Erwin Chemerinsky has this article in the ABA Journal identifying areas where Justice "Kennedy was the fifth vote for a liberal result, and where it is uncertain, or even unlikely, that Kavanaugh would decide the same way" as Justice Kennedy did.

Exclusionary rule: In Hudson v. Michigan (2006), Justice Antonin Scalia wrote an opinion--joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito--that called for the elimination of the exclusionary rule in Fourth Amendment cases. He argued that the costs of excluding evidence when police officers violate the Fourth Amendment outweigh the benefits of doing so. Justice Kennedy agreed to the result in that case, but declared that the continued operation of the exclusionary rule was not in doubt. But with Kennedy being replaced by Kavanaugh, there could be five votes to overrule a doctrine that conservatives have opposed for decades.

Really?  I have been arguing to limit Mapp for many years. I think I would remember if the Supreme Court came within a single vote of overruling it completely, especially in a case where my organization filed a brief.

David Quintana, a lobbyist for the California Bail Agents Association, said he believes the referendum will be "overwhelmingly successful," because Californians are tired of the stream of recent laws rolling back tough criminal statutes and sentencing laws to reduce the state's overcrowded prison population.

"The public is going to rise up and support stronger public safety," he said.

Last week I noted a disastrous change to California law on mental health diversion that was sneaked through the Legislature. Today the Assembly passed a bill to make the change somewhat less disastrous.  SB 215 would exclude some of the more serious offenses.  Dan Morain at CalMatters notes this bill among others. Scroll about half way down. Morain also notes the bail bill described in Kym's post.

California Governor Jerry Brown signed "sweeping legislation" into law yesterday that will completely eliminate all cash bail for pretrial detainees as of October 1, 2019, and replace it with "risk assessments" and non-monetary conditions of release.  

That is apparent from five sources of law: the text and original understanding of Article I, the overall structure of the Constitution, landmark Supreme Court precedent, longstanding federal statutes, and deeply rooted U.S. military commission practice.

First, the text and original understanding of Article I demonstrate that international law does not impose a limit on Congress's authority to make offenses triable by military commission.

Imagine that, not only looking to the text and original understanding of the Constitution, but looking to them first. That is really the only approach to constitutional interpretation that is consistent with a respect for the people's right of self-government, i.e., democracy. The Constitution means what the people meant it to mean until the people, not the courts, change it.

And given that a Justice Kavanaugh would replace Justice Anthony Kennedy -- the swing vote in several key national security cases (such as Boumediene v. Bush, in which the Supreme Court held that Guantanamo detainees have a constitutional right to habeas corpus) -- his impact in this area of the law could bring significant change when such cases reach the court.

Given that Boumediene was wrongly decided (see CJLF brief), that would be a significant change in the correct direction.

But I noticed an odd repetition in my review: On more than one occasion, Kavanaugh has begun an opinion by saying: "This is a Fourth Amendment exclusionary rule case." Might this portend his agreement with some Supreme Court justices, that the "exclusionary rule" adopted universally in 1961 in Mapp v. Ohio should be reconsidered?

In only the second time in her career, District Attorney Nancy O'Malley will pursue the death penalty for defendant Mark Estrada, accused of killing Sgt. Scott Lunger, 48, a Brentwood father of two. Lunger was fatally shot in the head and thigh shortly after he approached a white Chevrolet Silverado he had stopped for swerving in the roadway at 3:15 a.m. July 22, 2015, in Hayward.

Then again, the idea that mere suspicion of criminality is enough to stop a president from engaging in his constitutional duty is a completely new one, designed, as most things these days, only for Trump.

The Whitewater investigation went on for nearly 3,000 days. Did that mean that any court with Stephen Breyer, nominated after an independent investigation was launched, became "fundamentally illegitimate?" I mean, that investigation ended up convicting 15 friends and allies of the Clintons for over 40 crimes, including felonies like fraud, bribery and embezzlement. Talk about a "cloud of suspicion." Clinton himself was impeached, not on campaign finance charges, but on obstruction of justice and perjury. His wife was under investigation throughout most of her 2016 campaign, and not one serious person claimed that her SCOTUS nominees would be "illegitimate."

Democratic senators demanded Wednesday that Supreme Court nominee Brett Kavanaugh's confirmation be put on hold, saying he's too tainted by President Trump's potential legal troubles.

Illegal Sentenced For Multiple Rapes:  An Illinois judge has sentenced an illegal alien to 80 years in prison for the rapes of two women.  Ted Sloik of the Chicago Tribune reports that 37-year-old Miguel Luna was ordered deported in 2012, but he was never removed.  Three years later Luna attacked a woman running on a trail, beating and raping her.  In 2016 he attacked another woman on the same trail.  After his arrest, Luna confessed to raping a third woman, who died before his trial.  Luna did not dispute the charges, but claimed that his abusive childhood mitigated his responsibility for the attacks.    

