H/T to Constitutional Law Prof Blog for calling attention to Laurence Tribe’s opinion piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh’s “intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades” last week, and “his stated animosities and observation that ‘what goes around comes around,'” he’d have to recuse himself from a whole lot of cases:
Judge Kavanaugh’s attacks on identifiable groups–Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons”–render it inconceivable that he would “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.
More than 2,400 law professors signed on to a letter saying that then Supreme Court nominee Brett M. Kavanaugh displayed a lack of judicial restraint at a Senate confirmation hearing — behavior that would be disqualifying for any court nominee. From the letter which was published by the New York Times as an opinion piece:
Around the Country Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, to be a judge requires that an individual have “a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist Paper 78, entitled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research, and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 28, 2018, the Honorable Brett Kavanaugh 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 question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
From The Supreme Court’s Overruling of Constitutional Precedent (R45319 Sept. 24, 2018): “How the Court uses precedent to decide controversial issues has prompted debate over whether the Court should follow rules identified in prior decisions or overrule them. The Court’s treatment of precedent implicates longstanding questions about how the Court can maintain stability in the law by adhering to precedent under the doctrine of stare decisis while correcting decisions that rest on faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions.”
Coming up in October, the Supreme Court starts a new term and hears new cases. The Court has thus far accepted 38 cases for review. Supreme Court of the United States October Term 2018 by the Supreme Court Institute at Georgetown Law provides an excellent preview. See also SCOTUSblog.
Supreme Court October Term 2017: A Review of Selected Major Rulings (R45316, Sept. 19, 2018) reviews Epic Systems Corp. v. Lewis, Carpenter v. United States, Murphy v. NCAA, Janus v. American Federation of State, County, and Municipal Employees, NIFLA v. Becerra, Trump v. Hawaii and Lucia v. SEC
Yesterday, CNN published the text of the letter Christine Blasey Ford wrote to Sen. Dianne Feinstein detailing an event in which she accuses Supreme Court nominee Brett Kavanaugh of sexual misconduct. Here’s the text. — Joe
From Carolyn Shapiro, What Members of Congress Say About the Supreme Court and Why It Matters, 93 Chicago-Kent Law Review ___ (2018):
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process – what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers – evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A process-focused critique of Gorsuch’s jurisprudence could have, for example, challenged his claims that textualism necessarily constrains judges and is required by the separation of powers, and it could have given lie to the claims that judging is no more than mechanically “following the law.” Such a critique need not have ignored the real-world implications of Gorsuch’s jurisprudence and indeed could have demonstrated how his approach can undermine congressional efforts to protect ordinary people. Process language would also have allowed Democrats to use discussions of iconic cases like Brown v. Board of Education to demonstrate their commitment to the Constitution’s promises of equality and liberty and their expectation that any Supreme Court Justice embrace those principles. In future, Democrats should use confirmation hearings not only as an opportunity to question the nominee, but also as a chance to articulate their constitutional vision to the American people. The political right has shown how powerful this strategy can be. The political left should do the same.
Unresolved recusal issues require a pause in the Kavanaugh hearings by Laurence H. Tribe, Hon. Timothy K. Lewis, and Norman Eisen (Brookings Institution, Sept. 4, 2018) “explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained, it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.” For a summary, see this Brookings article. — Joe
The ABA Standing Committee on the Federal Judiciary on Friday gave its highest rating of well-qualified to Kavanaugh. For more, see this ABAJ article. The ABAJ and SCOTUSblog are live blogging the confirmation hearing. — Joe
The Senate Judiciary Committee hearing for Judge Brett M. Kavanaugh is scheduled to begin at 9:30 AM. The C-SPAN Video Library will provide a near real-time keyword searchable video stream of the hearing.
H/T Gary Price’s InfoDocket post. — Joe
From Calling Balls and Strikes: Ethics and Supreme Court Justices (LSB10189, Aug. 20, 2018): “What mechanisms ensure the integrity of Justices as federal officials? Are Justices subject to any rules of ethical conduct? How might such ethics rules be enforced? This Sidebar examines these questions and Congress’s potential role in regulating the ethics of the Supreme Court Justices.”
H/T beSpacific. — Joe
From Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court (R45293, August 21, 2018): “understanding Judge Kavanaugh’s views on the law is one method to gauge how the Supreme Court might be affected by his appointment. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note at the onset that, for various reasons, it often is difficult to predict accurately a nominee’s likely contributions to the Court based on his or her prior experience. That said, the nominee is a well-known jurist with a robust record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role of the judge fairly clear. Central to the nominee’s judicial philosophy is the concept of judicial formalism and a belief that the ‘rule of law’ must be governed by a ‘law of rules.’” — Joe
From Charles M. Cameron, et al., Presidential Selection of Supreme Court Nominees: The Characteristics Approach (Aug. 13, 2018):
Despite the importance of every nomination to the Supreme Court, a unified theory that illuminates presidential selection of nominees across the modern political era remains elusive. We propose a new theory — the “characteristics approach” — that envisions nominees as bundles of characteristics, such as ideology, policy reliability, and attributes of diversity. We formalize the theory, which emphasizes the political returns to presidents from a nominee’s characteristics and the “costs” of finding and confirming such individuals, and derive explicit presidential demand functions for these characteristics. Using newly collected data on both nominees and short-list candidates, we estimate these demand functions. They reveal some striking and under-appreciated regularities in appointment politics. In particular, the substantial increase in presidential interest in the Supreme Court’s policy output and the increased availability of candidates with desired characteristics has led to significant changes in appointment politics and the composition of the Court.
An excerpt from Justice Anthony Kennedy: His Jurisprudence and the Future of the Court (R45256 July 11, 2018):
Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy’s judicial approach seemed informed by a host of related principles. First, Justice Kennedy’s views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy’s jurisprudence. For Justice Kennedy, separation of powers was a “defense against tyranny,” and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress’s legislative powers over the states, and reaffirmed protections for state sovereignty. Third, Justice Kennedy’s jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.
Here’s four profile pieces to read more about Trump’s nominee for the Supreme Court.
Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers, Washington Post, July 9, 2018
Brett Kavanaugh: Everything you need to know about Trump’s new Supreme Court candidate, Independent, July 10, 2018
Who is Judge Brett Kavanaugh? Trump’s Supreme Court nominee, Boston.com, July 10,2018
Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?, NPR, July 9, 2018
President Trump said Wednesday he intends to nominate a replacement for retiring Supreme Court Justice Anthony Kennedy from a list of names he first compiled during his 2016 campaign. Here’s NPR’s annotated list of potential SCOTUS nominees. — Joe
In South Dakota v. Wayfair, the justices voted 5-4 to overrule two prior cases that prohibited states from requiring out-of-state retailers who don’t have a store or warehouse in the state to collect tax on sales to state residents. Here’s the SCOTUSblog opinion analysis. — Joe
In Husted v. A. Philip Randolph Institute, No. 16-980, June 11, 2018, the Supreme Court ruled 5-4 that the process Ohio uses to remove voters on change-of-residence grounds does not violate the National Voter Registration Act. Jusice Alito wrote the opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Sotomayor filed a dissenting opinion. Here’s the opinion. — Joe
By failing to exhibit “religious neutrality,” the Colorado Civil Rights Commission violated the free-exercise rights of a baker who refused to make a cake for a same-sex wedding in the 7-2 holding in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 June 4, 2018. See Amy Howe’s SCOTUSblog analysis here. — Joe