Recently in Judicial Selection Category

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.
A:  No.

In all the talk about how the President is going to persuade (some might say "snooker" or "bully") Senate Republicans into accepting his nominee to replace Justice Scalia, one question seems never to get asked:  Do Americans actually want a more liberal Supreme Court?

That is what they are 100% certain to get with anyone Mr. Obama nominates. Justice Scalia was almost universally viewed as the leader of the conservative Justices.  He was probably the most conservative Justice of my lifetime.

As the Court was about to begin its Term last October, with Justice Scalia still sitting, Gallup asked whether respondents thought the Court was too liberal, too conservative, or about right.  The results:  40% about right, 20% too conservative, and 37% too liberal.  In other words, roughly twice as many Americans thought the Court is too liberal as thought it's too conservative.

Put another way, over three-quarters of the country thought the Court with Justice Scalia was either about right or too liberal.

When Mr. Obama comes persuading, or snookering, or bullying, that's all the Republicans need to say:  "The country does not want the Court moved to the Left, and we are going to do what the country wants, not what the Administration wants. The country will have the opportunity in November to take a different direction if it so chooses, and we are going to preserve that opportunity for democracy to work."  End of story.

The One Day Trial Balloon

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CBS News and some Twitter feeds are reporting that Gov. Brian Sandoval has asked not to be considered for the Supreme Court. Yesterday, the anti-Scalia Left was giddy that President Obama might have outfoxed the Stupid Party again.  See this post on SL&P.

So much for that.

I don't know the reason he withdrew so quickly.  One could be that White House Counsel's Office discovered some scandal or conflict of interest that was going to be a problem.  Another could be that the hydraulic pressure within the Democratic Party is demanding an aggressively far Left candidate.  A third is that the White House did some calls yesterday and figured out, correctly, that it couldn't hoodwink enough Republican senators to get Sandoval through.

The optimist in me would like to think that Gov. Sandoval sat down with himself and concluded that, for adept as he might be as a state politician, he has nothing approaching the learning, intellect, or legal compass to qualify him to succeed a giant like Antonin Scalia.

If that's it, my hat is off to Brian Sandoval.
A: Because Gov. Sandoval, though like David Souter nominally a Republican, is a liberal, a buddy of Harry Reid, and a guy who's so political he resigned a federal judgeship after serving less than four years in order to run for governor (giving Obama the seat to fill).

I thought this paragraph from a Politico article quite revealing:

But even compared to Kasich, Sandoval's record wouldn't be easy [for Republicans] to embrace if you're running for president. The tax increases Sandoval signed have since funded a landmark overhaul in public education--likely to become his signature achievement and a bold gamble meant to turn around what is frequently ranked the worst state education system in the country. Yet education is simply the most recent of a long list of Sandoval's conservative heresies: The abortion rights governor has embraced Obamacare; lauded immigration reform and DREAMers; fiercely championed renewable energy; and taken lesser known actions on police body cameras, driver's licenses for undocumented aliens and multiple moves to squelch Republican-led tort reform.

The idea that a Republican Senate would go in the tank for Mr. Sandoval is a Scalia anti-matter pipe dream (which of course is why the press is pumping it).

Once again:  It's not about the particular nominee.  It's about whether the electorate in a little over eight months should have a say in the direction of the Supreme Court for the next generation.  


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