Friday round-up

As the Monday deadline President Donald Trump has set for announcing his replacement for retiring Supreme Court Justice Anthony Kennedy approaches, Robert Costa and Seung Min Kim report for The Washington Post that “Trump’s deliberations over a Supreme Court nominee now center on three candidates culled from his shortlist: federal judges Brett M. Kavanaugh, Raymond Kethledge and Amy Coney Barrett.” At NPR, Nina Totenberg names Kavanaugh and Barrett as the two finalists, and reports that “a quintessentially Washingtonian fight has erupted between [their] supporters.”

Eliana Johnson reports at Politico that among the reported front-runners, “[m]uch of the jockeying has centered on D.C. Circuit Court Judge Brett Kavanaugh.” An anonymous contributor to The Federalist finds a “troubling pattern” of “errors” by Kavanaugh “in religious liberty cases,” concluding that “Kavanaugh poses too big of a risk of disappointing on religious freedom to be placed on the nation’s highest court.” But at Politico, Matthew Nussbaum notes that the betting markets are favoring Kavanaugh. For The Washington Post, Beth Reinhard reports that Barrett “has argued that justices should not be bound by court precedent in deciding whether to overturn landmark decisions that they deem out of step with the Constitution.” At The National Law Journal (subscription or registration required), Marcia Coyle and Tony Mauro offer “some ‘out of the box’ insights” into Kethledge, including that the judge “has been a strong supporter of Second Amendment rights.”

At National Review, Lillian Beview observes that another reported frontrunner, Judge Amul Thapar, with whom she has co-taught a class about judicial philosophy, “has a great deal in common with Justice Thomas.” In an op-ed for the Washington Examiner, Ilya Shapiro explains why Thapar deserves serious consideration. Abigail Simon looks at four of the frontrunners for Time. For The Washington Post, Aaron Blake lists the pros and cons of six shortlisters. At The Weekly Standard, Ryan Owens and Christopher Krewson discuss their recent research showing that “the American people tend to support nominees who espouse ‘Original Intent,’ which we defined as judges who ‘look to the intent of the drafters and ratifiers of the Constitution to reach conclusions about its meaning.’”

Axios’ Mike Allen predicts that Trump’s pick will be “more about personality than pedigree.” At Politico, Annie Karni and Eliana Johnson report that the “process of filling a second Supreme Court opening [is] play[ing] out like a political campaign, with attention to the whole package, including a potential nominee’s appearance as well as the look and feel of his or her family.” At The Hill, Jourdain Carney reports that “[s]enators are griping that the looming nomination … will prevent them from being able to focus on legislation, as lawmakers dig in for a drawn-out rhetorical battle to confirm” Kennedy’s replacement.

For The New York Times, Carl Hulse observes that “[t]he coming showdown over replacing … Kennedy … should only add to the perception of the court as a platform for a defining struggle between Republicans and Democrats.” At Politico Magazine, David Greenberg puts the partisan wrangling in historical context, noting that “[i]t’s hard to recall now, but for most of the past century almost nobody would admit to voting for or against a nominee because of his or her partisan affiliation.”

Looking at the court after Kennedy, Oliver Roeder at FiveThirtyEight points out that liberals shouldn’t place too much hope in the presumed new “median voter,” noting that “[w]hile the statistical metrics show Roberts taking a relatively moderate position, he has very rarely voted with the liberals when it mattered.” At Take Care, Leah Litman maintains that “there’s no question the modified Court will overturn Roe; the only question is how it will do so.” But in an op-ed for NBC News, Danny Cavallos argues that “[c]ontrary to what many commentators and Democrats are saying, Roe v. Wade is probably not ‘doomed.’” NPR features an interview with election-law expert Richard Hasen “about how retiring Supreme Court Justice Anthony Kennedy’s successor may affect voting rights.” At Politico, Josh Gerstein reports that a “pile of pending lawsuits over Donald Trump’s personal and business conduct could put his nominee to the Supreme Court in an awkward position: deciding whether to cast potentially pivotal votes on legal matters of keen importance to the president.”

Constitution Daily’s We the People podcast looks at Kennedy’s legacy. In an op-ed for Politico Magazine, Rahm Emanuel refutes the “[c]onventional wisdom hold[ing] that Justice Anthony Kennedy was a moderate whose rulings hewed down the center of the fairway with the centrist wisdom of a modern-day King Solomon.”

At Take Care, Nikolas Bowie observes that Justice Samuel Alito’s opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court held that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, contains a “recyclable sentence” that “could serve as the basis for undermining an enormous number of priorities that have nothing to do with labor.” At The Nation, Moshe Marvit writes, “[S]cratch the surface of the Janus case and what fast becomes clear is that it, like so much else in the right-to-work realm, did not begin with a worker but rather with a wealthy anti-union businessman.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the respondents in this case.]

Briefly:

• For The Economist, Steven Mazie explains why “the framers entrust[ed] judges[, including Supreme Court justices,] with lifetime appointments, when every other democracy in the world imposes term limits, a mandatory retirement age or both.”
• For The Washington Post, Jessica Contrera looks at Kristen Waggoner, the public face of Alliance Defending Freedom, “an Arizona-based Christian conservative legal nonprofit” “fighting for the right of Christians to openly express their faith — and winning.”
• In the latest episode of Rewire.News’ Boom! Lawyered podcast, Jessica Mason Pieklo and Imani Gandy “sift through the wreckage of the Court’s decisions” this term.
• In an op-ed for Forbes, Cory Andrews weighs in on National Institute of Family and Life Advocates v. Becerra, in which the court held that a California’s statute that requires crisis pregnancy centers to make disclosures, including about the availability of abortions, likely violates the First Amendment, observing that the opinion lacks “any acknowledgment, much less discussion, of the Court’s longstanding exception to strict-scrutiny review for commercial speech.”
• Also at Take Care, Lina Khan criticizes the majority’s “clums[]y” analysis in Ohio v. American Express Co., “which establishes a special rule for analyzing the conduct of companies that operate in ‘two-sided transaction platforms,’ significantly raising the burden that plaintiffs must meet at the very earliest stage of litigation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the petitioners in this case.]
• At Understanding the ADA, William Goren notes that the court’s opinion in South Dakota v. Wayfair, which opened the door for states to collect sales tax on all internet purchases, “suggest[s] that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.]

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