Recently in Judicial Selection Category
Because his adopted party maintained its majorities in the Senate and the House, Trump can now advance a very ambitious agenda. He gets to pick Antontin Scalia's replacement, vindicating Mitch McConnell's decision to deny Merrick Garland a hearing and ensuring that the GOP will control all three branches of government. Because Barack Obama has relied so much on executive actions since the 2010 midterms, if he chooses, Trump can roll back many of the president's signature achievements. The Republican Congress can also use budget reconciliation to eviscerate Obamacare. TPP is definitively dead.
Governor Doug Ducey today announced the appointment of Maricopa County Superior Court Judge Paul McMurdie to the Arizona Court of Appeals, Division One.It was in those pre-bench capacities that I had the pleasure of working with Paul. Well done, Gov. Ducey.
Judge McMurdie has served on the Maricopa County Superior Court since 2005. He has presided over criminal, civil, and family law cases, and is currently the Presiding Family Court Judge.
Prior to his trial court appointment, Judge McMurdie worked as Division Chief of Appeals and Research at the Maricopa County Attorney's Office, and also as Chief Counsel of the Criminal Appeals Section of the Arizona Attorney General's Office, under Attorneys General Grant Woods and Janet Napolitano.
There is something to be said for having the Senate and the White House in control of opposing parties. We will get more moderate judges that way. Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.
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?