SCOTUS, Trump & the US courts July 2018 – April 2020

Written by  //  April 9, 2020  //  Justice & Law, U.S.  //  Comments Off on SCOTUS, Trump & the US courts July 2018 – April 2020

See also: SCOTUS and the US courts 2017-18
2019 Year-End Report on the Federal Judiciary

9 April
The Supreme Court Fails Us
The five conservative justices refused to extend the deadline for absentee ballots in Wisconsin in the middle of the pandemic
(NYT) In more than four decades of studying and writing about the Supreme Court, I’ve seen a lot (and yes, I’m thinking of Bush v. Gore). But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Let’s think about that. “Ordinarily not alter”?
There are quite a few things that should not ordinarily be happening these days. People shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.
Frank Rich: John Roberts’s Wisconsin Shame
The hasty decision of the Roberts court that got us here is just the latest in his string of assaults on black voters. In his majority opinion in Shelby County v. Holder, the 2013 decision that castrated the 1965 voting rights law, he explained that its full protections were no longer needed because the “country has changed.” Three years later, the country would make a mockery of his jurisprudence by electing a white nationalist president. Since then, state and local laws attempting to suppress and purge minority voters by imposing obstacles between them and the voting booth have been nonstop. Now we have a killer virus, in league with the Roberts and Trump–endorsed efforts to suppress voting by mail, that literally compels voters who choose liberty to risk potential death. If this attack on voting rights is not thwarted during a pandemic, November will not only bring an illegitimate election but national divisions that will make the current civic fractures look relatively serene.

7 April
The Supreme Court’s Wisconsin Election Decision Is 2020’s Bush v. Gore
RBG’s dissent claims her colleagues are operating in “good faith.” She’s wrong.
(Slate) On Monday evening, two different courts issued two disastrous decisions, a one-two punch that has forced countless Wisconsin voters to choose between their health and their voting rights in Tuesday’s election. First, the Wisconsin Supreme Court overruled Gov. Tony Evers’ order postponing the election, restoring in-person voting on Tuesday in the midst of a pandemic. Hours later, the U.S. Supreme Court effectively nullified tens of thousands of absentee ballots that won’t be returned until after the election—not because voters forgot, but because election officials did not mail them out in time.
Without calling into question “the good faith of my colleagues,” Ginsburg wrote that the majority’s decision “will result in massive disenfranchisement.” But when five Republican-appointed justices nullify “tens of thousands” of votes in an unsigned eleventh-hour order, is there really no reason to doubt their good faith? Even when their act is likely to favor Republicans?
Perhaps, taken in isolation, the majority’s decision can be defended as a grievous mistake motivated not by partisanship but a misunderstanding of the facts. After all, it includes at least one error—an assertion that the plaintiffs never asked for the ability to return ballots after April 7, a claim that Ginsburg debunked. But Monday’s decision cannot be taken in isolation. It is the latest in a long line of rulings by the Roberts court that blatantly favor Republican interests by allowing the GOP to suppress Democratic votes. In recent years, the conservative majority has gutted the Voting Rights Act, allowing mass poll closures, racial gerrymandering, and draconian voter ID laws. It has greenlighted voter purges and closed the federal courthouse door to partisan gerrymandering cases. Its redistricting decisions permitted Wisconsin’s Republicans to maintain their legislative majority even when they receive fewer votes, a majority they used to preserve Tuesday’s election.
Both decisions were issued by conservative judges; both will help Republicans suppress legitimate votes. Taken together, they are the Bush v. Gore of 2020, a flagrant judicial heist that renders Tuesday’s election a sham.
There is no real doubt that holding the election during a pandemic will decrease Democratic turnout. In disproportionately Democratic urban centers such as Milwaukee, election officials have been forced to shutter the vast majority of polling places because poll workers refused to show up for fear of infection.
Wisconsin’s debacle may be the most infuriating of the coronavirus failures
Justice Ruth Bader Ginsburg, in a dissent joined by the three liberal justices, called out the majority’s approach for what it was. “The court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind,” she wrote.

2 March
The Supreme Court just reminded us why this election is an emergency
 If President Trump wins reelection, it is highly likely that Justices Ruth Bader Ginsburg (age 87 in a couple of weeks) and Stephen Breyer (age 81) will retire because of illness or age, Paul Waldman writes.
At that point there would be a 7-2 conservative majority on the court.
(WaPo) We just got a reminder of the stakes of the 2020 election in an area that almost no one has paid attention to in this campaign.
Supreme Court’s Obamacare review cheers Democrats with election year health-care focus
The Supreme Court on Monday said it will review the latest Republican efforts to doom the Affordable Care Act, guaranteeing that partisan battles over health care will remain at the forefront of public debate in the closing weeks of the presidential campaign.

1 March
George Conway: Trump made a baseless attack on two Supreme Court justices. Here’s why he did it.
Trump persists in his assault on judges for essentially the reason he continues to attack the media: to discredit and demean the courts, so that when they rule against him, no one will believe, or perhaps obey, them.
In doing so, he attacks more than individual judges; he shows contempt for the rule of law. It is a dangerous thing for country to have a man whose office charges him with faithfully executing the law instead so brazenly seek to undermine respect for it.

25-26 February
Trump unbound: President escalates attacks on the courts — and reporters do stenography
Trump’s attack on two female Supreme Court justices was grotesque and abnormal. Why won’t reporters even say so?
(Salon) They quoted Trump at length, explaining that he was demanding that Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from cases involving him or his administration.
As if that was something the president could reasonably demand!
Trump Demands 2 Liberal Justices Recuse Themselves From His Cases
The president ratcheted up a fight with a judicial system he sees as biased against him.
(NYT) Weighing in on a domestic matter on a day of ceremony and meetings in India, Mr. Trump seized on an opinion by Justice Sonia Sotomayor and a years-old comment by Justice Ruth Bader Ginsburg to demand that the two Democratic-appointed jurists recuse themselves from any cases involving him.
“‘Sotomayor accuses GOP appointed Justices of being biased in favor of Trump,’” he wrote on Twitter, citing Laura Ingraham of Fox News. “This is a terrible thing to say. Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related, matters!” …
The justices are highly unlikely to comply with Mr. Trump’s latest demand that they recuse themselves from the many cases involving him that come before their court. But the president’s attack raised the temperature of his continuing assault on the law enforcement and justice systems, which he has tried to bend to his will in increasingly bold ways.

