Breaking News

Tuesday round-up

Today’s Supreme Court news will emanate from Capitol Hill, where the Senate Judiciary Committee’s confirmation hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy kicks off today at 9:30 a.m. At NPR, Nina Totenberg reports that the “almost-week-long hearing will have both more and less drama than Neil Gorsuch’s last year — more because Kavanaugh has a longer record in public life and a paper trail to match, and less because the Republicans changed the Senate rules last year to allow confirmation with a simple majority, instead of 60 votes,” and she provides a “crib sheet highlighting five of the issues that will come up this week.” More previews of the hearing come from Brent Kendall for The Wall Street Journal, Byron Tau, also for the Journal, Lisa Mascaro at the Associated Press, Steven Mazie at The Economist’s Espresso blog, Sheryl Gay Stolberg for The New York Times, Robert Barnes for The Washington Post, Emily Cochrane for The New York Times, and Richard Wolf for USA Today, who also highlights the “five major controversies” surrounding the nomination here.

For The New York Times, Carl Huse calls the hearing ”a contentious but predictable Supreme Court showdown under a judicial confirmation process that appears to be almost irreversibly damaged and polarized.” For The Washington Post, Robert Barnes identifies “[t]wo factors [that] animate U.S. Appeals Court Judge Brett M. Kavanaugh’s crucial Supreme Court confirmation hearings that begin Tuesday in the Senate: … the justice he would succeed, and … the president who chose him.” For The New York Times, Adam Liptak explains that “that President Trump’s pick of Judge Kavanaugh could remake the court” because “[h]is confirmation would result in a rare replacement of the court’s swing justice, moving Chief Justice John G. Roberts Jr. — a much more reliably conservative vote than Justice Kennedy — to the court’s ideological center.” For The Washington Post, Michael Kranish harks back to the 2004 hearing on Kavanaugh’s nomination to the court of appeals, noting that “Democrats are still searching for a strategy that could stop his ascension to the highest court.”

Subscript Law offers a graphic explainer for Kavanaugh’s jurisprudence that “outline[s] his career and judicial decisions” and “illustrate[s] how they correspond with ‘conservative’ views by bringing in the findings of a set of surveys.” At Yahoo!News, Kate Murphy looks at “where Kavanaugh stands on some key issues.” At Tatter (podcast), Michael Sargent offers “the second of two episodes focused on Kavanaugh’s record and thinking, and the impact his addition would likely have on the Court.” At Circuit Breaker, Katie Barlow observes that a “review of audio recordings of D.C. Circuit arguments over Kavanaugh’s judicial career suggests that his comments during arguments frequently foreshadow how he plans to rule.”

For The Boston Globe, Lisa Mascaro reports that “[t]he Trump administration is withholding more than 100,000 pages of Brett Kavanaugh’s records from the Bush White House on the basis of presidential privilege ahead of the Supreme Court nominee’s confirmation hearing.” At NBC News, Leigh Ann Caldwell reports that “Sen. Amy Klobuchar, D-Minn., who sits on the Judiciary Committee that will question Kavanaugh, said Sunday that the process of the nomination has not been ‘normal.’” Brett Samuels at The Hill reports that Klobuchar “suggest[ed] that some of the withheld information could change the course of his confirmation proceedings.” For The Washington Post, Fred Barbash and Seung Min Kim report that “[h]ours before the start of [the] hearings … , the lawyer for former president George W. Bush turned over 42,000 pages of documents from the nominee’s service in the Bush White House, angering Senate Minority Leader Charles E. Schumer, who issued what is certain to be a futile call to delay the proceedings.” Additional coverage comes from Jess Bravin at The Wall Street Journal.

At Politico, Elana Schor reports that “the Democratic senators [Kavanaugh will] face are under intense pressure of their own — to make the best of a bleak political predicament.” Jordain Carney reports at The Hill that “Sen. Dianne Feinstein (D-Calif.) is under intense pressure heading into Brett Kavanaugh’s Supreme Court confirmation hearing.” At Politico, Steven Shepard looks at a new poll showing that “[a] plurality of voters support confirming … Kavanaugh on the eve of [the] hearings.”

At The Atlantic, Garrett Epps considers Kavanaugh’s “sole opinion on the issue of choice, a 2017 dissent in Garza v. Hargan,” and remarks that “[a]n over-arching commitment to protecting his own viability seems to me one of the keys to understanding Kavanaugh’s jurisprudence.” At Reason’s Hit & Run blog, Damon Root lists “five matters that I would like to hear Kavanaugh address as he faces the Senate Judiciary Committee in the coming days.” At Truthdig, Bill Blum fears that “Kavanaugh’s confirmation will mark the triumph of a conservative legal counterrevolution aimed at neutralizing the use of law as an instrument of progressive social and economic reform.” The editorial board of The Wall Street Journal asserts that “[t]he real reason Democrats are furious about a Court with five conservatives is that it may no longer be an engine of progressive policy.”

In an op-ed for The Washington Post, Charles Lane suggests that Kavanaugh’s “opinion on the individual mandate … provides hope that he at least understands the costs — legal and, yes, political — of precipitous judicial action.” At Slate, Richard Hasen writes that “[d]ocuments released ahead of Kavanaugh’s confirmation hearings this week that date from his time in George W. Bush’s White House reveal that the judge just might be ready to strike down what’s left of federal law limiting contributions to candidates, as a First Amendment violation,” and that “[t]here are two cases heading to the Supreme Court that would allow him to do just that.”

The editorial board of The Washington Post urges Kavanaugh to “break [the] trend” of refusing to provide substantive answers at Supreme Court confirmation hearings, “because the stonewalling is rendering irrelevant the most visible public opportunity to vet nominees for a lifetime appointment to the nation’s highest court” and “because Mr. Kavanaugh has a record that compels him to speak substantively.” In an op-ed for The Wall Street Journal, David Rivkin and Andrew Grossman maintain that if Kavanaugh declines to answer “questions on legal issues that might come before the Supreme Court,” “[i]t’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide.”


  • At the Associated Press, Jessica Gresko notes “the publication this coming week of two new autobiographical books [by Justice Sonia Sotomayor], this time aimed at children.”
  • At SCOTUS OA, Tonya Jacobi and Matthew Sag explain that “if you want to know whether a justice is likely to dissent in a case, you need only listen carefully to how much they talk at oral argument and compare it to how often they ordinarily talk,” and that “[t]he most talkative justices will, on average, be those who ultimately dissent.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Sep. 4, 2018, 7:16 AM),