SCOTUS Review

 

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supreme court graphicNews and comment regarding the Supreme Court of the United States (SCOTUS) are shown below. The links to a sample of significant reports are drawn primarily from major national outlets or from those featuring specialized expertise. They are arranged in reverse chronological order.

-- Andrew Kreig, J.D., M.S.L. / Justice Integrity Project editor

Note: Excerpts below are from the authors' words except for subheads and Editor's notes" such as this.

2018

September

chuck grassley screams at patrick leahy confidential records screenshot

Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) screams at his longtime Democratic colleague Pat Leahy of Vermont during the Kavanaugh hearing, in which Leahy and other Democrats have accused the nominee of perjuring himself by denying use of stolen Democratic Senate documents (screenshot).

Sept. 21

washington post logochristine blasey ford high schoolWashington Post, Trump, in overt attack on Kavanaugh accuser, questions her credibility, John Wagner and Seung Min Kim​, Sept. 21, 2018. President Trump contended that Christine Blasey Ford, who has accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her when they were teenagers, would have reported the attack to law enforcement if it “was as bad as she says.”

Trump’s tweets came as lawyers for Ford (shown in a high school photo) continued negotiations about conditions under which she might testify before the Senate Judiciary Committee.

washington post logoWashington Post, Kavanaugh accuser open to testifying later next week, dismisses theory of a different attacker, Seung Min Kim, Josh Dawsey and Emma Brown, Sept. 21, 2018 (print edition). A lawyer for Christine Blasey Ford said she “wishes to testify, provided that we can agree on terms that are fair and which ensure her safety.” Brett M. Kavanaugh’s Supreme Court nomination was roiled further by tweets from a friend who named another classmate as Ford’s possible attacker.

djt brett kavanaugh family 7 9 18 Small

President Trump introduces U.S. Circuit Judge Brett Kavanaugh, shown with family, as his nominee to the U.S. Supreme Court on July 9, 2018 (White House photo)

Center for American Progress, Opinion: Kavanaugh’s Credibility Chasm, Jake Faleschini and Jesse Lee, Sept. 21, 2018. Amid a crisis in Judge Brett Kavanaugh’s Supreme Court nomination process, new reports suggest that President Trump’s nominee may have been personally involved in a public relations effort to shift blame for sexual assault allegations made against him onto another specific individual with unsubstantiated speculation from an ally.

This alone would demonstrate a deep breach of integrity and credibility and would be disqualifying in itself for a position on the highest court in the land. Unfortunately, it also aligns with an entire career using dishonest tactics and statements to advance his personal ambition.

In Judge Brett Kavanaugh’s first words on the national stage as a Supreme Court nominee, he made two plainly false statements in quick succession. In a vacuum, they might be dismissed as overly effusive pleasantries; in fact, they were part of a decades-long pattern of defaulting toward deception whenever useful.

“Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh stated. This immediately stood as a refutation of Trump’s previous nominee Neil Gorsuch, who had in fact condemned Trump’s well-known, ruthless attacks on the judiciary, reportedly leaving Trump outraged. Kavanaugh was making clear there that he would offer no such dissent. In fact, Kavanaugh later refused to echo Gorsuch’s criticism of Trump in his own hearing.

Later in his initial statement, Kavanaugh said, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Again, this claim is ridiculous on its face and is reminiscent of early Trump Cabinet meetings where attendees would heap superlative praise upon Trump. But it also spoke to a deeper deception: In fact, Trump had explicitly promised to choose his nominee off of a pre-approved list from conservative advocacy groups, a list to which Kavanaugh’s name had mysteriously been added just months before.

More generally, though, Kavanaugh’s statement shows he opts to say what is best in the moment in order to advance his career. This is even if those statements were objectively — even obviously — misleading. However, this is no new tactic for Kavanaugh. As shown below, this has been a hallmark of his entire career.

  • Leaking information for Ken Starr
  • Accessing stolen documents
  • Warrantless wiretapping
  • Judicial Nominations
  • Sexual harassment allegations against Judge Alex Kozinski
  • Roe v. Wade
  • Presidential Power

Kavanaugh began his career as a political operative willing to use whatever deceptive means necessary — from leaking in the special counsel’s office to dealing with stolen documents in court fights while in the White House. Worse than that, though, when he attempted to transition into a career in the judicial branch, he neither changed his ways nor owned up to his past behavior. Instead, he repeatedly misled the Senate about his prior deceptions, from one confirmation hearing to the next.

Kavanaugh may have rightly believed that, with the Senate controlled by other partisan Republicans, lying and misconstruing facts regarding his record would have no consequence. Indeed, Senate Republicans have blocked any review of the vast majority of his record, so this list of false and misleading statements represents only a small portion of the total.

But, as his Supreme Court confirmation process comes to a head — hinging precisely on whether his denials of credible accusations against him should be believed — Kavanaugh’s record of almost casual deception has caught up with him. The American people simply have no reason to believe him.

Sept. 20

washington post logojennifer rubin new headshotWashington Post, Opinion: Republicans, be forewarned: Kavanaugh’s accuser has options, Jennifer Rubin, right, Sept. 20, 2018. Trump, whom a flock of women has accused of harassment and assault, and the all-male Republican contingent on the Senate Judiciary Committee might think they have Christine Blasey Ford cornered. The reality is that she has many options, some of which are far more dangerous to Republicans than what she has demanded, namely an FBI investigation.

Ford might choose to appear on Monday, and make a powerful opening statement accusing Republicans of running a sham investigation. Committee Chairman Charles Grassley (R-Iowa) has figured out it would be a good idea to interview her in advance of Monday’s hearings, but the staffers conducting the interview would be unlikely to have the ability or the will to follow up on investigative leads.

Ford can use the hearing to put the senators, who have behaved shabbily, on defense.

republican elephant logoFord has another option: Hold a news conference with her own experts and make the case directly to the American people. She can sit down for an interview with a respected TV journalist. She can say whatever she wants, make certain that experts are heard and even recount the much more extensive investigative efforts undertaken when Hill stepped forward. To make her case to the American people and convince them that she is sincere, honest and credible, Ford doesn’t need the Senate.

Ford also might have the ability to go to local police to investigate if the White House refuses to activate the FBI. The Hill reports: “Can Brett Kavanaugh be investigated for an attempted rape he allegedly committed over three decades ago? In Maryland, it’s entirely possible under the law, according to some experts.

washington post logoWashington Post, ‘These are the stories of our lives’: Prep school alumni hear echoes in assault claim, Joe Heim, Sept. 20, 2018 (print edition). Lettina Lanyi remembers. It was 1986, and she was in eighth grade.

christine blasey ford high schoolLanyi has thought about that night often since Sunday, when Christine Blasey Ford (shown at right in a high school photo) publicly accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her when she was a 15-year-old student at Holton-Arms School and he was a 17-year-old student at Georgetown Prep. She has thought about stories of male entitlement and drunken sexual assault she heard from classmates while she was a student at Prep’s Bethesda neighbor, Stone Ridge of the Sacred Heart, and the many more stories she has heard in the years since their graduation.

There was a lot of shame and stigma then if a girl was raped, so girls tried to hide it. They didn’t tell anyone,” Lanyi said. “The term ‘date rape’ wasn’t something that even existed then. So if it happened, it was always kind of the girl’s fault.”

Lanyi’s recollection of a private school culture suffused by alcohol and drugs — and frequent if unreported sexual assault or misbehavior — is widely shared by students who attended those schools in the 1980s. It was, they recalled, an era marked by excess and illegality that went widely unchecked by parents and school leaders who were unaware or uninterested in cracking down on the behavior.

On Tuesday, Lanyi helped launch an online letter of support for Ford from women and men who grew up in the upper Northwest Washington neighborhoods and Maryland suburbs that fed into the exclusive private schools and country clubs during the same era that Ford and Kavanaugh attended their schools.

brett kavanaugh 1983 yearbookThe letter’s message to Ford is unambiguous: “We believe you. Each one of us heard your story and not one of us was surprised. These are the stories of our lives and our friends’ lives.” More than 300 people signed the letter, including graduates of Stone Ridge, Georgetown Prep, Georgetown Visitation Preparatory School, Gonzaga and many others.

A similar letter of support for Ford from Holton-Arms graduates bore 925 signatures Wednesday, including from actress Julia Louis-Dreyfus, Class of 1979. The letters came in response to a missive Friday signed by 65 women supporting Kavanaugh (shown in his 1983 yearbook photo) after the assault allegations emerged but before Ford came forward.

“We are women who have known Brett Kavanaugh for more than 35 years and knew him while he attended high school between 1979 and 1983. For the entire time we have known Brett Kavanaugh, he has behaved honorably and treated women with respect,” read the letter, from women who attended schools including Visitation, Stone Ridge and Holton-Arms.

This story is based on interviews with two dozen former students, many of whom asked not to be identified because of how tightly knit and powerful the alumni from those schools are, and because they fear retribution or harassment for speaking out on the allegations engulfing Kavanaugh’s nomination.

washington post logoWashington Post, Kavanaugh accuser won’t testify Monday but is open to doing so later next week, Seung Min Kim, John Wagner and Emma Brown, Sept. 20, 2018. ​In an email to the Senate Judiciary Committee, a lawyer for Christine Blasey Ford said she wanted to negotiate conditions for her testimony, saying, that she “wishes to testify, provided that we can agree on terms that are fair and which ensure her safety.”

Roll Call, Judiciary Staffer’s Tweets Fuel Fight Over Kavanaugh Accuser, Todd Ruger, Sept. 20, 2018. ‘Unfazed and determined. We will confirm Judge Kavanaugh,’ committee’s chief staffer says.

Amid a pitched partisan battle over how the Senate handles an allegation that Supreme Court nominee Brett Kavanaugh sexually assaulted a woman decades ago as a teenager, liberal groups on Thursday seized on comments from a Judiciary Committee staffer to paint the process as a sham.

Mike Davis, the committee’s chief staffer for nominations, tweeted twice overnight about his key role in the committee’s review of Christine Blasey Ford’s allegation, as well as criticism of Ford’s attorneys and his desired outcome of the process.

“Unfazed and determined. We will confirm Judge Kavanaugh. #ConfirmKavanaugh #SCOTUS,” Davis tweeted at 11 p.m. Wednesday.

wayne madsen new headshotWayne Madsen Report (WMR), Opinion: Kavanaugh and Georgetown Prep: Pedophilia acceptance, Wayne Madsen, Sept. 20, 2018 (subscription required, with excerpt below by permission). Investigative reporter and author Wayne Madsen, right, is a former Navy intelligence officer who was appointed to be a temporary FBI special agent during a period in the 1980s to help convict his Navy commanding officer on pedophilia charges.

Brett Kavanaugh, Donald Trump's dubious nominee for the Supreme Court, not only faces questions about his views on a woman's right to choose her own health decisions and his own questionable past treatment of women, but his elite high school.

Georgetown Preparatory High School in North Bethesda, Maryland has been a hotbed for Roman Catholic sex abuse of minors. As a member of the Supreme Court, Kavanaugh would become the court's fifth Catholic judge. His decisions on cases involving the cover-up of child sex abuse by religious organizations and politically powerful individuals could dictate for decades to come how the nation deals with the issue of sex abuse of minors.

Mueller Probe: Election Subversion

ny times logorobert mueller full face fileNew York Times, Investigation: The Plot to Subvert an Election, Scott Shane and Mark Mazzetti, Sept. 20, 2018 (print edition). For two years, Americans have tried to absorb the details of the 2016 interference by Russia: hacked emails, social media fraud, possible espionage — and President Trump’s claims that it’s all a hoax. We unravel the story so far. Special Counsel Robert Mueller III is shown at right.

washington post logoWashington Post, Trump feels angry, unprotected amid mounting crises, Ashley Parker and Philip Rucker, Sept. 20, 2018 (print edition). Publicly, President Trump is going through the ordinary motions of being president. But behind the scenes, he is confronting broadsides from every direction — legal, political and personal.

Kavanaugh Accuser

ny times logoNew York Times, From the Anonymity of Academia to the Center of a Supreme Court Confirmation, Elizabeth Williamson, Rebecca R. Ruiz, Emily Steel, Grace Ashford and Steve Eder, Sept. 20, 2018 (print edition). Dr. Blasey, a researcher and statistician, was reluctant to come forward with her allegation that Judge Kavanaugh sexually assaulted her.

christine blasey fordThe text message from Christine Blasey Ford, shown left in a file photo, this summer worried her college best friend, Catherine Piwowarski. Over their years of friendship — as roommates, bridesmaids and parents on opposite coasts — Dr. Blasey wanted to know, had she ever confided that she had been sexually assaulted in high school?

No, Ms. Piwowarski said she texted back, she would have remembered that, and was everything O.K.? Dr. Blasey didn’t want to speak in detail quite yet, her friend recalled her responding. “I don’t know why she was asking that or what it ultimately meant or didn’t mean,” Ms. Piwowarski said in an interview, but she remembers thinking that the question betrayed deep turmoil.

ny times logoNew York Times, Dr. Blasey has been the target of widespread social media disinformation since she came forward. We debunk five viral rumors, Kevin Roose, Sept. 20, 2018 (print edition). Just minutes after Christine Blasey Ford, a California-based psychologist, went public with accusations of teenage sexual assault against Judge Brett M. Kavanaugh, the Supreme Court nominee, internet investigators began combing her past for clues about her possible motives, and trying to cast doubt on the veracity of her claims.

bill walkerState of Alaska, Alaska's Governor and Lieutenant Governor oppose Kavanaugh's confirmation, Sept. 20, 2018. Governor Bill Walker, right, and Lieutenant Governor Byron Mallott [Independents] on Thursday offered the following statement:

We oppose the confirmation of Brett Kavanaugh to the U.S. Supreme Court. One of our top priorities as Governor and Lieutenant Governor is expanding affordable healthcare access to all Alaskans. We supported increasing the number of people eligible to receive health insurance by increasing the pool of those who have access to Medicaid, and we have also championed protections for Alaskans with pre-existing health conditions.