21 February
Sonia Sotomayor Just Accused the Supreme Court’s Conservatives of Bias Toward the Trump Administration
(Slate) On Friday evening, by a 5–4 vote, the Supreme Court allowed the Trump administration’s wealth test for immigrants to take effect in Illinois. All four liberal justices dissented from the order, which changes relatively little: Thanks to the conservative justices’ intervention in January, the wealth test was poised to take effect in 49 states, and Friday’s vote lets the government apply it in the last state left. What’s most remarkable about the decision is Justice Sonia Sotomayor’s withering dissent, which calls out—with startling candor—a distressing pattern: The court’s Republican appointees have a clear bias toward the Trump administration.
Trump’s wealth test marks a brazen attempt to limit legal immigration by forcing immigrants to prove their financial status to enter, or remain in, the United States. It goes far beyond any statute passed by Congress, forcing immigrants to demonstrate that they will be not a “public charge”—that is, they won’t rely on any public assistance, including Medicaid, housing vouchers, and food stamps. Because the policy departs so dramatically from federal law, several courts blocked its implementation in 2019. In January, however, the Supreme Court allowed the wealth test to take effect over the dissent of all four liberals. The majority did not explain its reasoning. But Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurrence complaining that a district court had blocked it across the country, decrying the “rise of nationwide injunctions.”

4 February
A Republic, If We Can Keep It
The government set up by James Madison and the other Founders requires a virtuous public and virtuous leaders—or the whole system will fail.
Adam J. White, Resident scholar at the American Enterprise Institute
(The Atlantic) In the days leading up to the Senate’s impeachment trial, some people hoped that Chief Justice John Roberts, presiding over the trial, would use his position to send a strong message to the senators on what the Constitution requires of them. He had, in fact, already sent such a message, just weeks earlier, on what the Constitution requires of all Americans. On December 31, in a letter accompanying his annual report on the work of the federal courts, Roberts called on federal judges—and everyone else—to invest themselves in the preservation of constitutional democracy.
“Each generation,” he wrote, “has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.” For Roberts, this requires civic education—and something more fundamental than that, too.

27 January
U.S. Supreme Court allows Trump’s ‘public charge’ immigration curb
(Reuters) – The U.S. Supreme Court gave the go-ahead on Monday for one of President Donald Trump’s hardline immigration policies, allowing his administration to implement a rule denying legal permanent residency to certain immigrants deemed likely to require government assistance in the future.
The justices, on a 5-4 vote, granted the administration’s request to lift a lower court’s injunction that had blocked the so-called public charge policy, which has been criticized by immigrant rights advocates as a “wealth test” that would disproportionately keep out non-white immigrants.
The court’s five conservative justices, including Chief Justice John Roberts, carried the day. The court’s four liberal justices said they would have denied the administration’s request to put the injunction on hold. The action was announced even as Roberts sat as the presiding officer in Trump’s impeachment trial in the U.S. Senate.

23 January
John Roberts comes face to face with the mess he made
(WaPo) As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.
Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.
The Roberts Court’s decisions led to this moment in indirect ways, as well. The court’s 2013 ruling in Shelby County gutted the Voting Rights Act and spurred a new wave of voter suppression. The decision in 2014′s McCutcheon further surrendered campaign finance to the wealthiest. The 2018 Janus decision hobbled the ability of labor unions to counter wealthy donors, while the 2019 Rucho ruling blessed partisan gerrymandering, expanding anti-democratic tendencies.


30 December
Ed Kilgore: My 2020 Existential Dread
(New York) A series of Supreme Court cases might reach fruition in the course of the year with fraught consequences, including June Medical Services LLC v. Gee, which could mark the beginning of the end for federally guaranteed reproductive rights; two cases that will determine whether federal anti-employment-discrimination laws protect LGBTQ folk working in the private sector; and a number of decisions (appearing to grow every day) concerning Trump’s aggressive use of executive powers, including his efforts to kill DACA protections for Dreamers. And the composition of the Court itself — with a current 5-4 conservative majority feeling its way toward a potential counterrevolution in constitutional law — could be changed by a death, disability, or retirement during 2020.

6 December
SCOTUS snubs Trump administration’s execution plans
(Politico) The Trump administration’s plans to resume federal executions next week for the first time in over 16 years were scuttled Friday night after the Supreme Court turned down the Justice Department’s emergency bid to lift a lower-court order blocking the plan.
The high court’s order came with officials pressing to carry out the first execution by lethal injection Monday at the U.S. Penitentiary in Terre Haute, Ind. One more had been scheduled for the following Friday with two others set to follow next month.

26 November
As Trump cases arrive, Supreme Court’s desire to be seen as neutral arbiter will be tested
(WaPo) The legal cases concerning President Trump, his finances and his separation-of-powers disputes with Congress are moving like a brush fire to the Supreme Court, and together provide both potential and challenge for the Roberts court in its aspiration to be seen as nonpartisan.
The court, composed of five conservatives nominated by Republican presidents and four liberals chosen by Democrats, has little choice but to step onto a fiercely partisan battleground.
It announced Tuesday that it will consider on Dec. 13 whether to schedule a full briefing and argument on the president’s request that it overturn a lower-court ruling giving New York prosecutors access to Trump’s tax returns and other financial records in their investigation of ­hush-money payments in the lead-up to the 2016 election.

12 November
Divided Supreme Court leans toward allowing Trump to end DACA
(The Hill) The Supreme Court on Tuesday was sharply divided over President Trump‘s move to end Obama-era protections for immigrants who arrived in the U.S. illegally as children, as the justices heard oral arguments in one of the most closely watched cases of the term.
Members of the court’s conservative wing appeared wary of allowing the court to review the administration’s decision to begin phasing out the Deferred Action for Childhood Arrivals (DACA) program, which grants deferral from deportation to nearly 700,000 young adult immigrants without legal status.
And questions from conservative justices during oral arguments suggested they appeared to think the administration had supplied legally sound reasons for eliminating DACA.
Justice Neil Gorsuch, a Trump appointee, and Justice Samuel Alito, a George W. Bush appointee, seemed concerned that authorizing a review could give judges too much power over executive agency decisions.

