on Jul 9, 2018 at 10:08 am
This evening President Donald Trump is expected to announce his nominee to succeed Justice Anthony Kennedy on the Supreme Court. Robert Costa and Robert Barnes of The Washington Post report that Trump said yesterday he was “close” to a final decision; Maggie Haberman, Adam Liptak and Michael Schmidt of The New York Times report that “he might need to extend the process well into Monday.”
When he does make the announcement, Trump – who “has warned his associates against leaking his next Supreme Court pick in a bid to ratchet up the intrigue” – “wants a repeat of his reality show reveal” from last year, which he sees “as one of the high-water marks of his presidency,” reports Andrew Restuccia for Politico. At Associated Press, Jessica Gresko reveals the secret machinations used by past presidents to keep their nominees secret.
Maggie Haberman and Jonathan Martin of The New York Times report that Senate Majority Leader Mitch McConnell of Kentucky told Trump that Judges Raymond Kethledge and Thomas Hardiman “presented the fewest obvious obstacles to being confirmed.” John Bowden compiles this and other statements, regarding whom “top conservatives and allies of the president want to see Trump pick for his next nominee,” for The Hill. For Politico, Christopher Cadelago, Eliana Johnson and Josh Gerstein report that Kethledge “is getting a behind-the-scenes push portraying him as the consensus choice of conservatives”; commentator Hugh Hewitt called him “Gorsuch 2.0,” reports Niv Elis for The Hill. In The Washington Post, Emma Brown reports that Hardiman “holds a more expansive view of the Second Amendment than the Supreme Court has articulated to date,” according to “scholars and advocates on both sides of the gun debate.” For this blog, Amy Howe profiles Kethledge and Hardiman.
As for other possible nominees, Jordain Carney of The Hill reports that Judge Amy Coney Barrett “has emerged as the favorite candidate for social conservatives”; in a second story at The Hill, Carney reports that Judge Brett Kavanaugh “is facing pushback from social conservatives who say he’s too moderate.” In an op-ed for the National Review, Justin Walker contends that Kavanaugh “has been a steadfast and fearless supporter of religious liberty for decades.” At The Narrowest Grounds, Asher Steinberg looks at Kavanaugh’s dissent in Garza v. Hargan, the case of a 17-year-old undocumented teenager who wanted – and ultimately had – an abortion. Mark Landler and Matt Apuzzo of The New York Times report that Kavanaugh “once argued that President Bill Clinton could be impeached for lying to his staff and misleading the public, a broad definition of obstruction of justice that would be damaging if applied to President Trump in the Russia investigation.”
Mark Landler and Maggie Haberman of The New York Times report that “all four of President Trump’s candidates for the Supreme Court are white, middle-aged federal appeals court judges with reliably conservative legal records.” Jeremy Kidd, in a new article posted at SSRN, “draws on recent scholarship on the ideology of law clerks hired by particular judges to create a new measure of ideology in order to be able to compare potential nominees with Supreme Court justices.” In a short video for The New York Times, Maea Lenei Buhre and David Botti address the possible nominees’ views on abortion; beyond abortion, Amy Goldstein of The Washington Post reports that “conservatives inside and outside the White House have embraced the broader issue of religious freedom as a central priority.” New Civil Liberties Alliance surveys six possible candidates, giving a slight edge to Kethledge over Kavanaugh.
NPR reports that Judge Amul Thapar “has dropped off President Trump’s list of candidates,” while Jordain Carney of The Hill reports that Thapar is “the candidate to watch” because of a “powerful ally in his corner” – McConnell. Johnny Sutton and Marty Jackley, in an op-ed for The Daily Caller, contend that Thapar, a former prosecutor, “stands out for those of us who have served in law enforcement.” At the Lexington Herald Leader, Bill Estep profiles Thapar.
Whomever Trump selects, “aides inside the West Wing feel excited about the Supreme Court pick, viewing it as a chance for Trump to score a victory,” reports Jordan Fabian of The Hill. Also for The Hill, Brett Samuels reports that Leonard Leo, an “adviser to President Trump on judicial issues,” said yesterday that “he believes Trump’s Supreme Court pick will be confirmed before November’s midterm elections.” In The Washington Post, Joel Achenbach looks into the roles Leo and Donald McGahn have played in Trump’s judicial-selection processes. Brett Samuels reports for The Hill that yesterday Senator Richard Blumenthal, Democrat of Connecticut, called it “extraordinary” that the president “outsourced his decision to the Federalist Society and the Heritage Foundation.”