Another priority of our administration is protecting the rights of working Alaskans. Mr. Kavanaugh’s record does not demonstrate a commitment to legal precedent that protects working families. Key aspects of our nation’s healthcare and labor laws may be at risk if Mr. Kavanaugh receives a lifetime appointment. brett kavanaughMr. Kavanaugh’s appointment could also jeopardize the Indian Child Welfare Act, Alaska Native Claims Settlement Act, and other laws that enable tribal self-determination due to his overly narrow view of the relationship between federal and tribal governments. Alaska is home to 227 tribes, nearly half of all tribes in our nation. Finally, we believe a thorough review of past allegations against Mr. Kavanaugh, left, is needed before a confirmation vote takes place. Violence against women in Alaska is an epidemic. We do not condone placing someone into one of our nation’s highest positions of power while so many key questions remain unanswered.

ny times logoNew York Times, Evangelical Leaders Are Frustrated at G.O.P. Caution on Kavanaugh Allegation, Jeremy W. Peters and Elizabeth Dias, Sept. 20, 2018. Ralph Reed, the social conservative leader, said if Senate Republicans fail to confirm Judge Brett M. Kavanaugh for the Supreme Court, “it will be very difficult to motivate and energize faith-based and conservative voters in November.”

bill yeomans afj cropped CustomAlliance for Justice, Opinion: 8 Reasons to Expect Kavanaugh’s Nomination to Fail, Bill Yeomans, right, Sept. 20, 2018. The accusation by Dr. Christine Blasey Ford that a drunken 17-year old Brett Kavanaugh attempted to rape her has imperiled Kavanaugh’s Supreme Court nomination. Here are eight reasons why Judge Kavanaugh’s nomination may fail.

1. Dr. Blasey Ford’s credibility is virtually unassailable.

washington post logoWashington Post, Kavanaugh’s unlikely story about Democrats’ stolen documents, Salvador Rizzo, Sept. 20, 2018 (print edition). As a White House lawyer, Kavanaugh received insider information taken from Democrats’ files but has repeatedly said he never suspected that his source was stealing it. These claims defy logic.

Trump Watch

abc news logoABC News, Michael Cohen spoke to Mueller team for hours; asked about Russia, possible collusion, pardon: Sources, George Stephanopoulos, Eliana Larramendia and James Hill, Sept. 20, 2018. President Donald Trump’s former personal attorney, Michael Cohen, has participated over the last month in multiple interview sessions lasting for hours with investigators from the office of special counsel, Robert Mueller, sources tell ABC News.
Interested in Russia Investigation?

Add Russia Investigation as an interest to stay up to date on the latest Russia Investigation news, video, and analysis from ABC News.

The special counsel’s questioning of Cohen, one of the president’s closest associates over the past decade, has focused primarily on all aspects of Trump's dealings with Russia -- including financial and business dealings and the investigation into alleged collusion with Russia by the Trump campaign and its surrogates to influence the outcome of the 2016 presidential election, sources familiar with the matter tell ABC News.

Sept. 19

'This Incident Did Happen'

christine blasey ford high schoolThe New Civil Rights Movement, 'This Incident Did Happen': Woman Says She Knew Kavanaugh and 'Many of Us Heard About It in School,' David Badash, Sept. 19, 2018. Christine Blasey Ford's high school who have signed on to a letter supporting her has come forward to say Brett Kavanaugh did sexually assault Christine Blasey in high school. Dr. Ford is shown at right in high school. She says she was 15 at the time she was attacked.

In postings to Facebook and Twitter, which she says she has since deleted because the media is contacting her and she is unsure of how to move forward, Christina King writes that at the time, 'many of us heard about it in school and Christine's recollection should be more than enough for us to truly, deeply know the accusation is true.'

King, who has also been identified as Christina King Miranda, says drinking in those days at these private Catholic prep schools was 'out of control.'

See also, OpEdNews, 'This Incident Did Happen': Woman Says She Knew Kavanaugh and 'Many of Us Heard About It in School, Rob Kall (Founder and publisher of prominent progressive site OpEdNews that has extensive social media capabilities), Sept. 19, 2018. Quick Link: 'This Incident Did Happen.'

Sept. 18

cnn logoCNN, Ford wants FBI investigation before testifying, Sophie Tatum, Sept. 18, 2018. The woman accusing Supreme Court nominee Brett Kavanaugh of sexual assault says the FBI should investigate the incident before senators hold a hearing on the allegations.

In a letter addressed to Senate Judiciary Chairman Chuck Grassley of Iowa, and obtained by CNN's "Anderson Cooper 360," Christine Blasey Ford's attorneys argue that "a full investigation by law enforcement officials will ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner, and that the Committee is fully informed before conducting any hearing or making any decisions."

The letter from Ford's lawyers notes that despite receiving a "stunning amount of support from her community," Ford has also "been the target of vicious harassment and even death threats" and has been forced to leave her home.

"We would welcome the opportunity to talk with you and Ranking Member Feinstein to discuss reasonable steps as to how Dr. Ford can cooperate while also taking care of her own health and security," the letter from Ford's lawyers said.

"What we're saying is there should be an investigation because that's the right thing to do," Ford's attorney Lisa Banks told Cooper.

"She is prepared to cooperate with the committee and with any law enforcement investigation," she added.

The letter comes after a day of uncertainty about whether the hearing scheduled for Monday would even take place, as Republicans continued to emphasize their repeated efforts to reach out to Ford.

Democrats have pushed back on the hearing. All 10 Democrats on the Senate Judiciary Committee sent a letter on Tuesday to FBI Director Christopher Wray and White House counsel Don McGahn arguing that the FBI should conduct an investigation prior to a hearing.

.senate gop judiciary

Republican U.S. Senate Judiciary Committee Members

Yahoo News, Analysis: Republican men — and not a single GOP woman — will be Christine Blasey Ford's interrogators on the Senate Judiciary Committee, Alexander Nazaryan, Sept. 18, 2018. Next week, Christine Blasey Ford will likely face intense questioning from Republicans on the Senate Judiciary Committee about the truthfulness of her accusations against Brett Kavanaugh, the Supreme Court nominee, who she says attempted to rape her during a party in the 1980s. Her turn on Capitol Hill could decide Kavanaugh’s suddenly uncertain fate, as well as the Supreme Court’s direction for a generation.

republican elephant logoFord will face questions from the 11 Republicans on the Senate Judiciary Ford will face questions from the 11 Republicans on the Senate Judiciary Committee, all of them men, with an average age of 62. (The chairman, Chuck Grassley of Iowa, the second-oldest sitting senator, is 85.) In the committee’s 202-year history, it has not had a single Republican woman. Four of the 10 Democrats are women, including ranking member Sen. Dianne Feinstein of California, who is a few months older than Grassley. The committee has never been chaired by a woman.

The spectacle of Ford, 51, being interrogated about her sexual history by older men could present an uncomfortable sight that the White House may take great pains to avoid. The outrage over that discrepancy, however, is already building. “In the year 2018, a group of white men has essentially complete control over lifetime nominations to an entire branch of government,” tweeted Robert Reich, the former Labor secretary and current Berkeley professor. The message was retweeted more than 2,000 times

In the last 40 years, use of the judiciary to advance ideological goals has rendered the process of nominating judges highly political, with nominees evaluated on a narrow range of cultural issues, notably abortion, gun control and, until recently, gay marriage. That has tended to turn the Senate Judiciary into a hotbed of assertive ideologues, including, recently, Jeff Sessions and Ted Cruz. GOP women have made their contributions elsewhere, effectively ceding judicial nominations to their male counterparts.

chuck grassley oRoll Call, Grassley Says Monday Hearing Not Likely Without Kavanaugh Accuser, John T. Bennett, Sept. 19, 2018. Senate Judiciary Chairman Charles E. Grassley, right, said Wednesday a planned Monday hearing on sexual assault allegations against Supreme Court nominee Brett Kavanaugh would likely not go on without accuser Christine Blasey Ford.

Asked about Ford saying she wouldn’t appear on Monday, the chairman indicated it would not go on without the accuser present because the nominee would not know the full scope of allegations against him. Any decision to cancel that session, Grassley said, will be made at the “last” possible minute.

washington post logoWashington Post, Democrats protest plan to limit witnesses at new Kavanaugh hearing, John Wagner, Seung Min Kim and Robert Costa, Sept. 18, 2018. No. 2 Senate Republican sharply questions credibility of Kavanaugh accuser·​The No. 2 Republican in the Senate on Tuesday sharply questioned the credibility of the woman who has accused Judge Brett Kavanaugh of sexual assault, as GOP leaders indicated they will limit witnesses at next week’s hearing to just the Supreme Court nominee and his accuser.

john cornyn o SmallSpeaking to reporters, Sen. John Cornyn (R-Tex.), right, said he was concerned by “gaps” in the account of Christine Blasey Ford, a psychology professor in California, who told The Washington Post in an interview published Sunday that Kavanaugh drunkenly pinned her to a bed on her back, groped her and put his hand over her mouth at a house party in the early 1980s when the two were in high school.

“The problem is, Dr. Ford can’t remember when it was, where it was, or how it came to be,” Cornyn told reporters at the Capitol late Tuesday morning.

When asked whether he was questioning the accuser’s account — which Kavanaugh has repeatedly denied — Cornyn said, “There are some gaps there that need to be filled.”

His comments came shortly after Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) outlined a plan to limit testimony at Monday’s planned hearing to that provided by Kavanaugh and Ford — which brought cries of protest from Democrats.

They insisted that other witnesses also be called, including Mark Judge, a Kavanaugh friend who Ford said witnessed the assault. “What about other witnesses like Kavanaugh’s friend Mark Judge?” ranking Democrat Dianne Feinstein of California said in a statement. “What about individuals who were previously told about this incident? What about experts who can speak to the effects of this kind of trauma on a victim? This is another attempt by Republicans to rush this nomination and not fully vet Judge Kavanaugh.”

Speaking to reporters later, Grassley defended his plan. “We’ve had two people that want to tell their story and that’s what we’re gonna do,” he said. Pressed about the precedent of the Hill hearing, Grassley said: “You’re talking about history. We’re not looking back. We’re looking forward.”

Kavanaugh was at the White House on Tuesday for a second day in a row, but Trump said he has not spoken to him.

ny times logoNew York Times, Kavanaugh and His Accuser Will Both Testify Monday, Sheryl Gay Stolberg and Julie Hirschfeld Davis, Sept. 18, 2018 (print edition). The chairman of the Senate Judiciary Committee, under mounting pressure from senators of his own party, will call President Trump’s Supreme Court nominee, Judge Brett M. Kavanaugh, and the woman who has accused him of sexual assault before the committee on Monday for extraordinary public hearings just weeks before the midterm elections.

chuck grassley oSenator John Kennedy, Republican of Louisiana, told reporters Monday afternoon that the chairman, Senator Charles E. Grassley, right, Republican of Iowa, told senators there would be an “opportunity” for senators to hear from Judge Kavanaugh and his accuser, Christine Blasey Ford, in a public setting where senators would be able to ask questions. Both have said they are willing to testify. A Senate Republican aide confirmed that it would be on Monday, effectively delaying a planned committee vote on Judge Kavanaugh’s nomination, which had been scheduled for this Thursday.

The hearings will set up a potentially explosive public showdown, one that carries unmistakable echoes of the 1991 testimony of Anita Hill, who accused the future Justice Clarence Thomas of sexual harassment in an episode that riveted the nation and ushered a slew of women into public office. They will play out against the backdrop of the #MeToo movement, which has energized Democratic women across the nation.

anita hill 2013 documentary poster

Brandeis University professor Anita Hill, as portrayed in the 2013 documentary "Anita" based on her experiences testifying against future Supreme Court Justice Clarence Thomas

ny times logoNew York Times, Opinion: How to Get the Kavanaugh Hearings Right, Anita Hill, Sept. 18, 2018. The Senate Judiciary Committee has a chance to do better by the country than it anita hill clarence thomas time scandaldid nearly three decades ago.

Select a neutral investigative body with experience in sexual misconduct cases that will investigate the incident in question and present its findings to the committee. Outcomes in such investigations are more reliable and less likely to be perceived as tainted by partisanship. Senators must then rely on the investigators’ conclusions, along with advice from experts, to frame the questions they ask Judge Kavanaugh and Dr. Blasey. Again, the senators’ fact-finding roles must guide their behavior. The investigators’ report should frame the hearing, not politics or myths about sexual assault.

Do not rush these hearings. Doing so would not only signal that sexual assault accusations are not important — hastily appraising this situation would very likely lead to facts being overlooked that are necessary for the Senate and the public to evaluate. That the committee plans to hold a hearing this coming Monday is discouraging. Simply put, a week’s preparation is not enough time for meaningful inquiry into very serious charges.

WUSA (Washington, DC), Brett Kavanaugh high school yearbook raises new questions about Supreme Court nominee, Staff report, Sept. 18, 2018. Brett Kavanaugh's high school yearbook has pages dedicated to each graduating high school senior. Kavanaugh's page includes references to the "Keg City Club" and "100 kegs or bust."

Amid accusations of sexual assault against a woman while in high school, the high school yearbook of Supreme Court nominee Brett Kavanaugh has prompted more questions about his character.

brett kavanaugh flagKavanaugh, shown in a file photo, graduated from Bethesda’s Georgetown Prep high school in 1983.

Washington, D.C.-area attorney Seth Berenzweig received the yearbook from a woman who did not want her name revealed. Berenzweig says she brought it forward after seeing Judge Kavanaugh’s repeated denial of engaging in inappropriate behavior with a then 15-year-old girl at a high school party.

“The question of integrity and character and fitness,” said Berenzweig. “There’s information here that appears to potentially be inconsistent with what the judge said earlier this morning.”

The yearbook has pages dedicated to each graduating high school senior. Kavanaugh’s page includes references to the "Keg City Club" and "100 kegs or bust."

“[He's] someone who apparently may have had a reputation for some heavy drinking,” said Berenzweig. Kavanaugh’s page also includes a reference to the ‘Devil’s Triangle’, one possible interpretation of which is slang for a sexual situation involving two men and a woman.