7 October
Abortion, Guns And Gay Rights On The Docket For Supreme Court’s New Term
(NPR) The Supreme Court may be eager to portray itself as an apolitical institution. But this term, political questions writ large are knocking at the high court door.
The upcoming term will almost surely be a march to the right on almost every issue that is a flashpoint in American society. Among them: abortion, guns, gay rights, the separation of church and state, immigration and presidential power.
Also headed to the court are cases testing the power of Congress to get information from the executive branch and elsewhere, information that is relevant to congressional oversight and potentially, to impeachment.
Clearly, President Trump had something like that in mind when he said of the current impeachment inquiry, “It shouldn’t be allowed. There should be a way of stopping it, maybe legally through the courts.”
And if that isn’t enough, pending before the court is a sleeper case testing the very structure of our presidential election system.

4 October
Watch Out, America — The Supreme Court Is Back in Session
And conservatives could be the big winners.
(NYT editorial) On Monday, the Supreme Court will begin hearing cases in its first complete term since the retirement of Justice Anthony Kennedy, and the confirmation of Justice Brett Kavanaugh, gave the court a newly emboldened right-wing majority.
The current five-member bloc has already started overturning decades-old precedents and remaking the law in ways that align remarkably well with conservative policy preferences.
The new term offers no shortage of opportunities for the conservative justices to block or roll back rights for certain groups — for example, women, L.G.B.T. people and undocumented immigrants brought to America as children — while bolstering rights for others, like gun owners and those who would knock down the crumbling wall between church and state.
In one of the most hotly anticipated cases, to be argued Tuesday, the justices will consider whether employers may fire employees for being gay or transgender.

16 September
Another Obstacle for Climate Action: A Conservative Supreme Court
By Ed Kilgore
(New York) Without question, progressives are waking up to the strong possibility that a second Trump term with an aging Court will likely produce a reversal of many key constitutional precedents, particularly those involving reproductive rights, voting rights, and corporate regulation. The composition of SCOTUS could be (and most definitely ought to be) a serious voting issue for Democrats as well as Republicans next year.
But until now nobody’s talked a lot about the Court as a potential stumbling block to increasingly urgent efforts to stop — and, if possible, reverse — climate change. As the Washington Post’s Greg Sargent explains, that could change thanks to an academic study of conservative legal thinking and how it might collide in the Supreme Court with legislation like the proposed Green New Deal:

14 September
Kavanaugh accused of more unwanted sexual contact by former classmate: report
(The Hill) The New York Times reported Saturday that the latest allegation, which has until now not been public, was reported to the FBI during Kavanaugh’s Supreme Court confirmation process last year but was not investigated by the FBI.
Brett Kavanaugh Fit In With the Privileged Kids. She Did Not.
Deborah Ramirez’s Yale experience says much about the college’s efforts to diversify its student body in the 1980s.
(NYT) Mr. Kavanaugh’s confirmation hearings were wrenching, as he strained to defend his character after Dr. Ford’s searing testimony. Thousands of miles away, Ms. Ramirez, who was never asked to testify, also found the hearings distressing. … Ms. Ramirez’s legal team gave the F.B.I. a list of at least 25 individuals who may have had corroborating evidence. But the bureau — in its supplemental background investigation — interviewed none of them, though we learned many of these potential witnesses tried in vain to reach the F.B.I. on their own.
Robin Pogrebin and Kate Kelly are the authors of “The Education of Brett Kavanaugh: An Investigation.”

6 September
The Supreme Court has become just another arm of the GOP
By Sheldon Whitehouse, Democrat, represents Rhode Island in the U.S. Senate
Republicans and their big donors now see the court as part of their team. They can achieve political gains there that they cannot win in Congress. The supposedly apolitical nature of the court partly protects these political gains from critique. And after 73 partisan victories, they’ve had a hell of a run. That explains why our brief provoked such an outcry from their side.
‘Everything conservatives hoped for and liberals feared’: Neil Gorsuch makes his mark at the Supreme Court
Some justices ascend to the Supreme Court quietly, deferring to their elders and biding time before venturing out too far to offer their own views of the law.
Justice Neil M. Gorsuch, on the other hand, appears to have been shot from a cannon.
At his inaugural oral argument in April 2017, President Trump’s first choice for the Supreme Court asked 22 questions. In the term just completed, Gorsuch wrote more dissents than any other justice and typed out a whopping 337 pages of opinions. Again, more than anyone else.
Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service members in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues.

17 July
John Paul Stevens Dissented Until the End
By Jesse Wegman
(NYT) He was a Republican jurist nominated by a Republican president, but by the time he stepped down, he had become the leader of the court’s liberal wing
Justice Stevens, who died on Tuesday at 99, stepped down from the bench in 2010 — but even after serving for more than three decades, he never seemed entirely finished with the job.
In the nine years of his retirement, he remained engaged in the nation’s civic life, as well as in its most fraught legal debates. He wrote essays, opinion pieces and books for the general public, including one that called for several amendments to the Constitution. He toured the country giving speeches. And he spoke out against rulings by the court — those he had participated in and some he hadn’t.
… When Justice Stevens joined the court in 1975, it was an all-male, nearly all-white institution. The justice he replaced, William O. Douglas, had been picked by President Franklin Roosevelt. Justice Stevens’s confirmation by the Senate came less than three weeks after President Gerald Ford nominated him. The vote was unanimous, a scenario as unimaginable today as it was unremarkable then.
Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99