Carl Huse of The New York Times reports that “Democratic senators running for re-election in Trump Country face an agonizing choice over President Trump’s coming Supreme Court nominee: Vote to confirm the pick and risk demoralizing Democratic voters ahead of the midterm elections, or stick with the party and possibly sacrifice their own seats — and any chance at a Democratic majority in 2019.” “Keeping them in the Democratic fold — in the face of withering pressure from a liberal base that expects nothing less — amounts to the biggest challenge of” New York Senator Chuck Schumer’s 18-month tenure as Democratic leader, reports Elana Schor for Politico. “Red-state Democrats are going to have a very hard decision, and I hope that every Republican will rally behind these picks because they’re all outstanding,” Senator Lindsey Graham, Republican of South Carolina, said yesterday, reports Max Greenwood for The Hill.
Additional coverage of the political situation comes from Burgess Everett of Politico, who reports that “the Supreme Court confirmation battle over Trump’s high court nominee will reverberate in Missouri more than any other Senate battleground this year.” Brett Samuels of The Hill reports that yesterday Senator Dick Durbin, Democrat of Illinois, “ripped” McConnell “for his handling of Supreme Court nominees, saying the Republican has used the court ‘to play to his political advantage.’”
Katelyn Burns of Rewire.News reports that liberal organizations have “unveiled the ‘personal liberty standard,’” “pushing for senators to reject any Court nominee who would overturn Roe v. Wade and criminalize abortion care in the United States.” Senator Susan Collins, Republican of Maine, has said she would reject candidates who don’t respect precedent, but the claim faces skepticism from at least two commentators. Richard Chen contends in the Portland Press Herald that “if the eventual nominee ends up disappointing her and her constituents, she should not be allowed to invoke precedent as an excuse when it was clear from the outset that she had the power and every reason to take a stronger stand.” Brianne Gorod argues in the Bangor Daily News that “the sheer number of times last term that [Justice Neil Gorsuch] voted to overrule precedents or aggressively called them into question belies his promises that he always starts with a ‘heavy, heavy presumption in favor of precedent.’”
Alexander Bolton of The Hill reports that “Democrats say the prospect that the Senate will confirm a Trump nominee who could overturn the Roe v. Wade decision legalizing abortion will bring an army of Democrats to the polls — to the detriment of Republicans, particularly in the House.” In an op-ed for The Washington Post, Gary Abernathy addresses fellow opponents of abortion: “Even if Roe v. Wade is soon overturned, pro-lifers shouldn’t celebrate too much. Abortion will still be in demand, because hearts haven’t yet been changed.” Max Boot has a different message for conservatives in an op-ed for The Washington Post: “Tolerating [Trump’s] reign of error would not be worth it even if he filled every seat on the Supreme Court with Antonin Scalia clones.”
In an op-ed at The Hill, Ginny Ehrlich argues that “it is essential that we consider the impact that the next Supreme Court Justice could have on women’s access to birth control.” In an op-ed at The Washington Post, Nancy Northup contends that “[y]ou can have either the president’s promise about overturning Roe or the Constitution’s promise of a realm of personal liberty. You can’t have both.” A contrasting op-ed at The Hill by James Gagliano suggests that “Trump’s imprimatur on the Supreme Court will have a lasting impact on our nation that has nothing to do with Roe, and everything to do with racially divisive issues like reparations.” At The Nation, David Cole writes that “[i]f President Trump names another rigidly right-wing justice, the Court risks becoming an outlier, far more conservative than the country at large.” In a podcast with the American Civil Liberties Union, Cole “considers the court’s very uncertain future.”
- At the Pacific Legal Foundation blog, Jonathan Wood argues that the foundation’s pending petition in California Sea Urchin Commission v. Combs presents “an excellent opportunity for the Court to restore the Constitution’s separation of powers and restrain the administrative state.”
- At his eponymous blog, Kenneth Jost assesses the court’s decisions in Janus v. American Federation of State, County, and Municipal Employees and National Institute of Family and Life Advocates v. Becerra; he contends that the “5-4 splits in the two decisions speak less to constitutional law than to raw politics.”
- Daniel Wallach reports for Forbes that “some legal commentators now believe that the Court’s decision [in Murphy v. National Collegiate Athletic Association] … could dramatically expand legalized sports betting through the use of the Internet.”