on Jul 5, 2018 at 7:15 am
Court-watchers did not take a holiday yesterday from the Supreme Court nomination drama. For the Associated Press, Catherine Lucey and others report that President Donald Trump has now spoken with seven candidates for Justice Anthony Kennedy’s soon-to-be-vacant seat and that “Vice President Mike Pence has met with some of the contenders” as well. For The Wall Street Journal, Peter Nicholas and Louise Radnofsky report that “[f]ollowing a brisk round of interviews Monday and Tuesday, the three front-runners at this late stage in the president’s search are all U.S. appeals court judges: Brett Kavanaugh of Maryland, of the D.C. Circuit; Raymond Kethledge of Michigan, of the Sixth Circuit; and Amy Coney Barrett of Indiana, of the Seventh Circuit.” For The Hill, Brett Samuels reports that Trump “on Tuesday night promised a ‘home run’ pick for his Supreme Court nominee after continuing interviews with potential candidates earlier in the day.” At Balkinization, Mark Tushnet questions the value of the presidential interview to the selection process.
The Center for Public Integrity tracks financial-disclosure forms for the nominees on the president’s list. At Empirical SCOTUS, Adam Feldman offers relevant statistics about five front-runners. At Keen News Service, Lisa Keen looks at where the five “stand on LGBT-related concerns.” At the Yale Journal on Regulation’s Notice & Comment blog, Chris Walker collects “thoughtful blog posts” analyzing the top five’s views on administrative-law. The magic number is six at The Daily Signal, where Elizabeth Slattery and John Malcolm highlight a sextet of top candidates, who “all would be great additions to the Supreme Court.”
Fantasy Scotus gives the edge to Judge Amy Barrett. Amy Howe profiles Barrett for this blog. At Balkinization, Mark Tushnet considers the article about judging by Catholics that was so controversial at Barrett’s confirmation hearings. At Slate, Ruth Graham looks at People of Praise, the religious group to which Barrett belongs. In an op-ed for The Washington Post, Ruth Marcus argues that out of all the prospective candidates, Barrett is “the one who seems most inclined to undo Kennedy’s work and overturn Roe as completely and quickly as possible.”
For The Washington Post, Robert Costa and Josh Dawsey report that “[a]n intensifying debate over Judge Brett M. Kavanaugh, a front-runner in President Trump’s search for a Supreme Court nominee, gripped Republicans on Tuesday, with conservative critics highlighting past rulings and his links to GOP leaders while his allies — including inside the White House — forcefully defended him.” At the Election Law Blog, Rick Hasen suggests that “a Justice Kavanaugh could well vote with a new SCOTUS majority to hold that laws effectively limiting foreign influence in our elections violate the First Amendment.” For The New York Times, Adam Liptak remarks that “the stark contrast” between Kavanaugh and Barrett “reflects the division on the right between the conservative legal establishment, which is hostile to government regulation and the administrative state, and social conservatives, who are focused on issues like abortion and religious freedom.”
For The Washington Post, Michael Scherer reports that “[l]iberal political strategists hope to block President Trump’s next Supreme Court nominee” by focusing on two Republican senators, Sen. Lisa Murkowski of Alaska and Sen. Susan Collins of Maine. For Politico, Elana Schor reports that “[g]rass-roots groups on the left are planning a massive mobilization next week against President Donald Trump’s Supreme Court nominee — pressing senators to oppose the pick as soon as it’s announced.” At The Nation, John Nichols identifies a “calculus for blocking Trump’s Court pick.” At The Hill, Lydia Wheeler reports that “[s]tare decisis, the Latin term that means courts should ‘stand by things decided,’ has jumped to the forefront of the Senate debate over President Trump’s next pick to the Supreme Court.” At CNN, Joan Biskupic identifies two other themes that have already emerged in the confirmation process “[e]ven without a choice yet from President Donald Trump”: “Russia and Roe.” But in an op-ed for The Hill, Jonathan Turley pushes back against the suggestion that the Russia investigation is relevant, maintaining that “[w]hoever Trump’s nominee may be, it is the nominee, not the nominating president, who should be the focus of a confirmation vote.”