The allegations against Kavanaugh are that he attempted to sexually assault a woman at a high school party during his junior year. Published reports and the alleged victim’s recollection is that another Georgetown Prep student, and friend of Kavanaugh’s, named Mark Judge was also present in the room during the alleged assault. Lawyer says excerpts from Brett Kavanaugh's high school yearbook raises questions. Judge’s yearbook page includes this quote, “Certain women should be struck regularly, like gongs.” His page also references “100 kegs or bust” and “Alcoholics Unanimous [Founder].”

mark judge twitterRoll Call, Mark Judge, Possible Witness to Alleged Brett Kavanaugh Sexual Assault, Does Not Want to Testify, Niels Lesniewski, Sept. 18, 2018. The third person identified by Christine Blasey Ford as having been present in the room during what she alleged was a sexual assault by Judge Brett Kavanaugh wants no part of the Judiciary Committee proceedings. Mark Judge is shown at right.

washington post logoWashington Post, Trump says he feels ‘badly’ for Kavanaugh: ‘This is not a man who deserves this,’ Seung Min Kim, Robert Costa and John Wagner, Sept. 18, 2018.  President Trump said during a news conference at the White House that he supports the congressional hearing on an allegation that Brett M. Kavanaugh sexually assaulted a woman in high school, because there shouldn't be any doubt about his innocence. Trump also blamed Democrats for not bringing the allegation forward sooner.

Palmer Report, Opinion: Susan Collins just threw a big monkey wrench into the GOP’s Brett Kavanaugh plot, Bill Palmer, Sept. 18, 2018. Even after the Republican leadership announced last night that it was agreeing to delay the Senate Judiciary Committee vote on Supreme Court nominee Brett Kavanaugh, it was clear the GOP was still playing games. This was set up as a rush job in which Kavanaugh and his accuser Dr. Christine Blasey Ford would each quickly testify on Monday before any real investigating could be done. Now Republican Senator Susan Collins has thrown a big monkey wrench into that plan.

susan collins oHere’s what Susan Collins, right, tweeted this afternoon: “I’m writing to the Chairman & RM of Judiciary Cmte respectfully recommending that at Monday’s hearing, counsel for Prof. Ford be allocated time to question Judge Kavanaugh & counsel for the Judge be granted equal time to question Prof. Ford, followed by questions from Senators. Such an approach would provide more continuity, elicit the most information & allow an in-depth examination of the allegations.” Wait, so what is she up to?

She has clearly decided that she wants Monday’s testimony to be something of substance, where Kavanaugh can be grilled by a legal professional in front of the cameras. Collins has to know that Kavanaugh, who has already proven himself to be an inept and self-contradictory witness on various matters, would fare poorly in such a scenario.

Sept. 17

washington post logoWashington Post, Kavanaugh accuser willing to testify, her lawyer says, John Wagner, Sept. 17, 2018. A lawyer for Christine Blasey Ford, the woman who said Judge Brett Kavanaugh assaulted her when the two were in high school, said Monday that Ford is willing to testify about the allegations before the Senate Judiciary Committee.

“She is. She’s willing to do whatever it takes to get her story forth,” lawyer Debra Katz said on NBC’s “Today” show when asked if her client would speak publicly about President Trump’s nominee to the Supreme Court.

Kavanaugh has denied the allegations, which have roiled his confirmation process. The White House indicated Monday that it is continuing to stand by Kavanaugh but expects Ford will offer testimony to the Judiciary Committee.

ny times logoNew York Times, Allegations Against Kavanaugh ‘Will Be Heard,’ Kellyanne Conway Says, Eileen Sullivan, Sept. 17, 2018. President Trump’s counselor said that she had spoken with Mr. Trump and senators and that the accuser “will be heard.”

Roll Call, Kavanaugh Would Testify Against Sexual Assault Allegation, John T. Bennett, Posted Sep 17, 2018. Supreme Court nominee Brett Kavanaugh said Monday he would testify to give his side of the story of an alleged 1982 incident when a California professor says he sexually assaulted her.

“This is a completely false allegation. I have never done anything like what the accuser describes — to her or to anyone,” Kavanaugh said in a statement released by the White House.

“Because this never happened, I had no idea who was making this accusation until she identified herself yesterday. I am willing to talk to the Senate Judiciary Committee in any way the committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity.”

The Hill, Alumnae of Kavanaugh accuser’s high school express support for her, Justin Wise, Sept. 17, 2018. Alumnae of Christine Blasey Ford’s high school are circulating a letter to show their support for her, after Ford came forward with sexual misconduct accusations against President Trump’s Supreme Court nominee, Brett Kavanaugh.

“We believe Dr. Blasey Ford and are grateful that she came forward to tell her story,” a draft letter from alumnae of Holton-Arms, a private girls school in Bethesda, Md., reads, as first reported by HuffPost. “It demands a thorough and independent investigation before the Senate can reasonably vote on Brett Kavanaugh’s nomination to a lifetime seat on the nation’s highest court.”

The letter, which says it’s from more than 200 alumnae from classes 1967 through 2018, added that Ford’s allegations about Kavanaugh are “all too consistent with stories we heard and lived while attending Holton.”

“Many of us are survivors ourselves,” it said. HuffPost reported that the letter had received three dozen additional signatures as of Monday morning.The report comes just a day after Ford detailed her allegations against Kavanaugh for the first time to The Washington Post.

Sept. 16

Kavanaugh Accuser Speaks Out

washington post logoWashington Post, Writer of confidential Brett Kavanaugh letter speaks out about her allegation of sexual assault, Emma Brown​, Sept. 16, 2018. Christine Blasey Ford alleges that Kavanaugh attacked her more than three decades ago when they were each in high school, an allegation the Supreme Court nominee has flatly denied.

brett kavanaughEarlier this summer, Christine Blasey Ford wrote a confidential letter to a senior Democratic lawmaker alleging that Supreme Court nominee Brett M. Kavanaugh sexually assaulted her more than three decades ago, when they were high school students in suburban Maryland. Since Wednesday, she has watched as that bare-bones version of her story became public without her name or her consent, drawing a blanket denial from Kavanaugh and roiling a nomination that just days ago seemed all but certain to succeed.

Now, Ford has decided that if her story is going to be told, she wants to be the one to tell it.

Speaking publicly for the first time, Ford said that one summer in the early 1980s, Kavanaugh and a friend — both “stumbling drunk,” Ford alleges — corralled her into a bedroom during a gathering of teenagers at a house in Montgomery County.

While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.

“I thought he might inadvertently kill me,” said Ford, now a 51-year-old research psychologist in northern California. “He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house.

Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.

Reached by email Sunday, Judge declined to comment. In an interview Friday with The Weekly Standard, before Ford’s name was known, he denied that any such incident occurred. “It’s just absolutely nuts. I never saw Brett act that way,” Judge said. He told the New York Times that Kavanaugh was a “brilliant student” who loved sports and was not “into anything crazy or illegal.”

On Sunday, the White House sent The Post a statement Kavanaugh issued last week, when the outlines of Ford’s account first became public: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

For weeks, Ford declined to speak to The Post on the record as she grappled with concerns about what going public would mean for her and her family — and what she said was her duty as a citizen to tell the story.

Axios Sneak Peek, What's next: The politics of Kavanaugh's crisis, Jonathan Swan, Sept. 16, 2018. What was previously an allegation of sexual misconduct against Brett Kavanaugh by an unidentified person — without a lot of details or evidence — is now backed by a name, a specific allegation and therapist's notes. A senior Republican official involved in Kavanaugh's confirmation privately admitted to me that they felt queasy when they read The Washington Post story. And there was one sign tonight that these allegations could actually derail Kavanaugh's confirmation to the Supreme Court — which was previously a sure thing.

jeff flake oJeff Flake [the Arizona Republican at right] told the WashPost's Sean Sullivan that the Senate Judiciary Committee should wait to hear more from Kavanaugh's accuser, Christine Blasey Ford: "For me, we can’t vote until we hear more."

Why it matters: Doug Jones' special election victory late last year gave Democrats an extra seat on Senate Judiciary — there are now 11 Republicans and 10 Democrats — meaning that Flake's defection could stall Kavanaugh's confirmation process.

Since the story broke, I've spoken to four sources close to the Kavanaugh confirmation process. All were defiant and sought to raise doubts about the accuser's credibility and the holes in her story — though none were willing to do so on the record. They signaled potential lines of attack: the accuser's Democratic political background, lapses in her memory and the accounts of the 65 women who've known Kavanaugh since high school who've vouched for his character.

washington post logojennifer rubin new headshotWashington Post, Opinion: Kavanaugh’s accuser steps forward, Jennifer Rubin, right, Sept. 16, 2018. If Kavanaugh did what he was accused of and then has lied about it, he cannot be confirmed for the Supreme Court. It is noteworthy he has not denied the allegation under oath. The Senate therefore must bring him back as well as Ford to tell their accounts in public and under oath.

If the allegation is true — and at this point, none of us is in a position to assess credibility — he dare not lie under oath, putting at risk his current seat on the bench. (A far more difficult matter presents itself if Kavanaugh issues less than an absolute denial under oath but argues that this episode was decades old and therefore should not be disqualifying. I find it difficult to believe, however, that he’ll deviate from his initial, complete denial.)

susan collins oThe nomination fortunately does not hang on whether the White House or the vast majority of Senate Republicans behave responsibly, for surely they will not. Here, the two pro-choice Republican senators, Susan Collins, left, of Maine and Lisa Murkowski of Alaska, once more are in the driver’s seat. If they indicate they will not vote to confirm unless and until the matter is investigated, then the nomination stops in its tracks.

To Republicans and the judge himself who may think this is terribly unfair, I have two responses. First, the entire confirmation process has been rushed, incomplete and hampered by the partisan, limited release of relevant documents. Second, it may well be unfair to hear a last-minute allegation, but it would be much more unfair to allow someone who has lied to the American people about an alleged sexual assault to reach the highest court.

U.S. Senate Judiciary Committee Republicans

chuck grassley officialChuck Grassley, Iowa, Chairman, right. Orrin Hatch, UChuck Grassley, Iowa, Chairman.
Orrin Hatch, Utah.
Lindsey Graham, South Carolina.
John Cornyn, Texas.
Mike Lee, Utah.
Ted Cruz, Texas.
Ben Sasse, Nebraska.
Jeff Flake, Arizona.

Roll Call, Three Ways Kavanaugh Nomination Could Play Out After Accuser Speaks, John T. Bennett, Sept. 16, 2018. Female GOP senators could have big say in what happens nextPosted What was an anonymous letter with serious allegations against Supreme Court nominee are now vivid words from an accuser, putting a name and face on the charges and raising new questions about the nomination.

A California professor contends she instantly thought a “stumbling drunk” Kavanaugh might “inadvertently kill” her during a party in the early 1980s while they were in high school, breaking her public silence and handing Republican leaders and the White House tough decisions about what to do next.

“I thought he might inadvertently kill me,” Christine Blasey Ford told the Washington Post in an article that published Sunday afternoon. “He was trying to attack me and remove my clothing.” She also claims Kavanaugh and a friend trapped her in a bedroom during the party, with the high court nominee pinning her on a bed while his friend watched and groping her over her one-piece bathing suit. Ford says she was able to escape without injury.

The 51-year-old Ford first voiced her concerns to California Democratic lawmakers, including Senate Judiciary ranking member Dianne Feinstein, who last week cryptically announced she had referred a letter containing information about Kavanaugh to the FBI. Ford also contacted a Post tip line, but the interview marked the first time she had spoken publicly about the alleged incident.

Judiciary Chairman Charles E. Grassley, R-Iowa, last week teed up a committee vote on Kavanaugh’s confirmation for Thursday as he and Senate Majority Leader Mitch McConnell — and the White House — aim to hold floor votes and have Kavanaugh join the other eight Supreme Court justices by Oct.1.

But Ford’s public allegations could alter those plans. Here are three ways the nomination could play out after the accuser’s first public remarks.Kavanaugh drops out/White House pulls nomination

Sept. 15

ny times logoNew York Times, New Kavanaugh Disclosure Shows Little Sign of Impeding His Nomination, Carl Hulse, Sept. 15, 2018. Sudden new revelations in Supreme Court confirmation fights are not new. Anita Hill’s accusations of sexual harassment against Clarence Thomas surfaced after his initial hearings had concluded. Justice Neil M. Gorsuch, President Trump’s first nominee to the court, faced claims that he had plagiarized parts of his book just as his nomination headed toward a Senate floor vote.

Sept. 14

new yorker logoNew Yorker, A Sexual-Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress, Ronan Farrow and Jane Mayer, Sept. 14, 2018. On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

The woman, who has asked not to be identified, first approached Democratic lawmakers in July, shortly after Trump nominated Kavanaugh.

The allegation dates back to the early nineteen-eighties, when Kavanaugh was a high-school student at Georgetown Preparatory School, in Bethesda, Maryland, and the woman attended a nearby high school. In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her.

She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand.

She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.

In a statement, Kavanaugh said, “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

ny times logodianne feinsteinNew York Times, Dianne Feinstein Refers a Kavanaugh Matter to Federal Investigators, Nicholas Fandos and Catie Edmondson, Sept. 14, 2018 (print edition). The senior Democrat on the Senate Judiciary Committee referred information involving Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, to federal investigators on Thursday, but the senator, right, declined to make public what the matter involved.

Two officials familiar with the matter say the incident involved possible sexual misconduct between Judge Kavanaugh and a woman when they were both in high school. They spoke anonymously because they were not authorized to discuss the matter.

The statement by Senator Dianne Feinstein of California came a week before the Judiciary Committee is to vote on his nomination. “I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court,” Ms. Feinstein said in a statement. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.”

The information came in July in a letter, which was first sent to the office of Representative Anna Eshoo, Democrat of California, and accuses the judge of sexual misconduct toward the letter’s author, a person familiar with the letter confirmed.

washington post logoWashington Post, Bitter Senate fight to confirm Kavanaugh plunges deeper into chaos over letter, Seung Min Kim and Elise Viebeck, Sept. 14, 2018. The letter describes an alleged episode of sexual misconduct involving the Supreme Court nominee when he was in high school, according to a person familiar with the matter.

Politico, Sexual assault allegation roils Kavanaugh confirmation fight, Elana Schor, Burgess Everett and Eliana Johnson, Sept. 14, 2018. Republicans rushed to defend the Supreme Court nominee with a letter from women who've known him since high school.

