Tuesday round-up

EDITH ROBERTS MAR 14, 2017 7:27 AM

At CNN, Ariane de Vogue reports on the “stealth nomination” of Judge Neil Gorsuch to the Supreme Court, noting that many “progressives criticized the pick … and referred to the seat as being ‘stolen’ from President Barack Obama’s choice of Merrick Garland, but then they largely turned their attention to a series of extraordinary events unfolding from the Trump administration and Republican-controlled Congress,” and that “short of a bombshell from his past or at the hearing, Gorsuch is set to help cement a conservative majority on the Supreme Court for years to come.” In The New York Times, Matt Flegenheimer outlines the lines of attack Democratic senators are likely to employ during the upcoming confirmation hearing, reporting that they will argue that “Gorsuch’s rulings have favored the powerful and well-connected” and that “he has done little … to demonstrate independence from a president whose combative relationship with the judiciary has already clouded the nominating process.”

In an op-ed in The Hill, Carolyn Shapiro argues that Democratic senators should try to” get behind the smokescreen” created by “the rhetoric of neutrality” by, for example, using Brown v. Board of Education to ask Gorsuch “why some past claims of judicial activism fade and why, over time, we accept the correctness of some once-contested decisions.” At Prawfsblawg, Richard Re looks at ”the history of the judicial oath’s “equal right” principle, including its role in recent confirmation hearings,” and offers three questions senators could ask Gorsuch to “prompt public reflection on legal issues regarding economic equality” and “help the public understand what Justice Gorsuch would mean when he promises to do ‘equal right to the poor.’” In an op-ed in The National Law Journal (subscription or registration required), David Rudenstine asserts that Gorsuch’s espousal of originalism “disqualifies him from becoming a Supreme Court justice,” because “originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept,” and that by embracing it, Gorsuch “knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge.”

Briefly:

• At Fault Lines, Andrew King discusses Kokesh v. Securities and Exchange Commission, in which the court will decide whether that the five-year statute of limitations on SEC enforcement actions applies to actions seeking disgorgement, arguing that “prior precedent, along with the historical practice, strongly suggests that the SEC is trying to circumvent the statute by essentially calling a dog a cat.”
• At the ACS Blog, Bidish Sarma looks at Turner v. United States, which involves the scope of the prosecution’s duty to disclose exculpatory evidence under the so-called Brady rule, maintaining that at “the heart of this case is a conundrum implicating the ‘materiality’ standard,” and that courts “around the country have demonstrated a reluctance to grant defendants new trials under Brady, rendering the materiality standard a very difficult one for defendants to meet.”
• At Empirical SCOTUS, Adam Feldman examines the career of Noel Francisco, President Donald Trump’s nominee for solicitor general, concluding that given “Francisco’s regular successful representations of conservative clients, track record of work with the US Government under Republican Presidents, clerkships with highly regarded conservative judges like Justice Scalia, and multiple appearances before the United States Supreme Court in his private capacity, his nomination to the post of Solicitor General should not be seen as a surprise.”
• The World and Everything in It features discussions of Esquivel-Quintana v. Sessions, in which the justices will decide whether a state-law conviction of “sexual abuse of a minor” constitutes an “aggravated felony” under federal immigration law that requires the removal of a lawful permanent resident, and Coventry Health Care of Missouri, Inc. v. Nevils, which asks whether a federal statute governing federal employee health insurance benefits pre-empts Missouri’s anti-subrogation law.

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