Posts Tagged ‘Supreme Court’

Brett Kavanaugh and Merrick Garland: a note from the hearing

In Supreme Court nominee Brett Kavanaugh’s opening statement at his hearing Tuesday, he praised Merrick Garland, with whom he serves on the D.C. Circuit, as “our superb chief judge.”

If you were surprised by that, you shouldn’t have been. When President Obama nominated Garland to the high court, Judge Kavanaugh described his colleague as “supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court … He has been a role model to me in how he goes about his job.”

In fact, it has been reported in at least one place that one reason Kavanaugh was left off Trump’s initial list of SCOTUS nominees was that he had been so vocal and public in praising Garland’s nomination.

Now, it would be understandable if neither side in the partisan confirmation wars chose to emphasize this bit of background to the story. Republican strategists might not be keen on reminding listeners of what their party did with Garland’s nomination, and might also worry about eroding enthusiasm for Kavanaugh among certain elements of their base. Democratic strategists, meanwhile, might see the episode as one in which the present nominee comes off as not-a-monster, and, well, you can’t have that.

The lesson, if there is one, might be that the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time. [cross-posted from Cato at Liberty]

Filed under: judicial nominations, Supreme Court

Ben Sasse on how the three branches of government have malfunctioned

Tuesday’s Senate star, Sen. Ben Sasse (R-Neb.), in his opening statement at the Brett Kavanaugh confirmation hearing:

Filed under: constitutional law, judicial nominations, Supreme Court

Mike McConnell on the Brett Kavanaugh nomination

Michael McConnell, the esteemed Stanford law professor, writing in The Hill:

There is plenty of controversy over the nomination of Brett Kavanaugh to the Supreme Court, but almost none of it is about him. Even detractors appear to have abandoned any claim that he lacks the intellect, experience, or temperament to be an outstanding justice. Critics have combed through 12 years of his opinions on the District of Columbia Circuit, second only to the Supreme Court in the high profile cases it decides, without coming across a single opinion that is half baked or unreasonable…..

Temperamentally and philosophically, Kavanaugh more closely resembles the moderate John Roberts than the fire-breathing monster some of his detractors are attempting to portray. It would not surprise me, although I could be overly optimistic here, that with Kavanaugh on the Supreme Court and Justices Breyer and Kagan showing signs of willingness to break with their more leftward brethren or sistren, the new Supreme Court could have a serious principled middle for the first time in decades. That would be therapeutic for our obsessively polarized country….

Some of the hostility of Democrats to any nomination of a Republican president, no matter how qualified, is due to backlash against the Republican Senate’s refusal to consider the nomination of Judge Garland, an exemplary nominee, to the Supreme Court in 2016. Of course, Republicans thought their actions toward Garland were a justifiable backlash to Democratic refusals to consider Republican judicial nominees in election years in the past. Whatever the merits of those arguments, they should not be allowed to poison the well of Supreme Court nominations forever, or the nation will pay a stiff price….

Whatever any of us might think of Trump, he was elected president by a vote of the people in accordance with constitutional processes. Unless and until actual charges are brought and proven against him, the people of the United States are entitled to the presidency they voted for. In my opinion, it would be highly improper for any senator to vote against an exemplary nominee to the Supreme Court in the anticipation that the president may at some time in the future be impeached, charged, or convicted of a crime. Unless and until that happens, Trump is entitled to nominate a new justice to the Supreme Court, and we should all be pleased and relieved that the nominee is a person of the character and ability of Brett Kavanaugh.

Filed under: judicial nominations, Supreme Court

Will Florida takings injustice tempt SCOTUS?

Simone and Lyder Johnson say they

were drawn to Ponce Inlet, Florida, where they bought land and made plans to construct their dream home. Sensing that the town may be able to benefit, Ponce Inlet persuaded the Johnsons to expand their plans into “a delightful mixed-use waterfront development.”

Over several years, the Johnsons bought additional parcels while working hand-in-hand with the town. They were amenable to providing everything the town asked for, like a nature preserve and boat slip. After millions of dollars were spent, the town changed its mind, halted all work, denied permits, and went so far as to pass legislation prohibiting all development on the Johnsons’ property.