Senate Judiciary Committee Republicans on Friday released a letter from 65 women who knew Brett Kavanaugh during his high school years calling him "a good person" — escalating their defense of the Supreme Court nominee as a decades-old sexual misconduct allegation surfaced.

Judiciary Chairman Chuck Grassley's (R-Iowa) office circulated the pro-Kavanaugh letter less than 48 hours after the committee's top Democrat, California Sen. Dianne Feinstein, referred the allegation against the nominee to the FBI. Feinstein, who declined to say when she first became aware of the accusation, said she had "honored [a] decision" by the woman making the charges to maintain confidentiality. But the senator's handling of the matter has stoked already-fierce partisan tensions over a confirmation the GOP is still pushing to wind up by the end of this month.

The woman leveling the charge against Kavanaugh attended a nearby high school at the same time as the nominee. She, Kavanaugh, and another high-school male were alone in a room together when the alleged misconduct took place, according to two sources. The New Yorker reported Friday that the woman alleged Kavanaugh had attempted to force himself on her while physically restraining her.

The flaring controversy has not shaken Republican plans to bring Kavanaugh's nomination to the Senate floor before the Supreme Court's new term begins in the first week of October. The Judiciary panel is still scheduled to vote on the nomination on Thursday, Grassley's office said.

The Senate has received an updated FBI background report on Kavanaugh that includes the letter, which means that senators will have access to the letter if they want to view it.

With Republicans holding a 51-49 advantage, Kavanaugh's prospects for approval are still on track despite his lack of 50 public "yes" votes — heightening the importance of the letter's effect on the Senate GOP's two female swing votes, Susan Collins of Maine and Lisa Murkowski of Alaska. Neither Collins nor Murkowski has expressed skepticism about the nominee.

Collins and Kavanaugh had an hour-long phone call on Friday, a spokeswoman said, though the contents of the call were not divulged. A spokeswoman for Murkowski did not respond to a request for comment.

In the letter that the GOP circulated, Kavanaugh's female contemporaries countered the damning portrayal of the nominee that has surfaced the past 24 hours. "Through the more than 35 years we have known him, Brett has stood out for his friendship, character, and integrity. In particular, he has always treated women with decency and respect," the women wrote. "That was true when he was in high school, and it has remained true to this day."

Democrats have remained notably mum about the situation since Thursday, even as liberal groups off the Hill call for a pointed push to withdraw Kavanaugh's nomination.

"That’s now in the hands of the FBI. That’s all I’m going to say about it," Sen. Mazie Hirono (D-Hawaii), who pressed Kavanaugh on the #MeToo movement during his confirmation hearing, told POLITICO’s Off Message podcast in an interview set to run Tuesday.

Brian Fallon, a former senior aide to Senate Minority Leader Chuck Schumer (D-N.Y.) who now helms the left-leaning group Demand Justice, nudged Democats for a more pointed response. "The message needs to be clear: withdraw," he said.

Undecided red-state Democrats were similarly tight-lipped following the report on the letter's content. Democratic Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, Claire McCaskill of Missouri, Doug Jones of Alabama and Jon Tester of Montana had no immediate comment. Tester is still trying to schedule an initial meeting with Kavanaugh and Manchin is seeking a second meeting.

The White House first heard vague rumors about the allegation against Kavanaugh late last week, but the specifics of the alleged high-school sexual assault landed on White House Counsel Don McGahn's desk on Thursday, hours after Feinstein referred the matter to the FBI.

McGahn received the letter from the FBI around noon and immediately passed it to Capitol Hill, according to a White House aide. Kavanaugh and a network of clerks and former clerks who have been working with him during the confirmation process immediately lurched into action, contacting more than five dozen women who have known the judge since high school to sign the letter attesting to his character.

Nonetheless, most Republicans on Capitol Hill preparing to defend Kavanaugh amid attacks from Democrats were not aware of the letter as recently as Thursday, according to two people working on the nomination. Grassley still had not seen the letter as of Friday, according to his office, although a White House aide said the Judiciary panel received a ronan farrowphysical copy of it within an hour after McGahn did.

Kavanaugh's denial may do little to stanch the damaging trickle of revelations. The co-author of the New Yorker's story, Ronan Farrow, right, has traveled to California in an attempt to persuade the woman behind the allegations to share her story, according to a source familiar with his reporting. The woman's letter was channeled to Feinstein as well as to Rep. Anna Eshoo (D-Calif.) through a Stanford Law School professor.

washington post logoWashington Post, Opinion: Brett Kavanaugh misled the Senate under oath. I cannot support his nomination, Patrick Leahy, Sept. 14, 2018 (print edition). Patrick Leahy, right, a Democrat, represents Vermont in the U.S. Senate and is a former chairman of the Senate Judiciary Committee..

Pat LeahyLast week, I uncovered new evidence that Supreme Court nominee Brett M. Kavanaugh misled the Senate during his earlier hearings for the D.C. Circuit Court by minimizing and even denying his involvement in Bush-era controversies. I gave him the opportunity to correct his testimony at his hearing last week; he chose instead to double down.

I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

Take his relationship with the ringleader of the “Memogate” scandal. Between 2001 and 2003, two Republican staffers regularly gained unauthorized access to the private computer files of six Democratic senators, including mine, taking 4,670 files on controversial judicial nominees.

Kavanaugh was asked more than 100 times about this scandal in 2004 and 2006. He testified repeatedly that he knew nothing about the source of the information; that he received nothing that even appeared to be prepared by Democratic staff; and that he never suspected anything unusual, or “untoward.”

But emails I released last week show that then-Republican Senate Judiciary Committee counsel Manuel Miranda regularly shared obviously ill-gotten, inside information with Kavanaugh, which Miranda often asked be kept secret.

washington post logoWashington Post, Opinion: What to do about the Kavanaugh allegation, Jennifer Rubin, Sept. 14, 2018. Post report: Supreme Court nominee Brett M. Kavanaugh on Friday “categorically” denied an allegation of potential sexual misconduct when he was in high school that has roiled the final days of an already contentious confirmation fight in the Senate.

Republicans managed to recruit 65 women to attest to Kavanaugh’s good character, but that’s obviously not dispositive of anything. (It is really speedy work, though, if they learned about the allegation just today.)

Whatever you think of Kavanaugh, this allegation poses a real dilemma. The Senate cannot do nothing with the information — but neither should it materially delay the proceedings. The committee will not vote on Kavanaugh’s confirmation until Sept. 20. That gives the committee plenty of time to search for witnesses and to put Kavanaugh back under oath, however briefly, for the sole purpose of asking him about the alleged incident.

The situation is unlike others we’ve all seen in the #MeToo era, in which powerful men were accused of sexual harassment or assault: Harvey Weinstein, Leslie Moonves, Al Franken, Eric Schneiderman, Roy Moore and others (and yes, there is a really, really big difference between what Franken was accused of and what, say, Moore was alleged to have done to minors). In all of those cases, at least some of the women identified themselves and stepped forward — the public and the accused could evaluate their credibility.

On a matter as serious as a Supreme Court nomination, one should not allow an accuser to maintain anonymity. It’s just not fair, and it’s not how our legal system is supposed to function

SCOTUSBlog, Friday round-up, Edith Roberts, Sept. 14, 2018 (Visit SCOTUSblog for hotlinks to original articles). For The New York Times, Catie Edmondson and Nicholas Fandos report that “[t]he senior Democrat on the Senate Judiciary Committee referred information involving Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, to federal investigators on Thursday, but the senator declined to make public what the matter involved.”

Additional coverage comes from Seung Min Kim and Elise Viebeck for The Washington Post, Richard Wolf for USA Today, Kristina Peterson and Jess Bravin for The Wall Street Journal, Burgess Everett and Edward-Isaac Dovere at Politico, and Jennifer Haberkorn for the Los Angeles Times, who reports that the Intercept, an online news publication that originally revealed the existence of the letter, “said the letter apparently describes an incident involving Kavanaugh and a young woman while they were in high school, but included no details.”

Nina Totenberg reports for NPR that “[t]he White House is accusing Senate Democrats of an unfounded ‘11th hour attempt to delay’ a vote on the nomination of Brett Kavanaugh to the U.S. Supreme Court.” The editorial board of The Wall Street Journal asserts that “[t]he episode says more about the desperation of Democrats than it does about Mr. Kavanaugh, and the real disgrace would be if Republicans did anything other than move promptly to a confirmation vote.”

At USA Today, Christal Hayes reports that “[a] watchdog group is asking the Justice Department to investigate a number of groups they say may be illegally pressuring Sen. Susan Collins to gain her vote against … Kavanaugh,” which “Collins says she sees … as an attempt to bribe her for the vote.” Geof Koss and Ellen Gilmer report for E&E News that “Sen. Lisa Murkowski is scrutinizing Supreme Court nominee Brett Kavanaugh’s record on tribal issues, as pressure grows from Alaska Natives to oppose President Trump’s latest pick for the high court.”

For this blog, in a post originally published at Howe on the Court, Amy Howe offers highlights from Kavanaugh’s responses to over 1,200 written questions submitted by Judiciary Committee members in the wake of the hearing. At Education Week, Mark Walsh reports that Kavanaugh explained in response to one question “that he assumed the father of a student killed in the Parkland, Fla., shooting who had approached him on the chaotic first day of his confirmation hearing was a protestor.”

At Rewire.News, Imani Gandy argues that both sides in the dispute over whether Kavanaugh was expressing his own views or those of a litigant when he used the term “abortion-inducing drugs” at the hearing to describe contraceptives “are overlooking the important part: the fact that Kavanaugh’s opinion in Priests for Life … suggests a willingness to allow evangelicals, by claiming a sincerely held religious belief, to be exempted from laws intended to provide people with contraceptive access through their employers, even when following those laws would require said employers to do nothing more than sign a piece of paper.”

In an op-ed for The Washington Post, Paul Waldman writes that “a Supreme Court with Kavanaugh on it could create a free-for-all when it comes to the influence of money in politics, a new era in which corruption is absolutely rampant — and completely legal.” At The Daily Signal, Thomas Jipping deplores “the misdirection, the fake indignation, the sudden interest in a once-irrelevant confirmation process, [and] the most creative obstruction tactics” of Senate Democrats who “already had their minds made up” to oppose the nomination.

Sept. 13

msnbc logo CustomMSNBC, The Last Word, Lawrence O'Donnell, Sept. 13, 2018. MSNBC host Lawrence O'Donnell, a former high-ranking Senate staffer for Democrats, told his audience clarence thomas eeoc wThursday night that he learned of the letter the previously Friday. He said the claim by a woman who was a minor, as was Kavanaugh, regarding a matter "sexual in nature" could be considered a "sexual assault" depending on circumstances, according to his information.

O'Donnell said that his initial reaction was that the matter would not be made public because the complainant declined to press the matter or step forward. But the process has a way of changing with allegations that he described as apparently serious.

O'Donnell said that the situation appears to have an "eerie" resemblance to the charges made by whistleblower Anita Hill against Clarence Thomas. Hill similarly made allegations of sexual harassment privately, but found herself pulled into public testimony before a committee that treated her shabbily, he said.

O'Donnell said the charge against Kavanaugh could be regarded as "assault" and thus more serious than the harassment claim by Hill against her onetime boss Thomas, shown in a file photo. Republicans, bolstered by a majo advertising campaign by the group Citizens United, pressured a then-Democratic majority in the Senate push the Thomas confirmation process quickly without calling all relevant witnesses before his confirmation by a narrow margin.

Palmer Report, Opinion: Democrats move forward with plan to force GOP Senator Lisa Murkowski to vote against Brett Kavanaugh, Bill Palmer, Sept. 13, 2018. Over the past week we’ve seen a lot of attention paid to the efforts to push Republican Senator Susan Collins to vote against Donald Trump’s Supreme Court nominee Brett Kavanaugh. That plan is straightforward: raise so much money now for Collins’ eventual Democratic opponent in 2020, she’ll realize her career is over if she votes “yes.” Far less attention has been paid to the efforts to push GOP Senator Lisa Murkowski to reject Kavanaugh, even though it’s an aggressive plan being led by Senate Democrats.

Collins comes from the moderate state of Maine, so it’s realistic that she could lose to a Democrat in 2020 if she votes for a far-right extremist like Brett Kavanaugh.

But Murkowski comes from Alaska, which is as red as you can get. Murkowski is a rare pro-choice Republican, a reminder that Alaska’s status as a red state arguably has less to do with social conservatism and more to do with its anti-federal government views. In any case, it would be far harder for a Democrat to defeat Murkowski. However, there is another way to pressure her.

Lisa Murkowski lost the Republican primary race in 2010, and only managed to keep her Senate seat thanks to a write-in campaign which was spearheaded by the Alaska Federation of Natives. Last week we saw Democratic Senator Mazie Hirono of Hawaii focus heavily on Brett Kavanaugh’s stances against the rights of Natives. Sure enough, according to a major Alaska newspaper, the Federation announced today that it opposes the Kavanaugh nomination. This is a big deal.

Although Senator Murkowski isn’t up for reelection until 2022, it’s becoming clear that her political career will end in 2022 if she votes in favor of Brett Kavanaugh. If Senator Hirono made it impossible for Murkowski to vote “yes” by rallying the Natives against Kavanaugh, Senator Dianne Feinstein may have just given Murkowski an easy excuse to vote “no” by referring Kavanaugh to the FBI for criminal investigation for alleged sexual misconduct.

Palmer Report, Opinion: FBI goes all-in on Brett Kavanaugh sexual assault investigation, Bill Palmer, Sept. 13, 2018. Hours after Senator Dianne Feinstein confirmed that she referred Supreme Court nominee Brett Kavanaugh to the FBI for criminal investigation, various news outlets have reported that it centers around a sexual assault allegation. This evening we’re learning that the FBI is taking the matter very seriously.

This evening Rachel Maddow revealed during her MSNBC show that the FBI has now added this matter to the criminal background check that it already performed on Brett Kavanaugh as part of his confirmation process. This means the FBI views this criminal referral as a credible matter, and not as some kind of left-field hoax. This isn’t particularly surprising; as Palmer Report explained earlier today, Feinstein wouldn’t have wasted the FBI’s time – and set herself up for potential backlash – if she didn’t feel like this was a serious accusation. So now what?

