Recently in Judicial Selection Category
This case was decided on remand from the United States Supreme Court. The first time out, the Kansas Supreme Court reversed the conviction. That court found a Fifth Amendment violation in the requirement that Cheever submit to a mental examination when he claimed a "mental disease or defect" defense. The U.S. Supreme Court reversed unanimously in an opinion by Justice Sotomayor. CJLF filed an amicus brief in the case.
On the first round, the Kansas Supreme Court considered only the penalty phase issues likely to arise on retrial because the case was going to be retried anyway. On remand from the U.S. Supreme Court, they needed to consider in full whether to affirm the penalty.
One of the issues was whether the defendant was entitled to an instruction that the defendant need not prove his mitigating circumstances beyond a reasonable doubt. The Kansas court had held that the Eighth Amendment requires this, but that holding was reversed last January by the U.S. Supreme Court in Kansas v. Carr. CJLF also filed a brief in that case. The state court can, and did, hold that the instruction is still required by state law. However, because Cheever did not request the instruction a different standard of review applies, and the absence of the instruction was not so detrimental as to require reversal in this case.
Affirmance of this entirely just sentence is a good result, but long overdue. It took so long because the Kansas Supreme Court erroneously decided two issues of federal constitutional law. Kansas has the worst system of any state for appointing Supreme Court judges -- the State Bar is the gatekeeper to the bench -- and it shows. Reform of this process should be top priority in that state.
Though the examples are few, they tend to support the right of Republicans to handle -- or not handle --this nomination as they wish.
To me, there are only two relevant issues.
1. Would Garland move the Court to the Left from what it was with Scalia, a direction opposite from what the country wants?
Yes he would. We don't need hearings to know that.
2. Would acting on Garland now effectively extinguish the citizens' chance to have a say at the election in eight months about the direction of the law?
Yes it would. We don't need anything but the calendar to know that.
I was hoping for a diversity pick. Alas, confirmation of Judge Garland would leave us with nine Justices all of whom went to Harvard or Yale.
I have been browsing Judge Garland's criminal and related opinions and haven't found anything noteworthy either way yet.
Should the Senate confirm him? Should Republicans even allow the machinery to start?
A "no" answer is, in effect, doubling down on the election. A victorious President Hillary Clinton would likely nominate someone further into left-wing judicial activism, making the Scalia->X transition a even larger shift than the Marshall->Thomas transition, currently the largest single-appointment shift in modern history. A victorious Republican candidate would likely appoint someone more aligned with Justice Scalia's views.
Is this a good hand to double down on?
On Wednesday, a judge in US District Court in Oregon will consider whether a constitutional challenge to federal actions that underwrite fossil fuel emissions may proceed. Brought by youth plaintiffs, and by me, on behalf of future generations, the lawsuit alleges that by permitting...and subsidizing the exploitation, production...and burning of fossil fuels, our government has caused or substantially contributed to the present emergency in which the very viability of a hospitable climate system is at stake. We argue that such federal actions infringe upon the fundamental guarantees of the Fifth Amendment, including the rights to life, liberty, property, and equal protection of the law.
Nevertheless, Mr. Obama has publicly predicted that Republicans, faced with a well-qualified candidate and a constitutional mandate to provide advice and consent, will ultimately relent and allow hearings.
By floating the name of Eighth Circuit judge Jane L. Kelly as a possible Supreme Court nominee, the White House is treating Senate Judiciary Committee Chuck Grassley as though he were a chump. The White House is hoping that because Kelly has worked in Iowa since 1994 and because Grassley supported her 2013 nomination to the Eighth Circuit, Grassley might face an "awkward dilemma," as a New York Times article puts it, if Obama were to nominate her.
I'm glad (but not at all surprised) to see that Grassley has forcefully rejected this ploy, reiterating his position that no nominee this year ("the person doesn't matter, see") will get a hearing. Further:
"You know, one of the questions I will ask them [in any meeting]," he said of the eventual nominee, will be "what they feel about being used as a political pawn."
The White House must be close to delusional if it thinks Judge Kelly's simply working in Iowa, and having Sen. Grassley return the blue slip for a job on the vastly less important Eighth Circuit, makes it likely, or even realistically possible, that Grassley would support a career criminal defense attorney, without any noticeable scholarship, to fill the seat of an intellectual giant like Justice Scalia. Sen. Grassley may be making a mistake on sentencing reform (he is in my view), but he is a serious man and a principled conservative who is not about to get hoodwinked by a transparent and, frankly, demeaning stunt.