29 June
Thomas Mann: For partisan gerrymandering reform, the federal courts are closed
(Brookings) In a 5-4 decision in Rucho v. Common Cause, the Supreme Court ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. This came as no surprise to close observers of the half-century of litigation that proceeded it. While the Court had long acknowledged the possibility (even sometimes the likelihood) of constitutional violations from partisan gerrymandering, it was openly skeptical of identifying a workable standard (one grounded in a “limited and precise rationale” and “clear, manageable, and politically neutral”) for courts to use in resolving such claims.
The two consolidated cases were strong. Both gerrymanders were egregious. One, affecting the entire state delegation in Congress, was crafted by Republicans in North Carolina; the other, centered on a single congressional district, by Democrats in Maryland. Plaintiffs applied a three-part test, examining intent, effects, and causation, and marshaled considerable evidence that the discriminatory effects in these two plans could not be due to legitimate redistricting objectives. They utilized the work of scholars who had risen to the challenge issued years earlier by Justice Anthony Kennedy to develop workable and neutral standards. In her dissent, Justice Elena Kagan provides a clear, understandable explanation of how big data and computer simulations can convincingly identify redistricting outliers. Plaintiffs acknowledged that redistricting is inherently political and limited their remedial attention to only the most extreme cases. It’s hard to imagine a more powerful case or a more compelling constitutional argument for the Court to enter this political thicket than that contained in Justice Kagan’s dissent.
… Two final thoughts. First, partisan gerrymandering is more a consequence than a cause of polarization. It is an affront to our democracy (one of many) and now also a weapon in the war underway between the parties for control of national and state government.
Second, our single-member, first-past-the-post electoral system naturally underrepresents residents clustered in large metropolitan areas. This obstacle to fair representation facing Democrats is much more serious than partisan gerrymandering.

They’re not ‘wonder twins’: Gorsuch, Kavanaugh shift the Supreme Court, but their differences are striking
(WaPo) According to data compiled by Adam Feldman, who runs the website Empirical SCOTUS , Gorsuch and Kavanaugh have disagreed more than any pair of new justices chosen by the same president in decades.
Kavanaugh was about as likely to be in sync with his liberal seatmate Elena Kagan as his fellow conservative Gorsuch, Feldman’s research shows.
According to Feldman’s numbers, rookie Kavanaugh was in the majority more than any other justice, with Roberts in second place. Gorsuch was at the bottom, with the court’s liberals and the iconoclastic Justice Clarence Thomas, a conservative who specializes in dissent. … At times, they seem to be walking in the shoes of the men they replaced: the late conservative Antonin Scalia in Gorsuch’s case, the more moderate Kennedy for Kavanaugh.
The differences between Gorsuch and Kavanaugh might be more noticeable because the term was without many contentious political disputes. In the two that mattered on the last day of the term, gerrymandering and the census, they were together.
Also, there were plenty of odd coalitions this term. According to Feldman’s statistics, every conservative member of the court at some point voted to form a majority with the liberal justices. And every liberal at least once left behind all of his or her usual voting partners to join the conservatives.

27 June
As Bad as Citizens United
By Steve Israel, Former Democratic congressman from New York and Zach Wamp, Former Republican congressman from Tennessee
(The Atlantic) Today’s Supreme Court ruling that the Constitution doesn’t bar even extreme partisan gerrymandering is the worst election-related decision since Citizens United, which in 2010 opened the floodgates for corporate money in campaigns. The Court just stacked the deck in favor of parties over voters—and laid the groundwork for yet more polarization.
Most congressional districts are not competitive. Right now, according to The Cook Political Report, of the 435 districts in the House, only 21 are true “toss-ups,” whereas 344 are considered safe seats. (The rest lean in one direction or the other.) In this climate, electoral survival means aligning with base voters to protect your flank, left or right. Compromise isn’t a virtue; it’s an invitation to a primary.
The good news is that the process is being corrected at the state and local levels.
Grassroots efforts have persuaded several states to adopt better redistricting standards. Arizona, California, Hawaii, Idaho, Iowa, Montana, New Jersey, and Washington all currently have independent or nonpartisan redistricting rules in place. Colorado, Michigan, Missouri, Ohio, and Utah will have either commissions or new practices ready for the next round of redistricting.
Still, today’s Supreme Court decision is an enormous setback; the conservative majority has given a green light to partisan gerrymandering in every state that has not acted independently to curb this activity.

17 June
SCOTUS Just Killed Off Virginia’s Racial Gerrymander. Its Decision Will Affect Elections for Years to Come.
(Slate) The Virginia House of Delegates’ racial gerrymander is officially dead—killed off by a 5–4 Supreme Court ruling on Monday that seems to clear the way for a potential Democratic sweep of the Virginia Legislature in November.
Although Monday’s decision in Virginia House of Delegates v. Bethune-Hill slays a gerrymander, it revolves around a more mundane issue: Who has the ability to defend that gerrymander in federal court? When Virginia voters first filed a lawsuit alleging that multiple House districts were drawn illegally along racial lines, the state attorney general defended the map. Eventually, a federal court found “overwhelming evidence” that the state had “sorted voters into districts based on the color of their skin,” violating “the guarantees of the Equal Protection Clause.” It appointed a special master to redraw 11 House districts and adopted his proposals, ordering the House to adopt his new map for the 2019 election.
Ginsburg’s opinion was joined by Justices Sonia Sotomayor, Elena Kagan, Clarence Thomas, and Neil Gorsuch.
Supreme Court rules in case watched for impact on Trump pardons
(Politico) In a 7-2 ruling, the justices declined to disturb a longstanding legal principle known as dual sovereignty, which allows state governments to bring their own charges against defendants already tried or convicted in federal court, or vice versa.
The decision drew separate dissents from justices at opposite ends of the court’s ideological spectrum: liberal Ruth Bader Ginsburg and conservative Neil Gorsuch.
Fordham University law professor Jed Shugerman told POLITICO that the Gamble decision will have “no real impact on Trump cases.” Manafort is still facing state prosecutions in New York and Virginia, which have their own jeopardy rules, he noted. And former national security adviser Michael Flynn’s guilty plea to one count of making false statements to the FBI was limited to federal law, Shugerman said. The same appears true of Roger Stone’s prosecution on false statement and witness tampering charges, he added.