As pointed out on-air by Maddow, the FBI’s decision to update Kavanaugh’s criminal background check means that Donald Trump’s White House is now aware of the accusation in question. Senator Feinstein stated earlier that she wasn’t revealing the identity of the accuser, at her request. While it’s not clear if the Trump regime is about to learn the name of the accuser, they are about to learn the details of the accusations she’s making against Kavanaugh. That means Trump’s people may decide to begin dishonestly spinning the accusations as a way of muddying the waters.

We’ll see if this prompts the accuser to preemptively come forward, and how it changes the strategy that Senate Democrats are moving forward with. Before this news broke, the Democrats were already zeroing in on Kavanaugh’s time as a clerk for former judge Alex Kozinski, who resigned last year after being accused of sexual misconduct by several women. It’s still not clear what the connection might be, but it is fairly clear that the Democrats know some things that the rest of us don’t yet know.

Roll Call, Kavanaugh Set to Advance Amid Democratic Objections, Todd Ruger, Sept. 13, 2018. Kavanaugh Set to Advance Amid Democratic Objections; Supreme Court nominee mostly evasive in follow-up answers to Judiciary panel.

Republicans on the Senate Judiciary Committee voted Thursday to hold a committee vote on the Supreme Court nomination of Brett Kavanaugh at a specific time, 1:45 p.m., on Sept. 20. The vote was 11-10 along party lines over the objections of committee Democrats who said it would prematurely cut off debate.

Democrats on the Senate Judiciary Committee still had a lot of questions for Kavanaugh after last week’s confirmation hearing — they asked more than 1,200 written follow-up queries. But the nominee didn’t provide many revealing answers late Wednesday when he turned in 263 pages of responses in which he tried to provide more thoughts on one of the more dramatic moments of his confirmation hearing, brush aside questions about his finances, and clean up answers about abortion, his independence from political pressure and other topics.

But Kavanaugh appeared most keen to avoid any missteps that might jeopardize his solid support among Republicans. He did little to assuage concerns from Democrats about what they contend are inaccurate or false statements and remained elusive on many of the most contentious questions.

dianne feinsteinThe Intercept, Feinstein acknowledges mystery letter exists, Ryan Grim, Sept. 13, 2018. Yesterday I reported that Democrats on the Senate Judiciary Committee had requested to privately review a document related to Brett Kavanaugh that was in the possession of Dianne Feinstein, right, the top-ranking Democrat on the panel. She refused.

Last night, she briefed Democrats on its contents and today she put out a statement acknowledging that the document exists and that she has turned it over to the FBI. The New York Times is reporting that the letter alleges sexual misconduct while Kavanaugh was in high school, which is also what I was told by sources familiar with it.

ny times logoNew York Times, Opinion: A Supreme Court Transformed, Linda Greenhouse, Sept. 13, 2018. What will the court look like when neither side of the ideological divide has to walk on eggs to win the favor of the justice in the middle?

Mother Jones, The Many Mysteries of Brett Kavanaugh’s Finances, Who made the down payment on his house? How did he come up with $92,000 in country club fees? Stephanie Mencimer, Sept. 13, 2018. Before President Donald Trump nominated Brett Kavanaugh to the Supreme Court, he had a lot of debt. In May 2017, he reported owing between $60,004 and $200,000 on three credit cards and a loan against his retirement account.

By the time Trump nominated him to the high court in July 2018, those debts had vanished.

Overall, his reported income and assets didn’t seem sufficient to pay off all that debt while maintaining his upper-class lifestyle: an expensive house in an exclusive suburban neighborhood, two kids in a $10,500-a-year private school, and a membership in a posh country club reported to charge $92,000 in initiation fees. His financial disclosure forms have raised more questions than they’ve answered, leading to speculation about whether he’s had a private benefactor and what sorts of conflicts that relationship might entail.

No other recent Supreme Court nominee has come before the Senate with so many unanswered questions regarding finances. That’s partly because many of Kavanaugh’s predecessors were a lot richer than he is. Chief Justice John Roberts, for instance, had been making $1 million a year in private practice before joining the DC Circuit as a judge. The poorer nominees had debts, but explainable ones, such as the $15,000 Sonia Sotomayor owed to her dentist. Neil Gorsuch came the closest to financial scandal when he disclosed that he owned a mountain fishing lodge in Colorado with two men who are top deputies to the billionaire Philip F. Anschutz, who had championed Gorsuch’s nomination.

Kavanaugh’s finances are far more mysterious. During his confirmation hearing last week, he escaped a public discussion of his spending habits because no senator asked about it. But on Tuesday, Sen. Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee, sent Kavanaugh 14 pages of post-hearing follow-up questions, many of which involved his finances.

On Thursday, Kavanaugh supplied answers, but he dodged some of the questions and left much of his financial situation unexplained.

Sept. 12

washington post logoWashington Post, Kavanaugh offers details on purchases of Nationals tickets that led to thousands in debt, Seung Min Kim​, Sept. 12, 2018. The Supreme Court nominee’s explanation is part of written responses to questions posed by the Senate Judiciary Committee. Brett M. Kavanaugh also fielded questions about same-sex marriage and the Mueller investigation.

washington post logoWashington Post, Opinion: Two problems Brett Kavanaugh still must address, Jennifer Rubin, Sept. 12, 2018. Sen. Sheldon Whitehouse (D-R.I.) on Tuesday sent 14 pages of questions to Supreme Court nominee Brett M. Kavanaugh. While Whitehouse covers a lot of ground — from abortion, to environmental regulations, to work Kavanaugh performed in the George W. Bush administration — two things stand out.

First, he asks a ton of questions about the judge’s finances, including “Are there any debts, creditors, or related items that you did not disclose on your FBI disclosures?” He asks a slew of questions about the debt Kavanaugh incurred allegedly paying for baseball tickets for a friend who reimbursed him, as well as how he could afford membership at the Chevy Chase Club, which reportedly has a $92,000 initiation free and annual dues of more than $9,000.

brett kavanaughWhitehouse also inquired whether Kavanaugh “participated in any form of gambling or game of chance or skill with monetary stakes, including but not limited to poker, dice, golf, sports betting, blackjack, and craps.” He even goes so far as to inquire whether Kavanaugh, right, “ever sought treatment for a gambling addiction.

The second and, perhaps, more fundamental area of inquiry has to do with Kavanaugh’s views on executive power. In his testimony to the Senate Judiciary Committee, Kavanaugh gave not an ounce of reassurance to any senator concerned about executive power. It’s a measure of the degree to which the White House assumes all Republican votes are locked up that Kavanaugh brushed off questions not only from Democrats, but from independent-minded Sen. Jeff Flake (R-Ariz.).

HuffPost, Pressure Mounts On Susan Collins, Lisa Murkowski To Block Brett Kavanaugh, Laura Bassett, Sept. 12, 2018. The Maine and Alaska Republicans are feeling the heat in their home states ahead of Kavanaugh’s confirmation vote.

susan collins oSen. Susan Collins (R-Maine), right, has received 3,000 coat hangers in the mail. Women dressed as handmaids in red robes and bonnets have shown up at her home in Maine to protest. Activists have raised over $1 million for her 2020 challenger should she vote to confirm Brett Kavanaugh.

And the pressure continues to mount on Collins and Lisa Murkowski (R-Alaska), the Senate’s two potential swing votes, in the final days before a decision on President Donald Trump’s Supreme Court pick ― a conservative judge who could potentially gut abortion rights in the United States.

Planned Parenthood launched a six-figure cable and digital ad campaign in Maine on Wednesday that features a focus group of independent female voters who strongly want Collins to oppose Kavanaugh. NARAL Pro-Choice America put an additional $500,000 into its $260,000 ad campaign in Maine this week, which will run on TV and online in Maine until the vote.

Collins and Murkowski both claim to support abortion rights, and have bucked their party before to protect federal funding grants to Planned Parenthood. Both senators claim to be undecided on Kavanaugh. Collins has said she’s impervious to outside political pressure.

Palmer Report, Opinion: The Resistance has finally figured out how to push Susan Collins around, Bill Palmer, Sept. 12, 2018. For the Resistance, one of the most frustrating aspects of trying to shut down Donald Trump’s agenda has been having to rely on unreliable people like Republican Senator Susan Collins of Maine, who has voted with and against Trump in various key moments.

Palmer Report, Opinion: Senate Democrats publish documents that catch Brett Kavanaugh committing even more felony perjury, Bill Palmer, Sept. 12, 2018. The Senate confirmation hearings for Donald Trump’s Supreme Court nominee Brett Kavanaugh have already been controversial and dramatic. Yesterday we saw Democrats seek to expose Kavanaugh’s apparent gambling problem. Now the Democrats are zeroing in further on Kavanaugh’s status as a perjurer.

dick durbin speaking screenshotInfluential Senator Dick Durbin, shown in a file photo, tweeted this: “In 2006, I asked Judge Kavanaugh about his role in the 4th Circuit nomination of Jim Haynes – a key figure in crafting the Bush White House detention & interrogation policies. Under oath, he said, ‘I’ve—I know Jim Haynes, but it was not one of the nominations that I handled.’ However, these emails from 2002 and 2003 show that then-Associate White House Counsel Brett Kavanaugh played a substantial role in the decision to nominate Haynes, including examining whether Haynes ‘would be an across-the-board judicial conservative.'” Durbin then posted the emails in question.

Durbin went on to add: “This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story. It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding his record.” The key phrase here is “under oath.” Lying under oath is perjury, a felony, and you generally go to prison for it. Senate Democrats are exposing Kavanaugh as not merely a serial liar, but a criminal liar.

As Palmer Report has previously spelled out, the Democrats are trying to do two things here. The first is to expose Brett Kavanaugh as such as toxic pile of crap, certain vulnerable Republican Senators might conclude that they can’t vote for him, for fear it’ll cost them reelection. The second is to firmly establish that Kavanaugh has committed multiple felonies, which would set the stage for Kavanaugh to be impeached even if he is confirmed.

MS. Magazine, Why Lisa Graves is Calling for Brett Kavanaugh’s Impeachment, Carmen Rios, Sept. 12, 2018. Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, has been credibly accused of lying under oath to the Senate Judiciary Committee during his confirmation hearings and during previous hearings regarding his prior appointments.

Many of these claims center on Kavanaugh’s having received stolen memos from GOP Senate aide Manuel Miranda that included confidential memos, letters, talking points and research documents. In the years that followed, Miranda was ultimately forced to resign for stealing the documents, and the U.S. Seargant-at-Arms lauched a bipartisan investigation into the incident.

Kavanaugh denied ever receiving stolen materials from Miranda before the Senate in 2004 and again in 2006, but newly released documents to the chamber members show otherwise. The full extent of what Kavanaugh did or did not receive still remains a question, because many of his documents are being withheld from the committee—even now.

Lisa Graves, however, is quite familiar with the documents we now know Kavanaugh received — because she wrote some of them. And now, the former chief counsel for nominations for the ranking member of the Senate Judiciary Committee and deputy assistant attorney general in the Department of Justice is speaking out about Kavanaugh’s deception.

In an explosive op-ed published by Slate [I Wrote Some of the Stolen Memos That Brett Kavanaugh Lied to the Senate About, Sept. 7, 2018], Graves doesn’t mince words in calling not just for Kavanaugh to be rejected by the committee for his current nomination, but for him to be impeached from his current seat on the D.C. Circuit Court of Appeals bench.

Sept. 11

michelle goldberg thumbny times logoNew York Times, Opinion: The Handmaid’s Court, Michelle Goldberg, right, Sept. 10, 2018. Jane Doe may have been the first pregnant girl Brett Kavanaugh ruled against. But she won’t be the last.

Shortly after his inauguration, Donald Trump, uniquely attentive to his debt to the religious right, appointed the anti-abortion activist E. Scott Lloyd to head the Office of Refugee Resettlement, despite Lloyd’s lack of relevant experience. The position gave Lloyd authority over unaccompanied minors caught crossing into the United States, authority Lloyd exploited to try to stop pregnant migrants from getting abortions.

Last year, thanks to Lloyd’s interference, a 17-year-old from Central America had to wage a legal battle to end her pregnancy. Known in court filings as Jane Doe, the girl learned she was pregnant while in custody in Texas, and was adamant that she wanted an abortion.

Garza v. Hargan was the only major abortion-rights case Kavanaugh ever ruled on. His handling of it offers a clue about what’s in store for American women if he’s confirmed to the Supreme Court. No one knows whether Kavanaugh would vote to overturn Roe v. Wade outright or simply gut it. But even on a lower court, Kavanaugh put arbitrary obstacles in the way of someone desperate to end her pregnancy. Thanks to Trump, he may soon be in a position to do the same to millions of others.

SCOTUSblog, Tuesday round-up, Edith Roberts, Sept. 11, 2018 (See SCOTUSblog for hotlinks). Commentators continue to weigh in on the nomination of Judge Brett Kavanaugh to the Supreme Court in the wake of Kavanaugh’s Senate confirmation hearing last week. In an op-ed for Central Maine, Kavanaugh’s former White House colleague Sarah Day praises him as “a thoughtful leader [and] a champion of others.” For The Yale Daily News, Adelaide Feibel writes that “a few select Yalies had the chance [last week] to voice their opinions of Kavanaugh on a grand stage, before the Senate and the nation.”

Lisa Keen argues at Keen News Service that Kavanaugh’s testimony “did nothing to quell concerns in the LGBT community that Kavanaugh is an ultra-conservative, maybe even anti-LGBT, jurist who will almost certainly give the Supreme Court’s existing four conservative justices the fifth vote they need to vote against the equal rights interests of LGBT people.”

Michael Tomasky writes in an op-ed for The New York Times that lobbying red-state Democratic senators up for re-election “to vote no … [is] a waste of … time and money.”

In an op-ed for The Washington Post, E.J. Dionne contends that “[c]onservatives are willing to bend and break the rules, violate decorum and tradition, hide information and push Judge Kavanaugh through at breakneck speed” because “[t]hey want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.”

