Recently in Judicial Selection Category

Cheever Follow-Up

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Today's News Scan notes the affirmance by the Kansas Supreme Court of the death sentence of Scott Cheever for the murder of Sheriff Matt Samuels in the performance of his duty.

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.

Fleshing Out the Trump Administration

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There are five months or so until the election.  At this point, the major polls have Clinton and Trump tied.  Among registered voters, WaPo/ABC has Trump ahead by 2; for NBC, it's Clinton ahead by 3; for NYT/CBS Clinton is up by 6; and Fox has Trump up by 3. Likely voters tend to be slightly more Republican and a slightly better predictor of actual results.  Thus, for now, it's a tie.

With that as the state of play, I'm happy to join the game going on elsewhere in this town, to wit, suggesting names for Trump's VP and the Supreme Court nominees.

N,B. This is not an endorsement of Trump.  CJLF does not endorse candidates, and I personally am not at this point.  My favorites, Ted Cruz and Marco Rubio,  didn't get this far.

Trump's Supreme Court Candidates

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ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

I know three of them slightly, none of whom I am going to name.  They would be excellent. My one big regret about this list is that it does not include former Solicitor General Paul Clement.

The difference in probable Supreme Court picks between Sec. Clinton and Donald Trump remains, in my view, the most important reason to be, if not enthusiastic about Trump, at least not in hellish despair.

The Evolving Constitution

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One of the classic debates in constitutional law is about whether the Constitution "evolves."  This is, for example, at the center of much of the discussion concerning the death penalty and the Eighth Amendment, as "currently understood."  The battle between Justice Scalia's concurrence in Glossip and the two-Justice dissent filed by Justice Breyer is an apt illustration.

One of the country's leading senators has seen the Constitution evolve dramatically about a question now much in the news, given the pending Supreme Court nomination.
Judge Garland seems to me to be a bright, fair-minded and decent man.  He has experience at a high level in the Justice Department.  Taking what might be called a neutral view, he is qualified for the Supreme Court in all the usual senses of that word.

The problem is that I don't take a neutral view, and  --  let's be honest about it  --  neither does anyone else.  Certainly the President didn't when he nominated Judge Garland.  Instead, the President knew what the New York Times (yes, that New York Times) now discloses (emphasis added):  "If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years."

This is the Times' story, mind you.   Note in particular its graph, showing that a Justice Garland would vote squarely in the middle of the liberal bloc, a tiny bit to the right of Ginsberg and a tiny bit to the left of Kagan.

What this means is that Republicans are not taking that much of a gamble in refusing to move him along the path to a vote.  The likelihood is that, even if there is a Democratic President and Senate in 2017, the nominee to replace Garland (if he gets replaced, which is also unknown) would not be that much more liberal, if at all.

Merrick Garland, a Matter of Timing

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I have argued that the Republicans are correct in refusing to consider any appointment made to SCOTUS by President Obama. Judge Garland is a smart and decent man so far as I have any reason to believe, but that is not the point.  The point is that he is all but certain to be the fifth vote for anything important on the Left's Supreme Court agenda.  To take two examples, the idea that either Heller or Citizens United would survive Garland's elevation is just wishful thinking.

As Steve Erickson has noted, the Court now occupies such an outsized place in American life that its view of its role, of the Constitution, and of democratic self-rule has become too important to just pass over.  This is not a matter of partisan "bickering" or payback.  It's about the direction of American law itself.  

It's quite true that uncertainty abounds about who will succeed Obama, and what that person would do about Supreme Court nominations.  The Republicans are surely taking a risk that HRC will be elected and choose someone farther to the left.  They are also taking a risk with Donald Trump (although Trump's named Supreme Court candidates  --  Judges Diane Sykes and Bill Pryor  --  would be excellent choices).

But hold on there.  The risk is not as big as it's being advertised.

Merrick Garland and Doubling Down, Part II

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There is much focus on what the Republican Senate should calculate about the mostly liberal candidate now before it, versus later possibilities of a more liberal candidate (under Clinton) or a more conservative one (under Cruz) or God knows what (under Trump).  Less focused upon is the equally important but reverse calculation the White House was surely doing in deciding its course of action. 

It's hardly news that President Obama is thinking about his "legacy," nor is it news that Supreme Court appointments are a major part of that legacy.

Why then did Obama pick a 63 year-old, left-but-not-far-left white male Harvard grad from inside the now-detested Beltway?  This is the kind of nomination sure to leave Obama's base lukewarm to cool, which is certainly what seems to be happening.

My guess is as crass as all the identity politics that have colored the talk about a replacement since Justice Scalia's death. My guess is that Obama thinks Clinton will be indicted or, more to the point, will lose anyway, making the seat a Republican choice.

Obama is, if anything, a shrewd and in some ways a visionary politician.  It seems to me that he chose Judge Garland, whom he twice passed over, because he thinks that's the best the Left has a realistic chance of getting.  All the focus on Trump has deflected attention from something my more acute Democratic friends have been complaining about for months:  Hillary is a lousy candidate.  She's a distrusted, crony-capitalist, establishment figure in a year in which all those things are electoral poison.