27 May
Is Justice Brett Kavanaugh As Bad As Democrats Feared?
(New York) … as this potentially pivotal Supreme Court term unfolds, what have we learned about Justice Kavanaugh and the impact he’ll have on constitutional law and Americans’ lives? Does he represent the tipping point for a conservative majority on the Court that will soon begin toppling cherished precedents? Or will he instead, as some expect, operate cautiously, perhaps aligning himself with Chief Justice Roberts as a sort of center-right ballast that ensures the right’s revolution from above moves at a deliberate but not precipitous pace?
He’s solidly conservative
He’s a career conservative Republican who knows how to play the partisan game in the ostensibly nonpartisan world of the federal courts. Nothing in his record as a circuit court judge from 2006 until 2018, or his moves on the Supreme Court, betray any signs of rebellion.
He’s typically cautious and reserved
Kavanaugh is known as a clear and logical legal thinker who avoids sweeping pronouncements or stylistic excesses. The New York Times’ Adam Liptak recently argued that in this regard, Kavanaugh has distinguished himself to a significant degree from Trump’s other appointee, Neil Gorsuch: “Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court.”
He’s a constitutional “originalist”
As he has made very plain as a judge and in other venues …, Kavanaugh follows the late Justice Antonin Scalia in strongly believing that the judicial branch’s role is to follow the original intent of the Founders without extending constitutional rights beyond their express provisions. … Kavanaugh’s not going to become a pioneering First Amendment champion like Kennedy if it means embracing an expansive view of civil liberties and the judiciary’s role in articulating them.
He’s no defender of reproductive rights
Even if it wasn’t evident from his service to cultural conservatives like Starr and Bush, or his Federalist Society affiliation, or his Roman Catholic faith, or his fondness for Scalia and Rehnquist, Kavanaugh has sent reasonably clear signals of his disdain for a woman’s right to choose abortion.
He believes in strong executive powers
This assessment from SUNY-Albany law professor Julie Novkov seems fair::
“Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.” … “While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.”
He may be ready to buck Supreme Court precedent
With the Supreme Court having an ever-expanding smorgasbord of state abortion restrictions to choose from if it wishes to reverse or modify Roe and Casey, Kavanaugh could indeed have the chance to add a crucial vote to a counter-revolutionary step back toward criminalized abortion. In this and other areas of constitutional law, this new and controversial justice will have an opportunity to leave his mark on all of us.

12 May
Kavanaugh and Gorsuch, Justices With Much in Common, Take Different Paths
By Adam Liptak
(NYT) On the Supreme Court, they were widely expected to be jurisprudential twins. But it turns out that there is more than a little daylight between Justice Neil M. Gorsuch, who joined the court in 2017, and Justice Brett M. Kavanaugh, who started in October after facing accusations of sexual assault, which he denied, at his confirmation hearings.
“They’re disagreeing more than we would have expected,” said Jonathan H. Adler, a law professor at Case Western Reserve University. The two justices have found themselves on opposite sides in quite a few cases, including ones involving the death penalty, criminal defendants’ rights and Planned Parenthood.
Justice Kavanaugh has not yet completed a full term, and the court’s biggest decisions — on religious monuments, partisan gerrymandering and adding a citizenship question to the census — are yet to come. Neither of the newest justices is likely to disappoint his conservative supporters in those blockbuster cases.
But there is more to the Supreme Court’s work than the handful of big decisions issued at the end of June. It must also decide which cases to hear, how broadly to decide them and on what basis. In all three areas, the two justices appointed by Mr. Trump have taken different paths, with Justice Gorsuch for now veering further to the right.


10 October
Chief Justice Roberts asks federal judges to handle Kavanaugh ethics complaints
(PBS Newshour) The complaints deal with statements Kavanaugh made during his confirmation hearings. They were filed originally with Kavanaugh’s old court, the U.S. Court of Appeals for the District of Columbia Circuit.
Roberts took no action on them while Kavanaugh’s nomination was pending. He received the first three of 15 eventual complaints on Sept. 20, a week before Kavanaugh’s angry denial of a sexual assault allegation by Christine Blasey Ford.
The judiciary’s rules allow members of the public to lodge complaints about federal judges. They typically are dealt with by experienced judges in the courthouse or region where a judge serves. Judges who receive complaints have a range of options that include dismissing them out of hand, having local judges investigate them or asking Roberts, in his capacity as head of the federal judiciary, to assign the complaints to judges in a different part of the country.
Merrick Garland, the chief judge of the D.C. Circuit, typically deals with ethics complaints, but he apparently stepped aside from complaints against Kavanaugh.

9 October
Justice Kavanaugh’s Law Clerks Are All Women, a First for the Supreme Court
(NYT) Justice Brett M. Kavanaugh, confirmed to the Supreme Court amid fiery accusations of sexual misconduct against women, arrived Tuesday for his first day on the bench with an unprecedented all-female class of law clerks.
As a result, more than half of the Supreme Court’s law clerks this year will — for the first time in American history — be women.
Former colleagues of Justice Kavanaugh have described a longstanding reputation of promoting women in law. During his 12 years at the United States Court of Appeals for the District of Columbia Circuit, the majority of Justice Kavanaugh’s law clerks were women — 25 of 48 — and during his confirmation hearings he testified that he graduated more of them to clerkships at the Supreme Court than any other federal judge.

8 October
Kavanaugh sworn in again during ceremonial event at White House
U.S. Supreme Court Justice Brett Kavanaugh was sworn in again, for the cameras this time, at a White House ceremony this evening, but not before U.S. President Donald Trump slammed the judge’s opponents for a “campaign of personal destruction.”
U.S. Supreme Court Justice Brett Kavanaugh participates in his ceremonial public swearing-in with retired justice Anthony Kennedy as U.S. President Donald Trump and Kavanaugh’s wife, Ashley, and daughters Liza and Margaret look on. (Jonathan Ernst/Reuters)

6 October

Kavanaugh Is Sworn In After Close Confirmation Vote in Senate

Judge Brett M. Kavanaugh was confirmed to the Supreme Court on Saturday by one of the slimmest margins in American history, locking in a solid conservative majority on the court and capping a rancorous battle that began as a debate over judicial ideology and concluded with a national reckoning over sexual misconduct.
As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.
For President Trump and Senate Republican leaders, who have made stocking the federal judiciary with conservative judges a signature issue, the Senate vote was a validation of a hard-edge strategy to stick with Judge Kavanaugh, even after his nomination was gravely imperiled by allegations by Christine Blasey Ford that he had tried to rape her when they were teenagers.