Sept. 10

brett kavanaugh zina bash c span sept 2018

Brett Judge Brett Kavanaugh faced the Senate Judiciary Committee last week, with former clerk and adviser Zina Bash at right behind him. Photo credit: C-SPAN / YouTube

whowhatwhy logoWhoWhatWhy, The Kavanaugh Hearing: Beyond the Soundbites, Celia Wexler, Sept. 10, 2018. WhoWhatWhy’s take on these incredible and historic four days. Unlike other news outlets, we offer a comprehensive story. We did not try to do this in incremental pieces, or by referring you to videos. It captures, as best we can, some of the major issues on which Kavanaugh’s vote will make a difference. And it helps you understand Kavanaugh the man. What drives this ultra-conservative judge? How does he make his decisions? What he demonstrated during the hearings is a coldness that does not bode well for the republic.

This is a man who can advocate for female law clerks, but cannot — or will not — understand the pain of a teenaged undocumented immigrant in her fourth month of pregnancy; who says he tutors students from low-income neighborhoods, but does not understand the destructive role that guns play in their world; who can espouse Catholic social-justice teaching, but sees no disconnect in gutting regulations that protect the public’s health and safety.

brett kavanaugh family white house wikimedia SmallIn the four days senators considered Brett Kavanaugh’s qualifications to be the next Supreme Court justice, Democrats went through the five stages of grief: denial, anger, bargaining, depression, and acceptance or, rather, resignation.

Kavanaugh (shown with his family and President Trump in a White House photo) would replace Justice Anthony Kennedy, the court’s swing vote, a conservative who sometimes sided with his more liberal colleagues on the bench. Kavanaugh would join the court at a time when the third branch of government — the judiciary — never seemed more important. “Fears of authoritarian rule are rampant in this country,” said Sen. Richard Durbin (D-IL) because of concerns about “a president willing to walk away from rule of law.”

Yet the Democrats had little power to change history; they are in the minority. If all 51 Republicans hang together, due to a rule change that no longer requires 60 votes for confirmation, they won’t need any Democratic votes to approve President Donald Trump’s nominee to the Supreme Court. Nothing happened last week that will likely change this outcome.

washington post logoWashington Post, Opinion: The Kavanaugh hustle, E.J. Dionne Jr., Sept. 10, 2018 (print edition). While Trump is destroying the honor and reputation of the presidency, Senate Republicans are doing all they can to destroy the legitimacy of the Supreme Court.

Conservatives are willing to bend and break the rules, violate decorum and tradition, hide information and push Judge Kavanaugh through at breakneck speed. They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.

SCOTUSBlog, Monday round-up, Edith Roberts, Sept. 10, 2018 (visit SCOTUSblog, edited by Edith Roberts, for hotlinks to articles cited below). On Friday, the Senate Judiciary Committee wrapped up its four-day hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court with a day of testimony from witnesses, including former law clerks to Kavanaugh, two former solicitors general, a survivor of the Parkland school shooting, and John Dean, President Richard Nixon’s White House counsel during Watergate.

We live-blogged the session, and Jon Levitan rounded up early coverage and commentary for this blog. Amy Howe recaps the highlights of the day’s proceedings in a podcast at Howe on the Court; a Daily Journal podcast also has a rundown.

At NPR, Nina Totenberg reports that throughout the hearing, “President Trump’s pick for the high court successfully parried questions from the Senate Judiciary Committee, and Democratic complaints that they had seen just 10 percent of his government record didn’t seem to raise much public ire.” For The Washington Post, Robert Barnes and Seung Min Kim report that “by the close of the four-day hearings, some Democrats on the Senate Judiciary Committee seemed resigned to Kavanaugh’s confirmation.”

For The New York Times, Adam Liptak observes that “Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.”

In an op-ed for The New York Times, Katherine Stewart argues that “[i]f the Senate confirms Brett Kavanaugh, it will be declaring that the United States is a nation in which one brand of religion enjoys a place of privilege; that we are a nation of laws — except in cases where the law offends those who subscribe to our preferred religion; and that we recognize the dignity of all people unless they belong to specific groups our national religion views with disapproval.”

At Jost on Justice, Kenneth Jost maintains that “[p]olitical differences aside, a common-sense reading of Kavanaugh’s testimony shows that he is ready if confirmed to vote to overrule the abortion-rights decision Roe v. Wade and that he is an uncertain vote at most to uphold any investigative procedures directed at the president who nominated him for the Supreme Court.” At First Mondays (podcast), Ian Samuel and Leah Litman “discuss their favorite and least favorite moments of the … hearings.”

Sept. 9

huff post logoHuffington Post, Lisa Murkowski’s Biggest Reason To Oppose Brett Kavanaugh May Not Be Abortion Rights, Jennifer Bendery, Sept. 9, 2018. Alaska Natives are urging the senator to vote no. She owes her re-election to them.

For all the speculation about Sen. Lisa Murkowski (R-Alaska), below right, and whether she’ll vote for Supreme Court nominee Brett Kavanaugh, there is an issue beyond abortion rights perhaps weighing more heavily on her as she makes her decision: protections for Alaska Natives.

lisa murkowski oAdvocates for Alaska Natives, who were crucial to Murkowski’s re-election in 2010, tell HuffPost they’ve been flooding her office all week and urging her to oppose Kavanaugh.

They’re raising concerns about his record on climate change, which is already causing real damage in Alaska. As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh in 2017 held that the Environmental Protection Agency lacks the authority to regulate hydrofluorocarbons, chemicals linked to global warming.

They’re also unhappy with his record on voting rights. Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that disenfranchised more than 80,000 minority registered voters.

The most pressing matter, however, is a case the Supreme Court is reviewing on Nov. 5 that could devastate Alaska Natives’ subsistence fishing rights. The case, Sturgeon v. Frost, raises questions about who has the authority to regulate water in national parks in the state ― the federal government or the state of Alaska. The case arose after Alaska resident John Sturgeon, who was on an annual moose-hunting trip, was riding a hovercraft on a river running through a national park when Park Service officials threatened to give him a citation. Sturgeon is arguing that his ability to use his hovercraft in this scenario is about states’ rights and that federal authority should be eliminated.

Kavanaugh has previously ruled to limit federal power in cases before him. If he gets confirmed and votes with the other four right-leaning justices in favor of Sturgeon’s argument, it will destroy the way of life for tribal communities who rely on subsistence fishing in protected federal waters, some Alaska Native rights groups say.

Sept. 8

brett kavanaugh cspan hearing sept 4 2018 Custom

Supreme Court nominee Brett Kavanaugh, shown in a witness stand at far right, with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) at left center.

washington post logopat leahy hsWashington Post, Leahy says Kavanaugh was ‘not truthful’ about Democratic documents, Michael Kranish, Sept. 8, 2018 (print edition). The Vermont senator, right, said the Supreme Court nominee should have realized the material was “stolen.”

washington post logoWashington Post, Ex-Nixon counsel warns of a court overly deferential to the president, Seung Min Kim, Sept. 8, 2018 (print edition). John Dean, the former Nixon White House counsel who played a crucial role in the Watergate scandal, testified Friday that confirming Judge Brett M. Kavanaugh as a justice will lead to the “most presidential-powers friendly” Supreme Court in the modern age.

john dean white house photoThe sharp criticism was laid out in Dean’s remarks before the Senate Judiciary Committee on the last day of Kavanaugh’s confirmation hearings. More than two dozen witnesses testified in favor of and against President Trump’s Supreme Court pick.

Dean (shown in his pre-Watergate days as Nixon White House Counsel) argued in his testimony that conservatives have “slowly done a 180-degree turn” on executive power and that a Supreme Court that is overly deferential to the president is “deeply troubling,” with Republicans controlling both the House and Senate.

“Under Judge Kavanaugh’s recommendation, if a president shot someone in cold blood on Fifth Avenue, that president could not be prosecuted while in office,” Dean told senators, a reference to Trump’s oft-repeated campaign line that he could act that way and not lose support.

Sept. 7

SCOTUSblog, Evening round-up: Final day of Judge Kavanaugh’s confirmation hearing, Jon Levitan, Sept. 7, 2018. The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court.

Today consisted of witness testimony; there were four panels and 28 total witnesses.

Coverage of the day’s events comes from Jessica Gresko of the Associated Press, who reports that “with [Kavanaugh’s] questioning over, he seemed on his way to becoming the court’s 114th justice.” For The Washington Post, Seung Min Kim focuses on the testimony of John Dean, former White House counsel for the Nixon Administration, “who played a crucial role in the Watergate scandal” and testified against Kavanugh’s confirmation. Further coverage comes from Amanda Becker of Reuters, Byron Tau of The Wall Street Journal; Erik Wasson of Bloomberg; and Emma O’Connor of Buzzfeed.

Commentary on the hearing comes from Damon Root for Reason; Ian Millhiser of ThinkProgress; John Nichols for The Nation; Hans A. von Spakovsky for Fox News; David B. Rivkin Jr. in The Hill; Monica Hesse for The Washington Post; Jeremy Stahl of Slate, with another piece from Slate from Dahlia Lithwick, who focuses on the protesters who interrupted the hearings.

Editorials come from The Wall Street Journal, which decried Senator Cory Booker’s release of documents on Thursday, and The Washington Post, which lamented “a depressing display of the breakdown of Senate norms.” Two podcasts discuss the hearing — Elizabeth Slattery looks at the highlights with Tom Jipping and Hans A. von Spakovsky on SCOTUS 101, while Garrett Epps was interviewed by Diane Rehm on On My Mind.

ny times logoNew York Times, At Hearing’s End, Democrats Accuse Kavanaugh of Misleading Them on Crucial Issues, Charlie Savage and Sheryl Gay Stolberg, Sept. 7, 2018. Four days of Supreme Court confirmation hearings ended the way they began: With fierce partisan divisions over Judge Brett M. Kavanaugh. Here are some of the issues that arose during the hearing, and how Judge Kavanaugh addressed them.

brett kavanaughSenate Democrats and their allies accused Judge Brett M. Kavanaugh on Friday of misleading the Judiciary Committee, saying he dissembled in testimony about crucial issues ranging from his views on abortion rights to his involvement in several Bush-era controversies.

But Republicans expressed confidence that none of the punches Democrats had thrown at the Supreme Court nominee had landed with sufficient force to jeopardize his confirmation.

Four days of Supreme Court confirmation hearings ended on Friday the way they began, with sharply partisan charges and tension remarkable for normally staid proceedings.

In two of the strongest statements on Friday, Senator Dianne Feinstein of California, the top Democrat on the committee, said on Twitter that Judge Kavanaugh gave answers that “were not true” when asked whether he had used “materials stolen” from committee Democrats when he was a White House lawyer under President George W. Bush. Senator Ron Wyden, Democrat of Oregon, also using Twitter, accused the judge of lying.

ny times logoNew York Times, Opinion: Confirmed -- Brett Kavanaugh Can’t Be Trusted, Editorial Board, Sept. 7, 2018. A perfect nominee for a president with no clear relation to the truth. In a more virtuous world, Judge Brett Kavanaugh would be deeply embarrassed by the manner in which he has arrived at the doorstep of a lifetime appointment to the Supreme Court.

He was nominated by a president who undermines daily the nation’s democratic order and mocks the constitutional values that Judge Kavanaugh purports to hold dear.

Now he’s being rammed through his confirmation process with an unprecedented degree of secrecy and partisan maneuvering by Republican senators who, despite their overflowing praise for his legal acumen and sterling credentials, appear terrified for the American people to find out much of anything about him beyond his penchant for coaching girls’ basketball.

Perhaps most concerning, Judge Kavanaugh seems to have trouble remembering certain important facts about his years of service to Republican administrations. More than once this week, he testified in a way that appeared to directly contradict evidence in the record.

ny times logoNew York Times, The Future of Abortion Under a New Supreme Court? Look to Arkansas, Sabrina Tavernise, Sept. 7, 2018. When a patient arrived this spring at the only abortion clinic in western Arkansas, the doctor had startling news: A new state law had gone into effect, and clinics could no longer perform abortions via medication in the state.

“Wait — all of Arkansas?” the patient asked her doctor, Stephanie Ho.

“Yes,” Dr. Ho remembered replying.

Less than a month later, a judge suspended the law, which is now the focus of a legal fight as Arkansas tries to reinstate it. In the meantime, Dr. Ho is working at one of the three remaining abortion clinics in the state, aware that, at any moment, she might have to stop performing abortions again.

The fight in Arkansas could help define the looming legal battle over abortion, 45 years after the Supreme Court made it a constitutional right. There are 13 abortion cases currently before federal appeals courts, including the Arkansas case, and legal experts say any of them could be the first to reach the Supreme Court after Justice Anthony Kennedy’s retirement. Others include a parental consent law in Indiana, a ban on a common second-trimester abortion procedure in Alabama, and a requirement in Kentucky that ultrasounds be displayed and described.

Slate, Opinion: I Wrote Some of the Stolen Memos That Brett Kavanaugh Lied to the Senate About; He should be impeached, not elevated, Lisa Graves, Sept. 7, 2018. Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court. After the revelations of his confirmation hearings, the better question is whether he should be impeached from the federal judiciary.

I do not raise that question lightly, but I am certain it must be raised.

Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.

Receiving those memos and letters alone is not an impeachable offense.

No, Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it.

For example, in 2004, Sen. Orrin Hatch asked him directly if he received “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” Kavanaugh responded, unequivocally, “No.”

In 2006, Sen. Ted Kennedy asked him if he had any regrets about how he treated documents he had received from Miranda that he later learned were stolen. Kavanaugh rejected the premise of the question, restating that he never even saw one of those documents.

NBC News logoNBC News, Opinion: I knew Brett Kavanaugh during his years as a Republican operative. Don't let him sit on the Supreme Court, David Brock, Sept. 7, 2018. David Brock is the author of five political books, including "Killing the Messenger" (Hachette, 2015) and "Blinded by the Right: The Conscience of an Ex-Conservative" (Crown, March 2002). He founded Media Matters for America in 2004 and then American Bridge 21st Century in 2011.

I used to know Brett Kavanaugh pretty well. And, when I think of Brett now, in the midst of his hearings for a lifetime appointment to the U.S. Supreme Court, all I can think of is the old "Aesop's Fables" adage: "A man is known by the company he keeps."

And that's why I want to tell any senator who cares about our democracy: Vote no.

