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Tuesday round-up

Coverage of Supreme Court nominee Judge Brett Kavanaugh’s extensive record in government and on the bench continues as reporters and commentators sift through Kavanaugh’s Senate Judiciary Committee questionnaire and other documents. For The Washington Post, Seung Min Kim and Robert Barnes report that “Kavanaugh’s years-old remarks questioning the landmark ruling that forced President Richard M. Nixon to turn over the Watergate tapes opened a new front in the battle over his confirmation, ensuring his views on executive power will square prominently in Senate hearings.” At The National Law Journal (subscription or registration required), Tony Mauro reports that the Senate questionnaire indicates that “[t]he White House reached out to … Kavanaugh within hours of U.S. Supreme Court Justice Anthony Kennedy’s announcement June 27 that he would soon retire,” timing that “appears to confirm indications that Kavanaugh was a top contender for the position well before Kennedy’s announcement.” At Politico, Josh Gerstein reports that “[m]ore details about Kavanaugh’s role in “Kenneth Starr’s independent counsel probe of President Bill Clinton two decades ago”] are expected to emerge in the coming weeks as an estimated 20,000 pages of Kavanaugh’s records from his time on Starr’s staff are processed for public release as part of the lead-up to his confirmation hearings.”

For The Los Angeles Times, David Savage reports that “[w]hile serving on the U.S. Court of Appeals for the District of Columbia, President Trump’s nominee for the Supreme Court has been a steady ‘no’ vote on climate change regulations.” At NPR, Nina Totenberg reports that “a Justice Kavanaugh would have a demonstrably less hospitable view of gun regulation” than retiring Justice Anthony Kennedy, whom Kavanaugh would replace. Adam Liptak observes in The New York Times that “there is every reason to think a Justice Kavanaugh would continue to press one of his old boss [Kennedy]’s signature projects: dismantling campaign finance laws that restrict the ability of people and groups to spend money to influence elections.” For The National Law Journal, Tony Mauro looks at “several amicus briefs [Kavanaugh] wrote for conservative clients while in private practice.”

In an op-ed for USA Today, Eugene Scalia maintains that “Kavanaugh’s interest in administrative law tells us that he is intensely engaged with questions that arise constantly in his current court and at the Supreme Court, … that he is thinking about the roles of Congress, the executive branch, and the courts in regulating our daily lives. …. [and that h]e’s asking questions that concern our liberty and our ability to participate as citizens in the development of the law.” At Townhall, Guy Benson explains that “Kavanaugh very explicitly does not claim that presidents are above the law, he does not believe they shouldn’t be investigated, and he does not believe special counsels are unconstitutional or shouldn’t exist.” At Reason’s Volokh Conspiracy blog, Ilya Somin observes that “Kavanaugh’s views on both Nixon and executive power generally are well worth investigating, and the Senate should definitely ask about these matters during his confirmation hearings.”

At National Review, Hadley Arkes outlines a way in which “the Conversation/Argument over abortion at the [confirmation] hearings can actually be brought to an end.” In an op-ed for the Los Angeles Times, Michael Wear urges that “to the extent the Kavanaugh hearings are going to be a policy referendum, let’s be sure the nation hears from a party that is interested in more than just the fate of Roe vs. Wade.” In an op-ed for The Wall Street Journal, Liel Leibovitz is dismayed “to see the [Anti-Defamation League] release a statement denouncing Judge Brett Kavanaugh minutes after President Trump announced his nomination to the Supreme Court,” arguing that “[b]y focusing increasingly on the battles of the Democratic Party, and by weighing in on matters far removed from its traditional mandate, the ADL is leaving American Jews behind.” The editorial board of The New York Times worries that “[u]nder Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively” if Kavanaugh is confirmed.


  • Lyle Denniston reports for Constitution Daily that, asked to take action in “an Oregon case that is all about America’s environmental future” “[j]ust days before retiring, Justice Anthony M. Kennedy is facing a question that has been quite familiar in his 30-year career on the Supreme Court: Is it time to recognize a new and fundamental constitutional right?”
  • For the ABA Journal, Mark Walsh reports that the justices “saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.”
  • Gary Gately reports for Talk Media News that “[a] conservative Washington law firm best known for scoring a narrow U.S. Supreme Court victory in the 2014 ‘Hobby Lobby’ case is preparing to ask the high court to review a New Jersey Supreme Court decision barring churches from receiving taxpayer-funded historic-preservation grants.”
  • At Good Judgment, Ryan Adler recaps the crowd’s performance in forecasting Supreme Court outcomes last term, noting that a record of “[e]ight, four, and one would be respectable in many sports leagues.”
  • At Balkinization, Marty Lederman explains why “[t]he most striking thing about Justice Alito’s majority opinion” in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court overruled a 41-year old case to hold that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, “is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction ‘abridges’ anyone’s actual speech.” [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 Penn Journal on Regulation’s Regulatory Review, Sarah Paoletti maintains that “[d]ue to th[is term’s] ruling [in Jennings v. Rodriguez, in which the court held that immigration-law provisions do not give detained aliens a right to periodic bond hearings,] immigrants may end up with even fewer opportunities to obtain judicial review of long-term detentions.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jul. 24, 2018, 7:39 AM),