Recently in Judicial Selection Category

The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.

The Scope of the Victory

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The Washington Post's coverage of Trump was as biased as I have seen during a campaign.  It did not outdo the NYT, but neither did it make much of an effort to resemble neutral journalism.  It was one snarky, condescending article after the next. I'm expecting oddles of sour grapes over the next few days.  For now, however, it does an accurate, short summary of the extent of Trump's victory:

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.

I want to emphasize especially the key role Sen. McConnell played in giving our country the opportunity, at least, to build on Justice Scalia's legacy rather than overrule it bit-by-bit.
From the Stuff Stumbled Upon While Looking for Something Else File comes this press release of three weeks ago from Arizona Governor Doug Ducey:

Governor Doug Ducey today announced the appointment of Maricopa County Superior Court Judge Paul McMurdie to the Arizona Court of Appeals, Division One.

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.

It was in those pre-bench capacities that I had the pleasure of working with Paul.  Well done, Gov. Ducey.

Photo Finish Senate

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In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch.  As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.

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.

No Blank Check for President Hillary

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It is likely that Hillary Clinton will be elected President.  I don't have to like it,* but the polls say what they say.  The question is what can be done to cabin her decidedly unhealthy agenda (exemplified by, among other things, her embrace of the Black Lives Matter movement).

One thing that can be done is to keep the Senate in the hands of the opposition party. This will have, among other salutary effects, an influence on how far to the left she might go in making Supreme Court and court of appeals picks.  

Thus, I have contributed to the campaigns of a number of Republican Senate candidates, including Rubio, Ayotte, Toomey, Heck, Young and Burr.  Rubio is likely to win; the others are close races that could go either way.  

*  Not that I much like any probable outcome of the Presidential race, as it is presently constituted.  

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?

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