Under current regulatory takings law, government is hardly ever required to pay compensation when it forbids the use of land. Is the injustice in this case extreme enough to tempt SCOTUS to revisit the issue? [Ilya Shapiro, Trevor Burrus, and Meggan DeWitt on Cato certiorari brief in Pacetta v. Ponce Inlet]

And a reminder to mark your calendar: Cato’s 17th annual Constitution Day is coming up Monday, September 17. Details and registration here.

Filed under: eminent domain, Supreme Court

Packing light at the Supreme Court?

Proposals for just a little bit of Court-packing — just a balancing! — are no more stable than the more blatant kind. “There is no magic bullet that will enable either Democrats or Republicans [to] stealthily pack the Supreme Court without risking retaliation in kind.” [Ilya Somin on the Ian Ayres / John Fabian Witt plan; related, Howard Wasserman]

Filed under: judicial nominations, Supreme Court

Obergefell reliance interests

My Wall Street Journal opinion piece from last month on why same-sex marriage isn’t going away under a conservative Supreme Court is now online paywall-free at Cato.

Filed under: same-sex marriage, Supreme Court, WO writings

A libertarian case for Judge Brett Kavanaugh

My colleague Ilya Shapiro says that even with a few questions open about his approach to the Fourth Amendment, national security, and mass data collection, Brett Kavanaugh overall is very much the sort of nominee libertarians should back. More from Randy Barnett, and earlier here.

Filed under: judicial nominations, Supreme Court

On Rick Sincere’s The Score podcast

I joined Rick Sincere on his podcast The Score for the Bearing Drift site (Virginia politics) for what turned out to be a two-part interview. You can listen to part 1 on Brett Kavanaugh’s Supreme Court nomination, and part 2 on why the Court is unlikely to overturn its Obergefell decision on same sex marriage.

Filed under: on TV and radio, same-sex marriage, Supreme Court

Janus aftermath roundup

“Why It Was Proper (and Necessary) to Overturn Old Precedent” [Ilya Shapiro and Aaron Barnes, Cato, earlier on Janus v. AFSCME case]
Mackinac Center has launched national exit-encouraging campaign [My Pay My Say] Class action suits in several states against government unions seek refund of fees paid [Bill McMorris, Free Beacon]
Proposal to have public employers simply pay unions directly could eliminate workers’ choice in the matter [Benjamin Sachs and Sharon Block, Vox (favoring idea); Eugene Volokh]
“California’s Government Unions Take Steps to Obliterate Janus Impact” [Edward Ring, California Policy Center, earlier on California aftermaths]
“How NY will thwart Janus rights” [Ken Girardin, Empire Center; Eric Boehm; earlier on evasion] When right to work came in, “Michigan unions didn’t simply refrain from identifying the exits. They actively worked to make leaving difficult and onerous.” [Joseph G. Lehman and John R. LaPlante, USA Today]
And now for something completely different: “After Janus, Conservatives and Teachers’ Unions Should Collaborate” [Max Eden; Erica L. Green, New York Times on how American Federation of Teachers is coping with decision]

Filed under: labor unions, public employment, schools, Supreme Court

Free speech, Brett Kavanaugh, and the Supreme Court

Yesterday was a two-podcast day for me. The first was a discussion at FIRE on prospects for free speech at the Supreme Court after Anthony Kennedy’s retirement and the nomination of Brett Kavanaugh. Other panelists were First Amendment experts Robert Corn-Revere and Paul Sherman and the moderator was FIRE’s Nico Perrino.

At the Cato Daily Podcast, Caleb Brown interviewed me about what we know from nominee Brett Kavanaugh’s career as a judge, which has been spent on the influential but atypical D.C. Circuit Court of Appeals. That means we know a lot about his views on some subjects (regulatory and administrative law, separation of powers, national security law) but much less about his approach toward issues that loom larger as a share of the docket in other circuits, such as disputes involving schools, land use, police abuse and prisoner cases, torts, and so forth.

Related to both podcasts, Ken at Popehat assesses Kavanaugh’s record on the First Amendment and finds it quite speech-protective, while Jonathan Adler has more.

Not very closely related: you’ve probably heard the theory that Trump made the choice he did because Kavanaugh doesn’t think Presidents should be investigated or charged with criminal offenses. Here’s Ben Wittes, who’s anything but a Trump fan, on the problems with that theory. [Lawfare]

More: And now a video of the FIRE panel:

Filed under: D.C. Circuit, First Amendment, on TV and radio, Supreme Court