At Slate, Hasen assesses the effect of replacing Kennedy on voting-rights cases, predicting that “issues from voting rights to campaign finance [will] get far worse.” Also at Slate, Dahlia Lithwick and Mark Joseph Stern write that “[p]rogressives worried about losing Supreme Court protections for voting rights, reproductive rights, LGBTQ equality, affirmative action, and a whole lot more are now turning hopeful eyes to Susan Collins,” but they consider any faith in her misplaced. And in an op-ed for The New York Times, Linda Greenhouse asks, “If hostility to the Supreme Court’s 1973 precedent is a deal-breaker for Ms. Collins, how will she learn what the nominee really thinks? How will we the people know?”
At the Brennan Center for Justice, John Kowal observes that “replacing a very conservative justice with an even more conservative one won’t change the outcome in most cases.” But for The New York Times, Liam Stack and Elizabeth Dias report that, although much reaction to the Kennedy retirement has focused on the future of Roe v. Wade, “[t]he prospect of a more conservative justice, though, has L.G.B.T. rights groups worried about legal challenges from conservative groups that oppose gay marriage, who may see an opportunity to challenge rulings that have established its legality.”
At FiveThirtyEight, Amelia Thomson-DeVeaux looks at Kennedy’s jurisprudence, concluding that his “sweeping rhetoric on gay rights, combined with a handful of key votes with the liberals in controversial cases, overshadows his track record of conservative rulings on a wide range of other questions.” At Slate, Mark Joseph Stern maintains that “[p]rogressives who are surprised by Kennedy’s retirement bought into the myth that the justice, who occasionally swung left on key controversies like abortion and gay rights, was a moderate who dabbled in liberalism,” but that “[p]ut simply, Kennedy retired under Trump because he’s happy to leave his legacy in Trump’s hands.”
In an op-ed for The Orange County Register, Elizabeth Slattery argues that in National Institute of Family and Life Advocates v. Becerra, in which the court held that California’s Reproductive FACT Act, which requires crisis pregnancy centers to make disclosures, including about the availability of abortions, likely violates the First Amendment, “the court made clear that so-called ‘professional’ speech is simply that – speech – and it must be accorded the same level of respect granted to other protected activities.” At ThinkProgress, Zack Ford maintains that conservatives hope NIFLA “will be their key to overturning the laws in 13 states banning conversion therapy for minors.” Additional commentary on NIFLA comes from Jay Hobbs at CNS News.
- In an episode of Bloomberg Law’s Cases and Controversies podcast, Kimberly Robinson and Jordan Rubin “discuss this term’s divisive nature, and what’s likely to come next.”
- At Medium, Nick Lum points out that the South Dakota attorney general, who represented the state in South Dakota v. Wayfair, which cleared the way for states to tax internet purchases, admitted in an interview that he “has not been following the existing law by paying tax on his internet purchases.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
- Commentary on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled in favor of a baker who refused on religious grounds to make a cake for a same-sex wedding, comes from Jeremy Tedesco at Colorado Politics.
- In an op-ed for The Gospel Coalition, Barronelle Stutzman, a florist who declined on religious grounds to design flowers for a same-sex wedding, and whose case the Supreme Court sent back for reconsideration in light of Masterpiece Cakeshop, asserts that “[i]f the government can require us to create art and participate in sacred events, or take all we own and destroy us for declining to submit to its demands, then we aren’t really free.”
- At ThinkProgress, Ian Millhiser is less than thrilled to find that “Justice Clarence Thomas is the most important legal thinker of his generation, and the most significant judicial appointment of the last forty years.”
- In an op-ed for The Washington Post, Katrina vanden Heuvel argues that 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, is “part of a multifaceted, unrelenting assault on unions to weaken a central pillar of progressive reform.” [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.]
- At The George Washington Law Review’s On the Docket blog, Richard Pierce discusses the implications of Lucia v. Securities and Exchange Commission, in which the court held that SEC administrative law judges are ‘officers of the United States’ within the meaning of the appointments clause, who have to be appointed by the president, a court or a department head.
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