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Monday round-up

A week after the nomination of Judge Brett Kavanaugh for the Supreme Court, coverage of the confirmation process abounds. For The Hill, Alexander Bolton reports that “Kavanaugh seems on track for confirmation, as moderate Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have not signaled plans to oppose his confirmation despite strong lobbying over their votes.” In another article for The Hill, Bolton reports that “Democrats are fighting among themselves over how far to go to oppose … Kavanaugh and tempers are starting to flare ahead of a decision that could weigh heavily on the midterm elections.” At the Associated Press, Thomas Beaumont and Steve Peoples report that “[e]ven among this year’s most prized voting bloc — educated suburban women — there’s no evidence that a groundswell of opposition to a conservative transformation of the judicial branch, which could lead to the erosion or reversal of Roe v. Wade, will significantly alter the trajectory of the midterms, particularly in the House.”

For Politico, Burgess Everett and Elana Schor report that “Kavanaugh’s nomination is already a huge headache for … Senate minority leader” Chuck Schumer of New York. For Politico, Carla Marinucci reports that “Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, said Saturday that the vetting process for the confirmation of Brett Kavanaugh to the Supreme Court will be “incredibly difficult,’’ and that her staff is reading nearly 1 million documents that she said could give red-state Democrats reason to oppose his nomination.”

Jane Mayer reports for The New Yorker that “Democrats, who are casting for an effective line of argument against Kavanaugh, see the health-care issue as their best bet to date.” Additional reporting on the Democratic response to the nomination comes from Molly Hensley-Clancy for BuzzFeed News. For The Hill, Lydia Wheeler reports that “Brett Kavanaugh’s unusually lengthy paper trail and the president’s power to keep some documents confidential could become a flashpoint in Senate Democratic efforts to thoroughly vet the Supreme Court nominee.”

For The New York Times, Carl Hulse observes that if the Democrats had not filibustered the nomination of Judge Neil Gorsuch, resulting in the loss of the filibuster for Supreme Court nominations, President Donald Trump “might have been forced to find a more consensus candidate.” In a Washington Post analysis, Paul Kane notes that “[l]awmakers are scouring th[e] showdown last decade [over Kavanaugh’s nomination to the court of appeals] for clues to how the federal judge handled certain questions — and which questions he simply ducked.” At CNN, Harry Enten concludes that Kavanaugh’s nomination is likely to be defeated “only if the public turns against his confirmation, … as they did with Robert Bork in 1987.”

For NPR, Nina Totenberg questions GOP senators’ invocation of “something they call ‘the Ginsburg rule,’” based on their contention “that at her confirmation hearing, liberal nominee Ruth Bader Ginsburg established a precedent for refusing to answer questions about issues before the Supreme Court,” pointing out that “a recent study shows that [Ginsburg] was among the most responsive nominees ever to appear before the senate Judiciary Committee.” In an op-ed for The Washington Post, Jeffrey Segal debunks “five of the most persistent misconceptions” about the Supreme Court, with an eye to the extent to which political considerations influence the institution.

For The New York Times, Scott Shane and others review Kavanaugh’s career, noting that “Kavanaugh is by legacy and experience a charter member of elite Washington.” In an op-ed for The Washington Post, Ruth Marcus observes that although Kavanaugh “describes Justice Anthony M. Kennedy, for whom he clerked and whose seat he has been tapped to fill, as his ‘mentor,’” “Kavanaugh’s true judicial role models may be two other, significantly more conservative justices — William H. Rehnquist and Antonin Scalia.” For The Washington Post, Robert Barnes and Ann Marimow report that Kavanaugh’s speech “celebrat[ing] his ‘first judicial hero,’ the late Chief Justice William H. Rehnquist,” “and other writings and talks he has given, underscore how different he is from Kennedy.” Jess Bravin and Brent Kendall report for The Wall Street Journal that although “[t]here is little doubt the Supreme Court will extend its turn to the right if Judge Brett Kavanaugh joins the bench this fall,” “Kavanaugh’s connection with nearly every justice, and his reputation as a straight-shooter even among those who disagree with him, suggests he would make the ride as smooth as possible.”

For this blog, Amy Howe has an overview of Kavanaugh’s record here, while closer looks at the judge’s record on campaign finance, and on a law-review article about presidential power, come from Charles Davis, here, and Kevin Russell, here.

In an op-ed for The New York Times, Ari Berman maintains that Kavanaugh’s record “suggests that he will join with the court’s conservative justices to further roll back voting rights protections and other civil rights laws.” At ACS Blog, Ruben Garcia argues that “Kavanaugh’s 2014 dissenting opinion in SeaWorld of Florida, LLC v. Perez reflects Judge Kavanaugh’s deep skepticism of the institutions that Congress designed to protect American workers.” In an op-ed for The Hill, Julie Burkhart warns that “[t]he confirmation of Brett Kavanaugh to the Supreme Court will lead to a decision to overturn or gut the essence of Roe v. Wade.” At EarthJustice, Patrice Simms outlines what Kavanaugh’s nomination “means for the future of environmental protections.” Ernie Haffner’s eponymous blog looks at Kavanaugh’s opinions in federal employment discrimination cases, concluding that “Kavanaugh’s EEO opinions offer something for both employers and employees to like — he can be comfortable with curtailing EEO protections to prevent conflicts with other interests, but he interprets protections broadly when he believes they are supported by the statutory text.”

At Jost on Justice, Kenneth Jost contends that “Brett Kavanaugh’s on-and-off relationship with the U.S. presidency demonstrates that he is a creature of situational ethics, far from the judge of unbending moral principle as his admirers claim.” The editorial board of the Wall Street Journal pushes back against suggestions that “President Trump appointed Judge Kavanaugh to save him in a constitutional showdown with special counsel Robert Mueller,” arguing that “Judge Kavanaugh’s legal record suggests he will be more skeptical of executive regulatory power than most liberal judges are today.” And in an op-ed for The Wall Street Journal, Daniel Henninger finds it “possible that the Kavanaugh Court may give everyone a chance to step back from the political cliff.”


  • For The New York Times, Erica Green reports on how teachers unions are coping with the fallout from the Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • The editorial board of the Broward County, Fla., Sun Sentinel maintains that the message of the court’s decision last term in Lozman v. City of Riviera Beach “is clear: a citizen’s First Amendment rights cannot be cut short by elected officials who don’t like what’s being said during a public meeting.”
  • At the George Washington Law Review’s Notice and Comment blog, Anita Sinha responds to the court’s decision in the entry-ban case, Trump v. Hawaii.

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jul. 16, 2018, 6:28 AM),