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Friday round-up

At NPR, Nina Totenberg traces the road leading to the threat of a “genuine and continued GOP blockade” of Supreme Court nominations in a Hillary Clinton presidency, and assesses the prospects for and consequences of such a development. Other coverage highlights divisions among Republican senators about the advisability of a blockade. In The Dallas Morning News, Jordan Rudner reports that, in contrast to recent Republican senators’ threats to impose a blockade, Texas Sen. John Cornyn has stated that he “stands by his earlier comments that the next president should make the nomination to fill the court’s vacancy.” At Politico, Seung Min Kim and Burgess Everett report that Arkansas Sen. Tom Cotton also “won’t endorse a strategy to indefinitely block any Supreme Court nominee from Hillary Clinton.” But in The Washington Post, David Wiegel reports that Sen. John McCain recently “revisited an idea he’d walked back last month — that a Republican majority in the Senate would be ready to fight any Hillary Clinton nominee to the Supreme Court.”

At The Huffington Post, Cristian Farias reports that, at a Clinton campaign event in North Carolina, President Barack Obama criticized North Carolina Sen. Richard Burr for endorsing the blockade and derided the notion that “only Republican presidents get to nominate judges.” Additional coverage of Obama’s remarks comes from Steve Benen at MSNBC, who notes that “the fact that Burr used to argue that the nation’s judicial system couldn’t possibly function with an eight-member Supreme Court, only to argue the exact opposite now, requires an explanation beyond just a rote ‘politics as usual’ response.” At GQ, Jason Zengerle observes that “the fact that Burr—who lacks the ideological and the careerist motivations to stake out such an extreme position—vows to deny a Clinton Court pick, suggests this is now the mainstream GOP position.”

In an op-ed in the Chicago Tribune, Steve Chapman harks back to President Franklin Roosevelt’s failed New Deal “court-packing” gambit, arguing that “changing the size of the court in an attempt to influence how it decides future cases would be a cynical assault on the judiciary and republican government — as it was seen to be in 1937.” At the New Republic, Brian Beutler envisions “a full-blown crisis of one kind or another” under a Clinton presidency, “regardless of which party controls the Senate.” But in an op-ed in The Huffington Post, Allen Ides observes that “regardless of whoever gets elected and whichever party controls the Senate, it seems unlikely that either presidential candidate will have carte blanche selection to the Court.” At The Hill, Alexander Bolton reports that “Hillary Clinton will face a tough decision on the Supreme Court if she wins the presidency on Tuesday,” because she will have to choose between re-nominating Chief Judge Merrick Garland or succumbing to pressure from the left “to jettison Obama’s centrist nominee and pick a younger and more liberal judge.” Advice & Consent (podcast) features a discussion of a range of issues related to the effect of the election on the court.

For the Associated Press, Kim Chandler reports that the Supreme Court has stayed the execution of  Alabama death-row inmate Tommy Arthur, as the court considers whether to review Arthur’s challenge to Alabama’s death penalty procedure. “Chief Justice John Roberts wrote Thursday that he did not think the case merited a stay, but voted to grant it as a courtesy to the four justices who wanted to ‘more fully consider the suitability of this case for review.’” Additional coverage comes from Mark Berman at The Washington Post, who notes that “the country is on pace to have its fewest executions in a quarter-century.”


  • At ACS, Ajmel Quereshi discusses Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami, two consolidated cases to be argued next week involving whether cities can sue banks for predatory lending practices under the Fair Housing Act, arguing that the “Court, in making its decision, must recognize our history of housing discrimination and homeownership inequity, as well as the severe human consequences were it to accept the banks’ argument and reverse course.”
  • At Reason, Damon Root notes that Libertarian presidential candidate Gary Johnson has released “a list of six candidates that he says he would consider naming to SCOTUS if he wins the White House,” including law professor Randy Barnett and two federal appeals court judges, Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit and Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit.
  • At Bloomberg, Patrick Gregory reports that “Missouri’s attorney general election Nov. 8 could determine whether a long-unscheduled religious freedom argument,” in Trinity Lutheran Church of Columbia, Inc. v. Pauley, “gets delayed even longer or canceled altogether.”
  • In the Northwestern University Law Review Online, Leah Litman and Shakeer Rahman examine Beckles v. United States, an upcoming case involving whether a residual clause in the sentencing guidelines is unconstitutionally vague and if so, whether a ruling to that effect should be retroactive; they argue that “there are other, equally significant questions that lurk beneath the surface in Beckles,” which “will determine which prisoners would benefit from a favorable decision” in the case, and that the “Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them.”
  • In The National Law Journal (subscription or registration required), Tony Mauro compares the records of Justice Sonia Sotomayor and Justice Elena Kagan, President Barack Obama’s Supreme Court appointees, noting that “it is still too early in their tenure to assess their work or their precise place on the ideological spectrum,” and that their “influence could expand or deflate rapidly, depending on who is elected president in November and has a chance to name future justices”; one thing, he observes, “is for sure: Sotomayor and Kagan—along with Ginsburg—affect the public perception of the court whenever they take the bench,” because spectators “now see three women arrayed amidst five men on the court.”
  • At his eponymous blog, Ross Runkel looks at National Labor Relations Board v. Murphy Oil USA, Inc., a pending cert petition that is one of several that ask the “US Supreme Court to decide on the legality of arbitration agreements that bar employees from pursuing work-related claims on a collective or class basis.”
  • At Cato at Liberty, Jim Harper discusses “friend of the court” briefs filed by Cato urging the court to grant review in two cases “dealing with the constitutional status of ‘cell site location information,’ or ‘CSLI,’ arguing that the court should “recognize that telecommunications customers can have property rights in such data, and that when the government seeks to seize and search such data, it generally requires a warrant.”
  • At The National Law Journal (subscription or registration required), Marcia Coyle reports that retired Justice John Paul Stevens, a Chicago native, was among the fans cheering on the Chicago Cubs as they won the World Series in extra innings on Wednesday night; Stevens had attended Game 4 but watched Game 7 on TV from his Florida home, calling it “’the wildest game that I can remember.’”
  • In The New York Times, Manohla Dargis reviews “Loving,” a movie about the interracial couple at the center of the landmark civil rights case Loving v. Virginia, which successfully challenged the state’s anti-miscegenation law, lauding the way the movie “plucks two figures from history and imagines them as they once were, as people rather than monuments to American exceptionalism.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Nov. 4, 2016, 7:39 AM),