Monday round-up

For The Washington Post, Robert Barnes reports that “Judge Brett M. Kavanaugh’s views on race, executive privilege and whether the Supreme Court ruled correctly in requiring President Richard Nixon to turn over the Watergate tapes are all contained in a trove of material given to the Senate on Saturday.” Mark Sherman reports for the Associated Press that these documents, provided to lawmakers in conjunction with a Senate Judiciary Committee questionnaire, show that “Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.” At Bloomberg, Greg Stohr notes that “[t]he documents also show Kavanaugh predicted two decades ago that the court would soon embrace a color-blind view of the Constitution, an approach that could outlaw affirmative action.” Additional coverage of Kavanaugh’s submission, which “bring[s] him[] one step closer to a scheduled confirmation hearing,” comes from Elana Schor at Politico.

At Axios, Alayna Treene reports that “[m]ore than 100 organizations have signed a letter demanding that no hearing date is scheduled for Supreme Court Nominee Brett Kavanaugh until all of his records from his time in the George W. Bush administration are turned over to the Senate Judiciary Committee.” At Politico, Elana Schor and Burgess Everett report that Senate Majority Leader Mitch McConnell “privately told senior Republicans [last week] that if Democrats keep pushing for access to upwards of a million pages in records from President Donald Trump’s high court pick, he’s prepared to let Kavanaugh’s confirmation vote slip until just before November’s midterm elections.” According to Jordain Carney at The Hill, “Democrats are seizing on the failed nomination of Ryan Bounds, President Trump’s unsuccessful circuit court pick, as they look for leverage in a fight over confirming Supreme Court nominee Brett Kavanaugh.” For the Associated Press, Lisa Mascaro notes that Kavanaugh’s “lengthy paper trail” “has become a game of high-stakes political strategy.”

In an op-ed for The Hill, Alex Kaplan suggests that if Democrats retake the Senate and the White House in 2020, they “should offer an alternative to Republicans that serves the long-term interests of the country above party: add four new justices who are esteemed, ideologically moderate, and selected by the two parties together.” At PrawfsBlawg, Howard Wasserman takes issue with liberal complaints about Republican court-packing. In a new episode of First Mondays (podcast), Dan Epps and Ian Samuel recap the latest developments in the Kavanaugh confirmation battle.

Constitution Daily’s We the People podcast “explores what the appointments of Kavanaugh and Gorsuch might mean for the future of the Supreme Court and constitutional law.” At Education Week, Mark Walsh reports that although Kavanaugh “has a sparse track record on affirmative action and racial preferences,” “the few clues that exist are not likely to give much comfort to those who believe that pursuing racial diversity in education is a compelling governmental interest.” Orin Kerr looks at Kavanaugh’s Fourth Amendment record for this blog.

At New York magazine’s Daily Intelligencer, Ed Kilgore maintains that it is an open secret among anti-abortion activists that Kavanaugh is “a very likely fifth vote to overturn or significantly modify Roe v. Wade.” At The National Law Journal (subscription or registration required), Barry McDonald observes that with Justice Anthony Kennedy’s likely replacement by a more reliably conservative justice, “Kennedy’s moderating influence will likely yield to stricter conservative stances” in “important 14th Amendment areas.” At Jost on Justice, Kenneth Jost argues that although “Kavanaugh may try on sheep’s clothing when he comes before the Senate Judiciary Committee,” “[t]his wolf comes as a wolf, with a public record of wanting to overturn judicial precedents.”

Briefly:

• At Slate’s Amicus podcast, Dahlia Lithwick talks to Rick Hasen, “author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, about civil discourse, rock star justices, and what Justice Scalia would have thought of President Trump.”
• At In These Times, James Gray Pope and others look at approaches to “rebuilding labor after the Supreme Court’s … ruling” 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.
• The Penn Program on Regulation’s October Term 2017 Regulatory Review “present[s] numerous essays by leading legal scholars and practitioners commenting on the Court’s most significant regulatory decisions from this past term.”

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