It's not just the Republicans who have to confront disagreeable choices.
Constitutional scholars debate the question in the abstract, but WaPo Fact Checker Glenn Kessler looks at the historical record.

Though the examples are few, they tend to support the right of Republicans to handle -- or not handle --this nomination as they wish.

Merrick Garland and Doubling Down

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The Garland choice is certain to the the talk of the legal blogosphere today.  Kent, and now I, will join right in.

Should the Republicans formally consider this nomination?  

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.


The Garland Pick and Doubling Down

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Well, so much for predictions.  Merrick Garland was not the expected choice of many of those venturing a prediction.  Tom Goldstein had this handicapping at SCOTUSblog, and that blog's series of profile posts on potential nominees had not gotten around to Garland by announcement day.  Here at C&C, Bill Otis had this post early this morning.

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?

Probably Srinivasan

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It's being reported that President Obama this morning will name his choice to replace legal giant Justice Antonin Scalia on the Supreme Court.  Judges Watford from the Ninth Circuit and Merrick Garland and Sri Srinivasan from the DC Circuit are said to be the finalists.  Gone despite all the breathless giddiness are Loretta Lynch, Jane Kelley and District Judge Jackson Brown.  Also no longer anywhere to be seen is the media's one-day darling, Gov. Brian Sandoval of Nevada, now forever consigned to Trivia questions.

The most noteworthy and depressing fact about Obama's selection is that it's a faux nomination.  Almost no one thinks either that the nominee will have been chosen (a) for something other than his political utility in squeezing Republicans, or (b) that, once the squeezing runs its course, the nomination will so much as reach the floor. 

Elections have consequences, as Barack Obama once proudly (and correctly) said.  The consequence of the 2014 election was that voters, by a decisive margin, replaced Harry Reid with Mitch McConnell, and Pat Leahy with Chuck Grassley. Grassley and McConnell have said no hearing and no vote.  They have the unity in the caucus to back it up, and they will.

The Republicans have two sound arguments for refusing to move.  


One of Justice Scalia's pithiest observations about the Constitution was that is says what it says and doesn't say what it doesn't say.  

One reason I favor the strategy of waiting for an appointment from the next President is that we know the current occupant of the Oval Office has no intention of appointing a Justice with anything approaching Justice Scalia's depth, discipline, rigor and unyielding fidelity to law.

I got a reminder of just how bizarre a path "make-it-up-as-you-go-along" constitutional law can become when I read this article in the Boston Globe titled, "The constitutional right to a healthier climate."  

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.

In other words, the claim is that the Constitution not merely accommodates, but commands, fruitcake environmentalism.

I knew I would miss Justice Scalia, but I didn't know it would be this much this soon.
My last entry was titled, "White House Misplays Grassley for a Chump."  It referenced (without linking) a New York Times "news" story saying that the President would put Senate Judiciary Chairman Chuck Grassley "in an awkward dilemma" should Grassley choose to obstruct the possible Supreme Court nomination of fellow Iowan, long-time criminal defense lawyer, and now Judge, Jane Kelly.

The Times also had this juicy paragraph (emphasis added), perhaps explaining why it believes that Sen. Grassley would face so serious a problem by opposing a hard Left replacement for Antonin Scalia:

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.

I went all the way through Stanford Law School and forty years of practice without knowing, until today, that there is "constitutional mandate to provide...consent."  I had thought the Senate could withhold consent.

With the NYT, you learn something new every day.

White House Misplays Grassley for a Chump

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My friend Ed Whelan, a former clerk to Justice Scalia and now a writer for NRO's "Bench Memos," has a piece today from which the title of this post is taken.  Ed writes:

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.
Democrats are outraged that the Republican-controlled Senate might simply refuse to hold hearings on a qualified Supreme Court nomination made by President Obama, leaving the filling of the seat to the next President.

Marc Thiessen has yet another "where you stand depends on where you sit" story in the WaPo:

On Jan. 27, 1992, President [George H. W.] Bush nominated [John G.] Roberts to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was immensely qualified for the job. He had served since 1989 as principal deputy solicitor general of the United States, arguing 39 cases before the Supreme Court, making him one of the country's most experienced Supreme Court litigators.

But his nomination to the federal bench was dead on arrival at [Sen. Joseph] Biden's Senate Judiciary Committee. Biden refused to even hold a hearing on Roberts's nomination, much less a vote in committee or on the Senate floor. Roberts's nomination died in committee and was withdrawn on Oct. 8, 1992. It was only about a decade later that he was re-nominated to the federal bench by President George W. Bush -- and we all know the rest of the story.
Democrats have no monopoly on hypocrisy in this area, as I have noted before, but they do seem to be taking it to a new level.  They are calling the stalling unconstitutional.  No, it is not that, and I don't recall any Republicans saying it was when the shoe was on the other foot.  This is bare-knuckle politics, and it seems that with every cycle the Democrats take nastiness to a new level when they are blockers and scream louder when they are the blockees.

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