5 October
Dear Senators: The Opposition to Brett Kavanaugh Includes Churches, Law Professors, and Conservatives — Even His Own Friends

4 October
When Kavanaugh is confirmed, impeachment could follow. Here’s how.
By Elyse Samuels, Patrick Martin
The countdown to Brett M. Kavanaugh’s final confirmation is underway.
(WaPost) A limited FBI investigation into sexual assault claims against the federal judge is done. The agency’s report was sent to the White House on Wednesday, and lawmakers reviewed it Thursday.
On Friday, the Senate agreed to move to a final vote on President Trump’s Supreme Court nominee, which will take place Saturday. Barring any last-minute surprises, the bitterly divided Senate will confirm Kavanaugh to a lifetime appointment to the nation’s highest court .
In early September, even before the recent spate of sexual misconduct allegations, murmurs among Kavanaugh opponents fixated on whether he had lied under oath before the Senate Judiciary Committee.
Some Senate Democrats took to social media to air their ire and frustration. One former deputy assistant U.S. attorney general, who previously worked for a top Democrat, even called for Kavanaugh’s impeachment from the federal judiciary. “Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court,” Lisa Graves wrote in a Slate column on Sept. 7, more than a week before the New Yorker published the then-anonymous sexual assault claims of Christine Blasey Ford. “After the revelations of his confirmation hearings, the better question is whether he should be impeached from the federal judiciary. I do not raise that question lightly, but I am certain it must be raised.”
Graves wrote that Kavanaugh had misled the Judiciary Committee about the stolen documents that Graves had written as chief counsel for nominations for Sen. Patrick J. Leahy (D-Vt.) when he was the chairman of the committee. Kavanaugh, she wrote, “lied. Under oath. And he did so repeatedly.”
Therefore, she concluded, “he should not be confirmed. In fact, by his own standard, he should clearly be impeached.” … Graves told The Washington Post on Thursday that each time Kavanaugh testifies, he has shown “only more proclivity to lie to the Senate.”
Whether Kavanaugh returns to the D.C. Circuit or, as appears likely, is confirmed to the Supreme Court, impeachment proceedings could follow. They would be contingent on Democrats regaining control of the House, the only body that can bring an article of impeachment.
At the Constitutional Convention of 1787, the delegates concluded that even those holding the highest office would not be above the law, birthing the American system of impeachment.
Under the Constitution, the president, the vice president and “all civil Officers of the United States” (including those in the executive branch, plus federal judges) may be removed from office for “treason, bribery, or other high crimes and misdemeanors.” The procedure for impeaching a president or a federal judge is broadly the same.
There are two parts to the process:
The House is entrusted with the responsibility of voting on impeachment. Its members decide by a majority vote.
Then the Senate holds a trial for the underlying misconduct. A conviction requires two-thirds of the Senate, or 67 votes. If there is a conviction, the Senate removes the individual from office.
How likely is Kavanaugh’s impeachment?
“It’s as likely as the Democrats winning the House,” said Jed Shugerman, a professor at Fordham University School of Law.
“If they take back the House, I would be surprised if they don’t put forth impeachment proceedings in the next Congress,” Shugerman told The Washington Post.
“At the moment,” according to the Cook Political Report, “Democrats are substantial favorites for House control.”
Even then, though, Shugerman called Kavanaugh’s removal “exceedingly unlikely,” given the supermajority threshold in the Senate. But there are 51 Republicans and 49 Democrats in the Senate, where Republicans maintain a 7-in-9 chance of keeping control, according to FiveThirtyEight’s calculations — leaving no window for the Democrats to gain a supermajority, even in a best-case scenario.
The “supermajority” threshold for removal is exceedingly high by design: The delegates crafted it to prevent politics from driving the outcome, instead ensuring any misconduct was offensive enough to have bipartisan support for removal.
Nineteen federal officials — including 15 judges and two presidents — have been impeached, but fewer than half have been removed by the Senate, because of the supermajority standard. … Only one sitting Supreme Court justice — Samuel Chase — was impeached, on charges of being too partisan in 1805. As with Johnson and Clinton, Chase was acquitted by the Senate and continued to serve.
What are judges impeached for?
There isn’t a clear definition of “impeachable offense,” though historically that is often framed by statutory felonies and involves a significant abuse of power, according to Shugerman, an expert in constitutional law. “Current culture has also changed our understanding of what an abuse of power is,” he said.
In 1970, arguing for the impeachment of Justice William O. Douglas, then-Rep. Gerald Ford (R-Mich.) defined impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history. … Something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment.”
Douglas was never impeached; the hearings held by the House Judiciary Committee produced no credible evidence and concluded without a vote.
What’s clear, however, is that perjury is a significant offense, especially for a judge.
The question of lying under oath is particularly important for someone who would be or is a member of the judiciary, according to Graves. A judge, she said, is a symbol of integrity and the law. To the extent that a judge’s integrity is tainted, it disables that person from being able to continue as a judge. “Lawyers are officers of the court,” Graves told The Post. “Courts rule on matters and assess witness credibility all the time, so honesty, integrity and truthfulness are paramount qualities for a judge.”
This principle is evidenced by prior successful judicial impeachment proceedings: Alcee L. Hastings was impeached and removed from the bench for perjury in 1988. (Hastings now serves in
Congress, as a Democrat representing Florida’s 20th District.) Walter L. Nixon was impeached and removed for lying to a grand jury in 1989. Most recently, Thomas Porteous Jr. was impeached and removed for committing perjury on financial disclosures in 2010. Clinton’s impeachment was also based on his alleged lying under oath during a deposition, a proceeding that Kavanaugh was intimately familiar with from his time working on special prosecutor Kenneth W. Starr’s investigative team.
Kavanaugh is almost certain to be confirmed Saturday — exactly one month before the midterm elections.
If Democrats take control of the House when the next Congress is sworn in come January, it’s possible the House Judiciary Committee would quickly move to investigate Kavanaugh and draft articles of impeachment. Rep. Jerrold Nadler (D-N.Y.), who would chair the committee, has already said he would support such an action.

5 October
Collins and Manchin Will Vote for Kavanaugh, Ensuring His Confirmation
Friday’s vote ushers in 30 hours of debate before the Senate takes its final vote on Judge Kavanaugh. It came as senators were still absorbing the results of a confidential F.B.I. inquiry into allegations of sexual assault against the judge — claims that have torn apart the Senate and divided the nation.