Judge Ikuta of the Ninth Circuit takes us on a detailed tour of Federal Rule of Criminal Procedure 4 and its 2016 amendments in In re Pangang Group Co., Ltd., No. 17-72370.

Illegal Arrested in Mollie Tibbetts Murder:  Police have arrested an illegal alien for the murder of Iowa co-ed Mollie Tibbetts, whose body was found in a cornfield today.  The Associated Press reports that 24-year-old Cristhian Bahena Rivera, an illegal alien from Mexico, has been charged with first-degree murder, after he was identified with the victim on surveillance video on the day she disappeared.  ABC News reports that, following his arrest, Rivera told detectives that he had confronted the 20-year-old student while she was jogging in her neighborhood on July 18.  He said that when she threatened to call the police if he did not leave her alone, he "blacked out," and when he awoke Tibbetts was dead.  DHS reports that Rivera has been living in the country illegally for at least 4 years.   

Chicago's top cop told reporters Monday that the failure to jail repeat offenders is to the blame for the city's out-of-control gun violence.  Chris Irvine at Fox News reports that Police Superintendent Eddie Johnson, who has been calling for tougher punishment for repeat gun offenders, spoke out on Monday after the city's second bloodiest weekend of the year, with 58 shootings leaving seven dead.  The violence has continued even after the city deployed and additional 600 officers to high crime neighborhoods.  Apparently, no gathering is off limits for gang shootings, including a back-to-school peace rally at a playground Saturday night, where three people were shot.  Chicago police are under one of the most restrictive consent decrees in the country, signed off by Mayor Rahm Emanuel to quell "black lives matter" protests over police shootings of black males and Obama Justice Department claims that police used racial profiling to target minorities, as reported last year by the Los Angeles Times.     

With California's Legislature and Governor hell-bent on passing as much pro-criminal, anti-victim, anti-law-abiding-people, anti-law-enforcement legislation as they possibly can, I have begun to wonder if there is any bottom.  Is there any depth below which they will not sink?  Is there any depth below which the voters will wake up and vote the bums out?

The drive to put ever more criminals and more dangerous ones on the streets gathers steam, funded by Soros money on the left and Koch money on the libertarian side, leaving relatively few defenders of the strong and sensible policies that have been a major factor in the tremendous drop in crime since the peak in the early 1990s.  Senator Tom Cotton of Arkansas is one of the few, and he has this op-ed in the WSJ with the above headline.

While the House bill has some flaws, the Senate can fix them on a bipartisan basis. But under no circumstances should Congress cut mandatory minimum sentences for serious crimes or give judges more discretion to reduce those sentences. That foolish approach is not criminal-justice reform--it's a jailbreak that would endanger communities and undercut President Trump's campaign promise to restore law and order.

LINCOLN -- Maynard Helgeland turned to driving a taxicab because he could do the job with two prosthetic legs.

He had lost his legs as a result of an alcohol addiction that also cost him his marriage and damaged relationships with his three children

But by Aug. 27, 1979, Helgeland had gotten sober and was working to reconnect with his children until he was shot in the head after picking up a fare.

That fare, Carey Dean Moore, is scheduled to be executed Tuesday for killing Helgeland and a second cabdriver five days earlier.

*      *      *

Reuel Van Ness enjoyed the time he spent taking people around Omaha in his taxicab.

He drove the cab to supplement his other jobs. The money came in handy to help support his family of 10 children and stepchildren.

But the job cost Van Ness his life on Aug. 22, 1979, when a fare shot him three times and stole $140.

The following table gives the number of days from nomination to the commencement of hearings for the last four Justices nominated by Democratic Party Presidents and the scheduled date for Judge Kavanaugh:

A similar calculation for the total time from nomination to confirmation shows that if Judge Kavanaugh is confirmed in a "mad rush" equal to the average for the above four nominees, he will be on the Court by September 17, in time to participate in the "Long Conference" and the opening of the new term.

The Federal Bureau of Investigation has fired agent Peter Strzok, whose anti-Donald Trump text messages prompted sharp criticism over his handling of two politically charged investigations.

His attorney, Aitan Goelman, said Mr. Strzok was fired Friday. The FBI didn't immediately respond to requests for comment.

Mr. Strzok was the lead agent on the FBI probe into Hillary Clinton's use of a private email server as secretary of state. He later served as the lead agent in the early days of special counsel Robert Mueller's inquiry into Russian interference in the 2016 election.

Mr. Mueller removed him from the probe a year ago, after the Justice Department inspector general uncovered Mr. Strzok's exchange of tens of thousands of text messages from 2015 through 2017 with a former FBI lawyer, Lisa Page, with whom he was having an affair.