Twenty years ago, when I was a conservative movement stalwart, I got to know Brett Kavanaugh both professionally and personally. Brett actually makes a cameo appearance in my memoir of my time in the GOP, "Blinded By The Right." I describe him at a party full of zealous young conservatives gathered to watch President Bill Clinton's 1998 State of the Union address — just weeks after the story of his affair with a White House intern had broken. When the TV camera panned to Hillary Clinton, I saw Brett — at the time a key lieutenant of Ken Starr, the independent counsel investigating various Clinton scandals — mouth the word "bitch."

But there's a lot more to know about Kavanaugh than just his Pavlovian response to Hillary's image. Brett and I were part of a close circle of cold, cynical and ambitious hard-right operatives being groomed by GOP elders for much bigger roles in politics, government and media. And it’s those controversial associations that should give members of the Senate and the American public serious pause.

Call it Kavanaugh's cabal: There was his colleague on the Starr investigation, Alex Azar, now the Secretary of Health and Human Services. Mark Paoletta is now chief counsel to Vice President Mike Pence; House anti-Clinton gumshoe Barbara Comstock is now a Republican member of Congress. Future Fox News personalities Laura Ingraham and Tucker Carlson were there with Ann Coulter, now a best-selling author, and internet provocateur Matt Drudge.

At one time or another, each of them partied at my Georgetown townhouse amid much booze and a thick air of cigar smoke.

In a rough division of labor, Kavanaugh played the role of lawyer — one of the sharp young minds recruited by the Federalist Society to infiltrate the federal judiciary with true believers. Through that network, Kavanaugh was mentored by D.C. Appeals Court Judge Laurence Silberman, known among his colleagues for planting leaks in the press for partisan advantage.

When, as I came to know, Kavanaugh took on the role of designated leaker to the press of sensitive information from Starr's operation, we all laughed that Larry had taught him well. (Of course, that sort of political opportunism by a prosecutor is at best unethical, if not illegal.)

Another compatriot was George Conway (now Kellyanne's husband), who led a secretive group of right-wing lawyers — we called them "the elves" — who worked behind the scenes directing the litigation team of Paula Jones, who had sued Clinton for sexual harassment. I knew then that information was flowing quietly from the Jones team via Conway to Starr's office — and also that Conway's go-to man was none other than Brett Kavanaugh.

That critical flow of inside information allowed Starr, in effect, to set a perjury trap for Clinton, laying the foundation for a crazed national political crisis and an unjust impeachment over a consensual affair.

But the cabal's godfather was Ted Olson, the then-future solicitor general for George W. Bush and now a sainted figure of the GOP establishment (and of some liberals for his role in legalizing same-sex marriage). Olson had a largely hidden role as a consigliere to the "Arkansas Project" — a multi-million dollar dirt-digging operation on the Clintons, funded by the eccentric right-wing billionaire Richard Mellon Scaife and run through The American Spectator magazine, where I worked at the time.

Both Ted and Brett had what one could only be called an unhealthy obsession with the Clintons — especially Hillary. While Ted was pushing through the Arkansas Project conspiracy theories claiming that Clinton White House lawyer and Hillary friend Vincent Foster was murdered (he committed suicide), Brett was costing taxpayers millions by pedaling the same garbage at Starr's office.

A detailed analysis of Kavanaugh's own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to Foster’s family and friends, or even common decency.Brett Kavanaugh's Supreme Court nomination is the result of years of unopposed conservative organizing. Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he's changed his stripes.

HuffPost, Brett Kavanaugh Refers To Birth Control As ‘Abortion-Inducing Drugs’ At Confirmation Hearing, Jenavieve Hatch, Sept. 7, 2018. On the third day of Supreme Court nominee Brett Kavanaugh’s confirmation hearing in front of the Senate Judiciary Committee, he referred to contraception as “abortion-inducing drugs.”

ted cruz oJudge Kavanaugh was responding to a question from Sen. Ted Cruz (R-Texas), right, on Thursday about his 2015 dissent in the Priests for Life v. HHS case. Kavanaugh had sided with the religious organization, which didn’t want to provide employees with insurance coverage for contraceptives.

Priests for Life, a Catholic group that opposes abortion rights, filed a lawsuit against the Department of Health and Human Services in 2013 over the provision under the Affordable Care Act that required certain health care providers to cover birth control. The group argued that the provision was a violation of the Religious Freedom Restoration Act ― the same premise of the Hobby Lobby lawsuit in 2014.

A panel of the U.S. Court of Appeals for the D.C. Circuit ruled against Priests for Life in 2014. When the group tried and failed to get a full court hearing the next year, Kavanaugh dissented to lay out why he would have ruled for them.

OpEdNews, Opinion: Deep State: Kavanaugh Covered-up Murder of Vince Foster, Garland Favorito, Sept. 7, 2018. As Republicans and Democrats exchange barbs on how wonderful or terrible Brett Kavanaugh's decisions will be as a U.S. Supreme Court judge, neither group of senators will have the courage to discuss an elephant in the committee room concerning Judge Kavanaugh's background. In 1996, Kavanaugh conducted an investigation into the death of Vincent Foster and concluded his death was a suicide despite overwhelming evidence Foster was murdered.

  • Kavanaugh replaced him and completed the investigation that concluded Foster committed suicide despite obvious evidence of murder:
  • Foster did not own the gun or ammunition that was used to kill him;
  • Foster's fingerprints were not on the gun that was used to kill him;
  • No dirt or grass was on his shoes but he was found 200 yards into the park;
  • Foster's grey 1989 Honda was not in the parking lot at the time of his death;
  • Powder burns found on his body were consistent with homicide, not suicide.

The U.S. Court of Appeals eventually ordered Starr to include a supplement about the cover-up in the final 20 pages of his report despite his objections. The supplement was written by Attorney John Clarke, witness Patrick Knowlton and researcher Hugh Turley.

Sept. 6

Supreme Court Battle

washington post logocory booker senateWashington Post, Clash intensifies over Kavanaugh records as new documents released, Seung Min Kim, Ann E. Marimow and Mark Berman​, Sept. 6, 2018. Sen. Cory Booker (D-N.J.), shown in a file photo, said he was willing to violate chamber rules and release confidential documents about Supreme Court nominee Judge Brett M. Kavanaugh — and to risk the consequences. It came as the fight intensified over access to records from Kavanaugh’s time in the George W. Bush White House.

ny times logoNew York Times, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, Charlie Savage, Sept. 6, 2018. As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

ny times logopaul krugmanNew York Times, Opinion: Kavanaugh Will Kill the Constitution, Paul Krugman, right, Sept. 6, 2018. The legitimacy of the Supreme Court is on the line. At a fundamental level, the attempt to jam Brett Kavanaugh onto the Supreme Court closely resembles the way Republicans passed a tax cut last year.

Once again we see a rushed, nakedly partisan process, with G.O.P. leaders withholding much of the information that’s supposed to go into congressional deliberations. Once again the outcome is all too likely to rest on pure tribalism: Unless some Republicans develop a very late case of conscience, they will vote along party lines with the full knowledge that they’re abdicating their constitutional duty to provide advice and consent.

True, Kavanaugh is at least getting a hearing, which the tax bill never did. But he’s bobbing and weaving his way through, refusing to answer even straightforward questions, displaying an evasiveness utterly at odds with the probity we used to expect of Supreme Court justices.

No, the real difference from the tax bill story is that last year we were talking only about a couple of trillion dollars. This year we’re talking about the future of the Republic. For a Kavanaugh confirmation will set us up for multiple constitutional crises.

So let me make a last-minute appeal to Republican senators who care about America’s future, if there are any left: Don’t do this. A vote for Kavanaugh will be a vote to destroy the legitimacy of one of the last federal institutions standing.

washington post logoWashington Post, Kavanaugh advised against calling Roe v. Wade ‘settled law’ while a White House lawyer, Sept. 6, 2018. A 2003 email written by the future Supreme Court nominee was among those deemed “committee confidential.”

washington post logoWashington Post, Analysis: What Kavanaugh won’t say may be as revealing as what he will, James Hohmann, Sept. 6, 2018. Here are a dozen noteworthy questions about executive power, preexisting conditions and other issues that President Trump's nominee for the Supreme Court dodged.

ny times logoNew York Times, Opinion: No More Grandstanding. Ask Kavanaugh Better Questions, Peter H. Schuck, Sept. 6, 2018. Mr. Schuck is an emeritus professor of law at Yale. Justices rarely perform the way partisans and the news media expect them to. In 75 percent of cases, partisan affiliation is not fully predictive of justices’ votes. In the hardest ones, lower courts reached different results despite seeing the same evidence, and considering the same legal arguments.

This week, senators should spend less time grandstanding with questions that simply highlight Judge Kavanaugh’s well-known ideological positions, and a lot more time trying to assess how he would vote in these much trickier cases.

Sept. 5

Kavanaugh Court Hearings

brett kavanaugh screen grab 9 5 2018 at 3 56 pm

Supreme Court nominee Brett Kavanaugh, an federal court of appeals judge, at his U.S. Senate confirmation hearing on Sept. 5, 2018 (screengrab at 3:56 p.m.).

JFKFacts.org, Kavanaugh’s judicial activism on display, Sept. 5, 2018. On the second day of the Brett Kavanaugh confirmation hearings, the Supreme Court nominee’s legal record is under close scrutiny. While far from is most important ruling, his last signed opinion as an appellate court judge provides a window into his judicial philosophy.

In a split decision on July 9, Kavanaugh’s vote decided my Freedom of Information Act (FOIA) lawsuit for certain JFK assassination files. As fellow judge Karen Henderson pointed out in a stinging dissent, the majority decision ignored precedent and invented mandate.

Substantively, Kavanaugh’s decision undermined a key feature of FOIA law and strengthened the CIA and other agencies that want to keep embarrassing secrets out of the public record–even when they are more than 50 years old. That’s why I’m appealing the decision.

washington post logodana milbank CustomWashington Post, Opinion: Never have we seen such a spectacle, Dana Milbank, right, Sept. 5, 2018. Brett M. Kavanaugh’s Supreme Court confirmation hearing is scheduled to last all week. Judiciary Committee Chairman Charles E. Grassley lost control after just 13 words. There has never been a disruptive spectacle like this at a Supreme Court confirmation hearing. But then there has never been a Supreme Court nomination like this.

Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan. Working for Kenneth W. Starr in the 1990s, he was involved in the Vincent Foster and Monica Lewinsky inquiries, proposing an explicit line of questioning for President Bill Clinton with graphic queries about genitalia, masturbation, phone sex and oral sex. And as a young lawyer under George W. Bush, Kavanaugh was involved in Bush v. Gore, the probe of Clinton’s pardons and legal decisions about torture.

Hence the importance of the “documents.” Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly.

Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch.

washington post logoWashington Post, Kavanaugh won’t say whether presidents have to respond to subpoenas, Seung Min Kim, Ann E. Marimow and Elise Viebeck, Sept. 5, 2018. Supreme Court nominee Brett M. Kavanaugh emphasized that he had not taken a position on constitutional issues regarding presidential investigations. Earlier, Kavanaugh testified that the landmark 1973 Roe v. Wade ruling that legalized abortion was settled precedent. But he did not say whether the case was correctly decided.

washington post logoWashington Post, Hearing offers an ‘unprecedented’ display of the Senate’s institutional decline, James Hohmann, Sept. 5, 2018.  The hearing for President Trump's latest Supreme Court nominee is dramatically more intense than last year’s hearing for Neil M. Gorsuch because both sides expect Brett M. Kavanaugh will tip the balance of the court.

Esquire, Brett Kavanaugh Was Up a Tree. We Should See the Documents That Put Him There, Charles P. Pierce, Sept 5, 2018. The public has a right to know far more about the Supreme Court nominee's activities in the Bush White House.

pat leahy hsThere was a serious bit of eminence grise-on-eminence grise crime in the Senate Judiciary Committee between Chairman Chuck Grassley and Democratic Senator Pat Leahy, shown at right.

It came at an interesting moment, because Judge Brett Kavanaugh had been caught by Leahy with a line of questioning for which the nominee clearly had not been prepared. It involved an episode while Kavanaugh worked in the White House counsel's office under President George W. Bush. In 2004, it was revealed by Charlie Savage, then working at the Boston Globe, that Republican staff members on the Judiciary Committee had penetrated the computer files of the Democratic senators on that committee that were concerned with judicial nominees, and that, in addition to using the purloined files to their own advantage, those staffers shared them with the media.

Leahy got Kavanaugh floundering on what, if anything, he knew about this rather garish dirty trick. Pretty plainly, Leahy was relying on documents marked "Committee-Confidential," which is material available to committee members, who can read the documents, but not share them publicly. Leahy rather obviously knew enough to imply that Kavanaugh at least was aware of the espionage, and that he received at least some of the stolen documents.

washington post logoWashington Post, After nominee is heckled, Trump suggests protesting should be illegal, Felicia Sonmez, Sept. 5, 2018 (print edition). President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

washington post logoWashington Post, Trump’s Supreme Court nominee faces grilling by senators, Seung Min Kim, Ann E. Marimow and Elise Viebeck​, Sept. 5, 2018. Judge Brett M. Kavanaugh is expected to face aggressive questions from Democrats on executive power, abortion rights, gun regulations and health care as his confirmation hearing continues before the Senate Judiciary Committee.

washington post logobrett kavanaughWashington Post, Ten issues likely to come up on Day 2 of the Kavanaugh hearings, Ann E. Marimow and Michael Kranish​, Sept. 5, 2018. Questions could span the course of Brett M. Kavanaugh’s long career in Washington — from his tenure as a member of independent counsel Kenneth W. Starr’s team in the 1990s to the George W. Bush White House to the 12 years he has spent as a federal judge.

School Safety

john donohue headshot

cnn logoCNN, Opinion: Brett Kavanaugh won't keep Americans safe, John J. Donohue, Sept. 5, 2018. John Donohue, above, is an economist, lawyer and professor at Stanford Law School. As the country reels from an unprecedented number of mass shootings in the past year, public support for prudent legislative action is about to slam into a jarring reality. Nearly every important state and local gun law is imperiled by the prospect of the elevation of Judge Brett Kavanaugh to the US Supreme Court.

