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Tuesday round-up

In The New York Times, Peter Baker reports on President Donald Trump’s decision to move up his announcement of a Supreme Court nominee to tonight at 8 p.m., noting that some “Senate Democrats, still angry that Republicans prevented Mr. Obama from filling the seat, said they might filibuster Mr. Trump’s nominee, which would be historically unusual but not unprecedented.” In an op-ed in the Washington Times, Ryan Owens argues that Donald Trump should nominate Judge Neil Gorsuch to the Supreme Court because Gorsuch is well-positioned to “counteract Justice Elena Kagan’s apparent influence on Justice Anthony Kennedy and gently escort Justice Kennedy back to his conservative roots.” At Empirical SCOTUS, Adam Feldman outlines several reasons why Gorsuch is the most likely nominee, but cautions that “it would not be unprecedented for President Trump to have a trick up his sleeve.” In The National Law Journal (subscription or registration required), Tony Mauro reports that if Gorsuch is nominated and confirmed, “he will be the fourth justice on the court to have served previously as a high court law clerk—a record number on the nine-member court.”

In The Washington Post, Sari Horwitz reports that another Trump short-lister, Judge Thomas Hardiman, “has not followed the typical path to the Supreme Court.” At NPR, Nina Totenberg reports that Hardiman is “said to be very conservative or even in the view of some a little wacky,” and that one of Hardiman’s colleagues has said that Hardiman “thinks climate change is a hoax.” At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro takes a brief look at the three reported finalists, declaring himself to be “confident” that each judge on Trump’s “excellent short list” is “worthy of elevation.” In a column for Bloomberg View, Noah Feldman considers whether any of the finalists is an “originalist in the same vein” as Justice Antonin Scalia, concluding that although “Trump’s nominee will be a conservative originalist,” “he likely will not be someone who makes originalism his life’s work.”


  • At the Council of State Governments’ Knowledge Center blog, Lisa Soronen discusses Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment, arguing that the law passes First Amendment muster because a “conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles.”
  • At Letters Blogatory, Ted Folkman discusses the petitioner’s brief and an amicus brief filed by the government in support of the petitioner in Water Splash v. Menon, a case involving service of process under the Hague Convention, noting that both “briefs seem to me to suggest that the Convention applies only to service of process, and not to service (or transmission) of other judicial documents.”
  • The World and Everything in It (podcast) features the oral arguments in Expressions Hair Design v. Schneiderman, a First Amendment challenge to a New York law that allows merchants to give discounts to customers who pay in cash, but prohibits the imposition of surcharges for customers who use credit cards, and Life Technologies v. Promega, a patent case that asks when export of a “substantial portion” of the components of a patented invention for assembly outside the country creates patent infringement liability.
  • At the Cato Institute’s Cato at Liberty blog, Walter Olson discusses TC Heartland LLC v. Kraft Food Brands Group LLC, in which the justices will consider the rules governing the venue in which patent infringement lawsuits can be filed, noting that although “Congress could clear up the matter in ten minutes – either by adopting a venue rule explicitly contemplating forum-shopping, or by closing it down in favor of narrowly defined venue,”  “it doesn’t, … so this enormous policy decision gets kicked over to the Supreme Court.”
  • In The Huffington Post, Carol Steiker urges the court to grant a stay in the case of Missouri death-row inmate Mark Christeson, who is scheduled to be executed today, arguing that no “court has ever fully considered the merits of Mr. Christeson’s claims, and if this execution proceeds on January 31st no court ever will.”
  • The Washington Post’s editorial board weighs in on Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name, maintaining that the “justices should strike the “may disparage” clause without foreclosing the possibility that Congress might come up with a more precise and workable formulation.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jan. 31, 2017, 6:44 AM),