Mr. Strzok testified in July on Capitol Hill that he never permitted his views to affect his official actions, a stance Republicans contested.

Tennessee Executes Child Killer:  For the first time since 2009, Tennessee executed a condemned murderer Thursday amid claims that the three-drug execution cocktail amounted to cruel and unusual punishment.  CBS News reports that Billy Ray Irick's execution took 14 minutes, after he coughed, took deep breaths and turned dark purple.  About 50 protesters were outside the prison during the execution.  Irick was sentenced to death for the 1985 rape and murder of a 7-year-old girl he was babysitting.  His attorneys attempted to stop the execution with claims that the use of the sedative midazolam would allow pain.  In her dissent from the SCOTUS denial of a stay, Associate Justice Sonya Sotomayor asserted the Tennessee protocol could cause "torturous pain."  I suspect that the little girl that Irick raped and killed probably suffered more pain.  Gotta love how Yahoo News covers this  execution...leading with the headline from a British newspaper (The Independent) which reads, "Tennessee executes child killer Billy Ray Irick with drug that inflicts `torturous pain.' " How does reporter Toyin Owoseje know that this is true?  She doesn't...but  she takes Justice Sotomoyer view about the possibility and Irick's attorney's arguendo and makes it an absolute.  That is fake news.   

9th Grants Right to Sue to Foreign National:  In a strikingly blunt opinion, a divided panel of the 9th Circuit announced that a Mexican mother, whose son on the Mexican side of the border was shot and killed by a U.S. border agent on the American side, can sue for damages.  Stephen Dinan of the Washington Times reports that agent Lonnie Swartz shot and killed Jose Antonio Rodriguez, who was allegedly among a group of youths throwing rocks at him from the Mexican side of the border.  A jury acquitted Swartz of murder and deadlocked on a manslaughter charge, before Rodriquez's mother filed a civil rights suit for damages.  The ruling, authored by Judge Andrew Kleinfeld, conflicts with a 5th Circuit decision in a similar case which held that foreign nationals do not have a right to sue.  In a dissenting opinion, 9th Circuit Judge Milan Smith warned that the majority has taken the judiciary into "uncharted territory" which may violate the separation of powers.  CJLF filed a brief in the Supreme Court's 2017 review of the 5th Circuit decision, which the high court punted back for further review.     

Fifteen states are siding with Nevada in a state Supreme Court fight against drug companies suing to prevent the use of their products to execute a condemned inmate.

In what a national death penalty expert on Tuesday called a setup for a showdown, documents filed with the Nevada Supreme Court argue that drug company Alvogen's effort to block the use of its sedative midazolam in the stalled execution of Scott Raymond Dozier in Nevada is part of a "guerrilla war against the death penalty."

"The families of these victims deserve justice," Arkansas' state Attorney General Leslie Rutledge said in a statement Tuesday. Arkansas is leading the 15 states that include Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and Utah.

"If Alvogen is allowed to succeed," the Monday friend of the court filing said, "there is a substantial risk that pharmaceutical companies -- prodded by anti-death penalty activists and (defense attorneys) -- will flood the courts with similar last-minute filings every time a state attempts to see justice done."

A person charged with absence without leave or missing movement in time of war, or with any offense punishable by death, may be tried and punished at any time without limitation.

Chicago Weekend; 74 shot, 11 dead:   The first weekend in August has added another 74 shootings to the estimated 1,700 which have occurred in Chicago so far this year.  Madeline Buckley of the Chicago Tribune reports that eleven people died and 63  were wounded in shootings mostly on the South and West sides of the city.   The victim's ages ranged from 11 to 62.  A police official told reporters that most of the violence was by gang members who shoot into summer crowds at night.   Two 17-year-olds, shot in separate incidents, were the youngest homicide victims.  Tribune data indicates that at least 300 people have died in Chicago shootings this year.   Manhattan Institute scholar Heather MacDonald has this take on the reasons for this violence in today's City Journal.

Aaron Ford's future would look a lot brighter if he'd been more honest in the past.

Last Friday, Ford -- the state Senate majority leader and the Democratic candidate for attorney general -- sat down with Steve Sebelius of KLAS-TV, Channel 8, to reveal he had been arrested numerous times in the 1990s. The reasons for his run-ins with the police included stealing, public intoxication and failing to appear in court.

"These things are not at all indicative of who I am," said Ford. "I would hope that people are able to look at the body of work over the last 25 years of my life and be able to judge me on that and not judge me on bad decisions I made as a college kid."

Ford then went further, asserting it was "illegitimate" to discuss his arrest record as he seeks to become Nevada's chief law enforcement officer. That's some chutzpah.

But Ford's larger contention -- that he's moved past the mistakes of his youth -- is undone by his recent and repeated dishonesty.

This appeal presents the question of whether, in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called "sanctuary" cities and counties.