toledo, Ohio. He attended Boston College and then the UC Berkeley School of Law, where he received his J.D. in 1994. He served as a law clerk to district court Judge C. Arthur Spiegel in Cincinnati, Ohio, from 1994-96 and then to Judge Nathaniel Jones on the 6th Circuit from 1996-97. After a brief stint in Washington, D.C., where he worked in private practice and as an assistant U.S. Attorney for the District of Columbia, Thapar moved back to Ohio in 2001. As an AUSA for the Southern District of Ohio in 2002, he prosecuted fraud cases in Cincinnati and led a successful case against a conspiracy ring that provided undocumented noncitizens with state-issued driver’s licenses.

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Tuesday round-up

By on Jul 3, 2018 at 8:32 am

President Donald Trump has said he will announce his nominee for the Supreme Court on July 9. As the countdown moves to six days, Robert Costa, Josh Dawsey and Felicia Sonmez report for the Washington Post that Trump “has spoken to at least four contenders,” but remains “coy about his shortlist.” Michael Shear and Maggie Haberman have the story for the New York Times.

Ballotpedia presents demographic data about all the names on Trump’s list of 25 possible selections. The Center for Public Integrity compiles the financial disclosure forms of the potential nominees.

Aaron Blake suggests in the Washington Post that Judge Amy Coney Barrett “makes an exceeding amount of sense — both for [Trump] personally and for this moment in politics.” At Bustle, Caitlin Cruz assesses, with concern, Barrett’s stance on abortion. For the Yale Journal on Regulation’s Notice & Comment blog, Evan Bernick reviews Barrett’s “extensive scholarship on statutory interpretation” for “insight into how Barrett might approach one of administrative law’s most centrally important and controversial doctrines: Chevron deference, which requires judges to defer to ‘reasonable’ agency interpretations of ‘ambiguous’ statutory text.”

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Petition of the day

By on Jul 2, 2018 at 6:17 pm

The petition of the day is:

17-1678

Issues: (1) Whether, when the plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law torts suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

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