4 October
NYT editorial: How Brett Kavanaugh Failed
And why the Senate should vote to keep him off the Supreme Court.
It is a terrible reality that, at this point, either confirmation or rejection of Judge Kavanaugh’s nomination by a narrow and overwhelmingly partisan margin will dismay and anger millions of Americans. But only by voting no, by asking Mr. Trump to send someone else for it to consider, can the Senate pass its test of institutional character and meet its obligation to safeguard the credibility of the Supreme Court.
Trump’s Unusual Strategy on Kavanaugh Worked
Though he’s typically spoiling for a fight, President Trump pulled his punches early in the fight over the Supreme Court nomination.
(The Atlantic) With the report completed, it became clear how limited the FBI’s scope had been. Agents did not interview Kavanaugh or Swetnick, despite Trump’s comments on Monday, nor did they interview Ford. (The stated rationale was that both Kavanaugh and Ford had testified under oath in public.) They did interview Deborah Ramirez, who says Kavanaugh exposed himself to her, but they did not speak to a range of potential witnesses who tried to get in touch. The specific contents of the report are confidential and being kept under lock and key.
This represents an unusually wily approach from the administration—though not one that is any more transparent or honest than the typical standard for this White House. Trump’s comments in recent days and the strict limits on the FBI report all suggest the president never seriously considered the allegations against Kavanaugh, and never intended for their (sic) to be a comprehensive investigation. Yet by taking a conciliatory tone publicly, Trump was able to soothe—or at least avoid further inflaming—tempers.
The Kavanaugh Nomination Careens From Crisis Towards Calamity
By Steve Denning
by confirming a justice whom more than 2,400 law professors deem disqualified for the appointment, the Republican leadership will have gravely damaged two of the cornerstones of the nation: the authenticity and integrity of the Supreme Court and the rule of law itself.
(Forbes) As more than 2,400 law professors of both political parties sign a petition stating the obvious legal fact that Judge Kavanaugh’s behavior at last week’s hearing of the Senate Judiciary Committee “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land,” the Republican leadership is forging forward with Judge Kavanaugh’s nomination, ignoring the legal, moral, political and institutional perils that lie just ahead. …
Since his elevation to the bench in 2006, Judge Kavanaugh’s conduct on the bench has been generally exemplary, as he apparently put behind him his partisan past and generally upheld the objectivity of the judiciary. The hearings for his elevation to the Supreme Court in early September were contested, but Judge Kavanaugh remained calm under intense questioning and any real views he might have about key issues were not revealed during the ordeal. At the conclusion of the hearings, there were reasonable prospects of the Republican leadership achieving some or all of their goals.
On September 12, the scene changed unexpectedly with the emergence of the accusation of sexual misconduct….
In its actions over the next 11 days, the Republican leadership jeopardized all of its goals by breaking the four rules of crisis management. It failed to recognize the crisis as a crisis. It failed to get out all the relevant information as early as possible, rather have it dribble out in intriguing little bits and pieces. The Republican leadership continually shifted its position as to what was involved, all the while acting as though it was engaged in a cover-up. …
Judge Kavanaugh opted to come to the hearing with a written statement that was angry and confrontational, replete with partisan conspiracy theories, unsupported by evidence. It was his premeditated decision to take a confrontational stance from the outset that raised the central question of judicial temperament.  Judge Kavanaugh even implicitly threatened the Judiciary Committee that “what goes around comes around.”
The hearing thus provided an answer to the lingering question as to whether Judge Kavanaugh’s partisan past was truly behind him and whether he might, once elevated to the Supreme Court, act in a partisan manner and reopen long-settled legal precedents such as Roe v Wade.

3 October
The Senate Should Not Confirm Kavanaugh Signed, 2,400+ Law Professors
‘This is march or die’: Kavanaugh urged to hit back hard
Allies push for an aggressive offense even as some concede that confirmation to the Supreme Court is an uphill battle.
(Politico) The uncertainty surrounding the nomination has Republicans and Democrats alike headed into the week raising the stakes of its outcome to a make-or-break moment for their chances of victory in the midterm elections.
“There’s no walking this thing back,” Steve Bannon, the former chief White House strategist, said in an interview Sunday night. “You get Kavanaugh, you’re going to get turnout. You get turnout, you’re going to get victory. This is march or die.”

28 September
Alan Dershowitz Urges Delay Of Kavanaugh Confirmation Vote For FBI Probe
“All sides have an interest in a full and thorough examination of these serious charges,” the Harvard law professor wrote for Fox News.
American Bar Association and Yale Law School Urge F.B.I. Inquiry Into Kavanaugh

27 September
Frank Bruni: Christine Blasey Ford’s Riveting, Persuasive Testimony
She was afraid. She was strong. She was human.
She was neither overly rehearsed nor cavalierly unprepared. She was specific. She was polite. She expressed frustration, even contrition, when she didn’t immediately comprehend a question and glanced around for clarity.
What registered most strongly about her was an understandable tremulousness, a complete earnestness and a commitment to only those assertions she felt full confidence about.
Once Christine Blasey Ford’s Humanity Was on Display, It Was All Over
(The Atlantic) Testifying before the Senate, she showed what American politics might look like if Americans truly saw the people our society usually silences and grinds underfoot.

23 September
Brett Kavanaugh Is Probably a Goner Now
(New York) Brett Kavanaugh’s primary and most plausible defense against the charge that he sexually assaulted Christine Blasey Ford was that Brett Kavanaugh would never do such a thing. His life showed he was straitlaced and studious, respectful of women, and had a long trail of female acquaintances who could vouch for his character.
A new revelation by Jane Mayer and Ronan Farrow of The New Yorker explodes that defense. … Mayer and Farrow further subvert Kavanaugh’s generalized defense, by quoting classmates skeptical of the testimonials that were procured on his behalf. Two of Kavanaugh’s former classmates dispute the general account of his social scene. One of those people, Elizabeth Rasor, claims that conservative writer Mark Judge, a character witness for Kavanaugh, has been outright lying.

17 September
The case for delaying vote on Kavanaugh gets a lot more obvious
(MSNBC) the judge’s official line is that the incident in question simply never happened and that his accuser is lying.
And that pushes us away from a debate about holding someone responsible for alleged actions from his past and into a debate about holding someone responsible for their current actions. If Kavanaugh is lying now about an alleged attack on a teen-aged girl, there’s simply no credible way this dishonesty can be dismissed by senators as irrelevant.

