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Wednesday round-up

The nomination of Judge Merrick Garland, and other issues surrounding the vacancy left by the death of Justice Scalia almost seven months ago, continue to dominate coverage of the Court. At CNN, Ariane de Vogue reports on the factors that might lead to Garland’s confirmation if Hillary Clinton wins in November, including the prospect of Senate action in a lame-duck session and the possibility that “if Clinton were to win, she may not want to engage in an immediate battle royale over the Supreme Court,” but might instead re-nominate the “eminently qualified” Garland and wait for other opportunities to dramatically reshape the Court. At Reuters, Lawrence Hurley reports that Garland’s supporters “launched a new push to persuade the Republican-led Senate to act on the nomination before the Nov. 8 presidential election, but their calls fell on deaf ears.” And at The Hill, Jordain Carney reports that Senate Minority Leader Harry Reid “is doubling down on a fight over Supreme Court nominee Merrick Garland, warning that Democrats will hold up Senate committee meetings to protest inaction on his nomination.”

Additional coverage comes from Nina Totenberg at NPR, who notes that, even in the event of a Clinton victory in November, if Senate Majority Leader Mitch McConnell “sticks to his guns and doesn’t allow a lame-duck vote, the Supreme Court will remain short-handed and sometimes tied on important issues for many more months to come.” Garrett Epps remarks in The Atlantic on the “reduced state” of the Court as it awaits the addition of a ninth justice: “Call it Schrodinger’s Court. Like the cat in the box who is both alive and dead, the Court finds itself in a state of quantum superposition, a possible far-right Court shimmering simultaneously beside and within an equally ectoplasmic liberal one.”

At EmpiricalSCOTUS, Adam Feldman points out the large number of Garland law clerks who have gone on to clerk for various justices, arguing that “even without sitting as a member of the Supreme Court, Judge Garland has and will have an impact on a great number of the Court’s decision-makers and the Court’s decisions.” Commentary on the implications for constitutional law of future appointments to the Court comes from Erwin Chemerinsky, who writes in the ABA Journal that “there is no issue more important in the coming election than who will fill the vacancies that are sure to exist on the Supreme Court in the next several years.”


  • At the Brookings Institution’s FixGov blog, Russell Wheeler highlights the large number of vacancies on federal district and circuit court benches, noting that “thirty-eight of the 49 pending nominees have been waiting longer than has Judge Merrick Garland,” and that “these vacancies, many of which are longstanding, have serious consequences for litigants and for sitting judges on vacancy-riddled courts.”
  • In Prawfsblog, Jack Preis discusses Manuel v. City of Joliet, which involves the Fourth Amendment rights of a petitioner who was subjected to pretrial detention without probable cause, arguing that “proximate cause principles” could “help sort out what should happen” as a “case proceeds through the system.”
  • Lisa Soronen at The NCSL Blog summarizes the issues in Ivy v. Morath, which presents the question of “when state and local governments are responsible for ensuring that a private actor complies with the ADA.”


Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Sep. 7, 2016, 10:22 AM),