13 September
Patrick Leahy: Brett Kavanaugh misled the Senate under oath. I cannot support his nomination.
(WaPost) I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

10 September
Kavanaugh accused of ‘untruthful testimony, under oath and on the record’
(MSNBC) Lisa Graves, whose materials were stolen as part of the Republican theft at the time, wrote a brutal piece for Slate the other day: “Even if Kavanaugh could claim that he didn’t have any hint at the time he received the emails that these documents were of suspect provenance – which I personally find implausible – there is no reasonable way for him to assert honestly that he had no idea what they were after the revelation of the theft. Any reasonable person would have realized they had been stolen, and certainly someone as smart as Kavanaugh would have too. But he lied. Under oath. And he did so repeatedly.”
Graves suggested that Kavanaugh doesn’t deserve a promotion to the nation’s highest court; he deserves to be impeached over his repeated deceptions to the Senate.

7 September
Confirmed: Brett Kavanaugh Can’t Be Trusted
A perfect nominee for a president with no clear relation to the truth.
(NYT Editorial Board) He misstates facts under oath, and Republicans cover for him by making it hard, if not impossible, to get the documents proving it. With the help of the White House and a personal lawyer for Mr. Bush, Senator Chuck Grassley, the chairman of the Judiciary Committee, has subverted a long-established, nonpartisan process and hidden more than 90 percent of the material pertaining to Judge Kavanaugh’s time in government.

6 September
Kavanaugh’s Hearings: Responding to a confirmation process that’s been heavily criticized for lack of transparency, Democrats on the Senate Judiciary Committee released a set of “confidential” documents from the Supreme Court nominee Brett Kavanaugh’s time in the George W. Bush administration. Kavanaugh’s stance on abortion rights has become a key issue in the hearings, as Democrats try to mobilize voters around protecting the precedent set by Roe v. Wade.

4 September
Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh
(NYT) The verbal brawl began moments after the hearings began. Democrats, furious at being denied access to records related to Judge Kavanaugh, immediately interrupted the chairman of the Senate Judiciary Committee, Charles E. Grassley of Iowa, demanding time to consider tens of thousands of pages of documents released late Monday — the night before the hearing.
Protesters, most of them women, shouted down senators; by day’s end, Capitol Police said a total of 70 people had been arrested, including nine outside the room.
It was a chaotic start to what would ordinarily be a staid, albeit deeply consequential, process. And barring an astounding revelation, the path remains clear for Judge Kavanaugh’s ultimate confirmation — probably this month.

1 September
White House Withholds 100,000 Pages of Judge Brett Kavanaugh’s Records
(NYT) Senate Democrats said this was the first time that a sitting president has exerted executive privilege under the Presidential Records Act in order to prevent documents from going to Congress during a Supreme Court confirmation process.
Issues for Kavanaugh: The president who chose him and the court he would change
(WaPost) As Supreme Court confirmation hearings for Brett M. Kavanaugh begin Tuesday, abortion, affirmative action, religion and gay rights are among the issues at stake. But the hearings also come as the powers of a special prosecutor to investigate the president are part of a national debate, with decisions on executive power possibly awaiting the high court.

17 August
Why Are Republicans Covering Up Brett Kavanaugh’s Past?
For the first time in modern history, Senate leaders are refusing to request a Supreme Court nominee’s relevant papers.
(NYT editorial board) Mitch McConnell, the Senate majority leader, and Chuck Grassley, chairman of the Judiciary Committee … [are] now running the most secretive and incomplete confirmation process in modern history. They scrambled to set the start of Judge Kavanaugh’s confirmation hearing for Sept. 4, even as they have refused multiple requests by their Democratic colleagues to see more than one million documents covering his years as White House staff secretary to President George W. Bush. Judge Kavanaugh has called that job, which he held from 2003 to 2006, “the most interesting and informative” of his career in terms of preparing for his work on the bench.
These documents could contain important information about his role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him.

7 August
Trump Supreme Court pick: Presidents can ignore laws they think are unconstitutional
By Manu Raju, CNN Senior Congressional Correspondent
(CNN)Supreme Court nominee Brett Kavanaugh in 2013 asserted that it’s a “traditional exercise” of presidential power to ignore laws the White House views as unconstitutional, as he defended the controversial practice of signing statements prevalent in George W. Bush’s White House.
The comments could put a renewed focus on Kavanaugh’s time serving as White House staff secretary, who had a role in coordinating Bush’s statements accompanying legislation he signed into law. Critics contend that the Bush White House abused the use of signing statements to ignore laws passed by Congress, though Bush and his allies said such statements were no different than the practices of other administrations.

9 – 11 July
People Will Die if He Is Confirmed.’ Students and Alumni Press Yale to Condemn Supreme Court Nominee Brett Kavanaugh
(Fortune) Yale Law School may be proud to add another Supreme Court Justice to its long list of alumni, but many others do not share the sentiment.
After the school shared a press release lauding Brett Kavanaugh’s nomination, over 200 students, staff members, and alumni of Yale Law School signed an open letter condemning the press release and calling on the school to rescind its support.
Democrats Zero In on Kavanaugh’s Defense of Presidential Power
(NYT) Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

The NYT editoral board | There’s So Much You Don’t Know About Brett Kavanaugh
In the meantime, what should senators ask Judge Kavanaugh?
First, the questions everyone wants answered: What is his judicial philosophy? How does he approach interpreting the Constitution and statutes? Does he agree with the decision in landmark Supreme Court cases like, say, Brown v. Board of Education, which outlawed racial segregation in public schools, or Griswold v. Connecticut, which established a constitutional right to privacy? There’s no reason, despite their protestations, that nominees for the highest court in the land can’t give the public straight answers to these questions and many more like them — several, including Chief Justice Roberts himself, did so in the past.
But Senate Democrats and others who believe in the importance of an independent and nonpartisan judiciary also need to treat these hearings as a public-education opportunity. Where once these sorts of hearings served to inform Americans about the finer points of constitutional law, now they might be used to alert them to cynical tactics of power politics. For starters, that would mean making it clear that Monday’s nomination belongs not to Mr. Trump so much as to the conservative legal activists at the Federalist Society, who have spent nearly four decades building a movement to reshape the federal judiciary and rewrite whole sections of constitutional law.

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