In a stunning triumph of what former conservative Republican Chief Justice Warren Burger once referred to as the NRA's "fraud on the American people," the US Supreme Court's 5-4 District of Columbia v. Heller decision in 2008 ignored text, history and tradition in disregarding the Second Amendment's reference to a "well-regulated militia." It held that the amendment should instead be read to grant a private right to have a handgun in the home.

antonin scaliaThe late Justice Antonin Scalia's majority opinion was deemed an incoherent "snow job" by Reagan-appointed federal appeals court Judge Richard Posner. Fortunately, the lower courts have largely recognized that the decision should not be read expansively to impose a straitjacket on legislative efforts to deal with the serious US problem of gun violence -- unique among developed countries.

For example, two Republican-appointed judges on the DC Court of Appeals ruled in 2011 that the Second Amendment was not an impediment to the District's ban on assault weapons and large capacity magazines, let alone its entirely sensible gun registration regime. But Kavanaugh disagreed, writing a dissent that embodied the worst features of the historical amnesia, misguided originalism and imprudent judicial decision making of Scalia's Heller decision.

The FBI recently reported that the 30 active shooter incidents in 2017 set a US record for both the highest number and the greatest number killed and wounded. A substantial majority of Americans support stricter gun laws, and nearly everyone wants universal background checks. Since the Parkland shooting left 17 students and teachers dead and many injured, a handful of states have taken much-needed strides to address gun violence, and stories abound about the new energy that students are bringing to the legislative forum on this issue.

But if Kavanaugh becomes the newest Supreme Court justice, it may all be for naught. Working largely below the public's radar, the NRA has been suing every jurisdiction from Hawaii and California to Maryland and New Jersey to overturn restrictions on large-capacity magazines and assault weapons, as well as safe storage laws and restrictions on carrying guns in public.

Internal Trump Opposition?

ny times logoNew York Times, From Opinion: I Am Part of the Resistance Inside the Trump Administration, Anonymous, Sept. 5, 2018. I work for the president, but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations, our anonymous contributor writes.

Times Editor's Note: The Times today is taking the rare step of publishing an anonymous Op-Ed essay. We have done so at the request of the author, a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. We invite you to submit a question about the essay or our vetting process here.

Sept. 4

washington post logoWashington Post, Kavanaugh hearing devolves into political brawl; GOP’s Grassley refuses to delay, John Wagner, Seung Min Kim and Ann E. Marimow, Sept. 4, 2018. At the outset, Democrats repeatedly interrupted the opening statement of Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) — as protesters in the room heckled the senators — and sought to adjourn. Related column: Washington Post, The Fix: Democrats’ surprise, coordinated attack to tank Kavanaugh’s nomination, Sept. 4, 2018.

washington post logoWashington Post, Trump shows fresh disdain for the rule of law as confirmation hearings begins, James Hohmann with Breanne Deppisch and Joanie Greve, Sept. 4, 2018. An 11th-hour document dump highlights how much still isn’t known about Trump’s pick.

Brett Kavanaugh, whose confirmation hearing to join the Supreme Court begins today, was one of George W. Bush’s attorneys during the 2000 recount. His lawyering in Florida, combined with his background as a Republican operative, landed him a plum job in the White House, which in turn helped him score an appointment to the D.C. Circuit — the second most powerful court in America.

The decision remains in dispute 18 years later. Senate Democrats are unlikely to focus on Bush v. Gore during this week’s confirmation hearing because they don’t want to look like sore losers, and there is evidence that Bush would have narrowly prevailed if there had been a complete statewide recount. But it's nonetheless a timeless reminder not just that every justice counts, but also that the judiciary’s legitimacy depends on leaders of the executive and legislative branches respecting even decisions they disagree with.

Times Editor's Note: The Times today is taking the rare step of publishing an anonymous Op-Ed essay. We have done so at the request of the author, a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. We invite you to submit a question about the essay or our vetting process here.

fred guttenberg jamie guttenberg parkland sept 4 2018 Andrew HarnikAP

Trump Court nominee Kavanaugh snubs murdered Parkland shooting victim's father Fred Guttenberg at Sept. 4 hearing (Associated Press photo by Andrew Harnik)

Common Dreams, Opinion: This Is Who Brett Kavanaugh Is, Abby Zimet, Sept. 5, 2018. Among his other egregious traits -- rabid abortion opponent, fan of unconstrained presidential chutzpah, foe of the environment and longtime supporter of gun rights and especially assault weapons, whose confirmation, coincidentally, the NRA is spending over a million bucks to ensure -- there's this:

At his Tuesday hearing, purported devoted family man and "just such a nice person" Brett Kavanaugh refused to shake the hand of Fred Guttenberg, father of Parkland shooting victim Jamie Guttenberg, who has spent his grievous days, and likely nights, since his daughter was gunned down working tirelessly to ensure that other people's kids won't be.

Guttenberg described the moment: "Put out my hand to introduce myself as Jaime Guttenberg's dad. He pulled his hand back, turned his back to me and walked away. I guess he did not want to deal with the reality of gun violence."

When word of the ugly snub spread, the White House tried to blame Capitol Police, who later interrogated Guttenberg (WTF?), for intervening; they also claimed Guttenberg was an “unidentified individual,” though he'd earlier been introduced to the gathering by Dianne Feinstein.

In the fiery words of Emma Gonzales, we call bullshit. Photos and video of the encounter, complete with the clear contempt on Kavanaugh's face, expose the brutal truth: He's just a(nother) scumbag without heart, soul or moral compass.

ny times logoNew York Times, Times Publishes Op-Ed From ‘Resistance’ Administration Official. Trump Calls It ‘Gutless,’ Peter Baker and Maggie Haberman, Sept. 5, 2018. President Trump denounced what he called a “gutless editorial” posted by The New York Times on Wednesday, an essay written by an unnamed administration official claiming that advisers to the president were deliberately trying to thwart his “reckless decisions” from the inside.

At an event at the White House, Mr. Trump angrily assailed The Times for publishing the Op-Ed column, the second time in two days that news reports highlighted the way that some members of his team quietly seek to undermine the president when they believe he may be acting dangerously.

The column, written by an unnamed senior administration official, claimed that some of those close to the president were working to thwart his “misguided impulses.” Editors in The Times opinion section took the rare step of publishing a column without naming the author because of the significance of the subject.

ny times logoNew York Times, Nike’s Kaepernick Ad Set to Air on N.F.L.’s Opening Telecast, Kevin Draper, Sept. 5, 2018. Any questions about whether Nike might quickly back away from its decision to embrace the polarizing quarterback Colin Kaepernick amid threats of a boycott and criticism from President Trump dissipated on Wednesday when the company released a two-minute advertisement narrated by him and announced plans to have it run during the N.F.L.’s first telecast of the regular season.

The ad, called “Dream Crazy,” features Mr. Kaepernick and other star athletes in the Nike stable, including Serena Williams and LeBron James. It implores viewers to dream big, using the inspiring stories of those stars and of everyday weekend warriors who overcame illness or disability to triumph athletically.

“Believe in something, even if it means sacrificing everything,” Mr. Kaepernick says over images of him watching a waving American flag projected against a building. Those words appeared in an ad that was released on Monday announcing Nike’s new partnership with Mr. Kaepernick and on a billboard of him that went up in San Francisco on Tuesday.

“Nike’s ‘Dream Crazy’ campaign will air this week during sporting events such as the U.S. Open, M.L.B. and college football in addition to ‘Thursday Night Football,’ ” Josh Benedek, a Nike spokesman, said.

Sept. 3

washington post logobrett kavanaugh confirmation hearing 2004 CustomWashington Post, Democrats’ view of Kavanaugh shaped by bitter 2004 hearing, Michael Kranish, Sept. 3, 2018 (print edition). When former President George W. Bush nominated Brett Kavanaugh (shown during testimony then) for a federal circuit judgeship, Kavanaugh’s work on partisan missions put him at odds with Democrats. But the strategy Democrats used then to block his nomination for three years will no longer be available to them as Kavanaugh’s Supreme Court hearings begin Tuesday.

wsj logoWall Street Journal, Key Question in Senate Hearings: Would Kavanaugh Overturn Supreme Court Precedents? Brent Kendall, Sept. 3, 2018. Senators expected to focus on Trump nominee’s position on landmark decisions involving abortion and other hot-button issues.

With Judge Brett Kavanaugh’s Supreme Court confirmation hearings set to begin Tuesday, partisans on both sides are focusing on one of the most consequential questions surrounding his nomination: Whether he would stand firm with precedents set by landmark rulings or be willing to overturn them.

Politico, Democrats’ last shot at stopping Trump’s Supreme Court pick, Adam Cancryn, Sept. 3, 2018. If they can’t beat Kavanaugh, they’ll use his conservative views to fuel their 'blue wave.'

The long-shot path to killing Brett Kavanaugh’s Supreme Court nomination runs through the heart of the American health care system — and right into the November midterm elections. Senate Democrats prepping for this week’s marathon confirmation hearings are zeroing in on the health care views of the man who could pull the nation’s high court to the right for a generation — and determine the fate of abortion rights, the social safety net and Obamacare itself, possibly within months.

ny times logoNew York Times, How Brett Kavanaugh Would Transform the Supreme Court, Adam Liptak, Sept. 3, 2018 (print edition). Most confirmation hearings concern nominees who would not change the court’s basic direction. That is not the case with the nomination of Judge Brett M. Kavanaugh, whose Senate confirmation hearings will begin on Tuesday.

william burck cnn

ny times logoNew York Times, Coveted Lawyer’s Juggling Act May Be Good for Trump, and Bad, Michael D. Shear and Michael S. Schmidt, Sept. 3, 2018 (print edition). William Burck, shown above in a screengrab, is deciding which documents about Judge Kavanaugh can be released. He also represents White House officials in the special counsel inquiry.

Sept. 2

washington post logobrett kavanaughWashington Post, Issues for Kavanaugh: The president who chose him and the court he would change, Robert Barnes, Sept. 2, 2018 (print edition). As Supreme Court confirmation hearings for Brett M. Kavanaugh, right, begin Tuesday, abortion, affirmative action, religion and gay rights are among the issues at stake. But the hearings also come as the powers of a special prosecutor to investigate the president are part of a national debate, with decisions on executive power possibly awaiting the high court.

washington post logoWashington Post, Trump to withhold 100,000 pages of Kavanaugh’s White House records, Seung Min Kim, Sept. 2,  2018 (print edition). The president claimed executive privilege in his decision to not release the records from Supreme Court nominee Brett M. Kavanaugh’s tenure in the George W. Bush White House. The move drew criticism from Democrats, who have pushed for more disclosure ahead of confirmation hearings.

washington post logoWashington Post, The key players in the Kavanaugh hearings — and what’s at stake for each of them, Amber Phillips, Sept. 2, 2018. The Senate hearings to confirm Supreme Court nominee Brett M. Kavanaugh take place in a uniquely hyperpartisan political moment.

August

Aug. 22

More Pressure On Kavanaugh

washington post logobill clinton wWashington Post, Senate Democrats want to know whether Kavanaugh crossed line as a source during Clinton probe, Tom Hamburger, Robert Barnes and Robert O'Harrow Jr., Aug. 22, 2018. The senators are exploring whether the Supreme Court nominee violated federal rules in his private communications with outsiders during Kenneth Starr’s wide-ranging investigation of Bill and Hillary Clinton.

During independent counsel Kenneth W. Starr’s tumultuous investigation of President Bill Clinton in the 1990s, there were loud objections and even lawsuits filed over Clinton’s complaints that information meant to be kept secret was being leaked to the press by Starr’s staff.

Among those guiding the journalists and authors was a young lawyer named Brett M. Kavanaugh, now a federal judge and President Trump’s nominee to the Supreme Court.

washington post logoWashington Post, Citing Cohen plea, Senate Democrats seek delay in Kavanaugh hearings, John Wagner and Mike DeBonis, Aug. 22, 2018. Senate Democrats on Wednesday called for delaying confirmation hearings for Supreme Court nominee Brett M. Kavanaugh in the wake of a guilty plea by Michael Cohen, President Trump’s former attorney, on campaign-finance counts that involve the president.

Democrats, who have been seeking leverage to slow down Kavanaugh’s consideration, argued that a new justice could be forced to decide questions directly relating to Trump, including whether he must comply with a subpoena from prosecutors and whether he can be indicted while in office.

susan collins oSCOTUSblog, Wednesday round-up, Edith Roberts, Aug. 22, 2018.  For The Washington Post, Elise Viebeck and Gabriel Pogrund report that “[a] Republican senator whose vote could ensure the confirmation of Supreme Court nominee Brett M. Kavanaugh” — Sen. Susan Collins of Maine – “offered an upbeat assessment of their meeting Tuesday, highlighting the judge’s statement that the Roe v. Wade decision legalizing abortion is ‘settled law.’”

Additional coverage comes from Scott Detrow at NPR , Natalie Andrews and Byron Tau for The Wall Street Journal, Sheryl Gay Stolberg for The New York Times, and the Associated Press. At The Hill, Tal Axelrod reports that “[a] Public Policy Polling survey released Tuesday shows a plurality of Maine voters want … Collins … to reject Judge Brett Kavanaugh’s nomination to the Supreme Court and many will be less likely to support her for reelection if she votes to confirm him.”

Megan Keller reports at The Hill that “Sen. Sheldon Whitehouse (D-R.I.) on Tuesday said that he thinks a ‘smelly special interest network’ of dark money was involved in Supreme Court nominee Brett Kavanaugh’s nomination process.”

In an op-ed for The Hill, Steven Calabresi refutes “criticism of Judge Brett Kavanaugh’s nomination to the Supreme Court [charging] that his references to constitutional originalism suggest he would reach a series of bad results in certain cases.”

At Slate, Mark Joseph Stern suggests that “[a]side from the looming election,” “there is one clear reason” why the Republicans are “so eager to push through Kavanaugh’s nomination before the documents [from the nominee’s days in the White House counsel’s office] are released”: “The Supreme Court has stacked its October docket with major cases that will require Kavanaugh’s vote for a conservative victory.”

Aug. 20

washington post logoWashington Post, Brett Kavanaugh memo detailed explicit questions for Clinton, Michael Kranish, Aug. 20, 2018. Brett Kavanaugh wrote in a strikingly explicit 1998 memo that he was “strongly opposed” to giving then-President Bill Clinton any “break” in the independent counsel’s questioning about his sexual relationship with intern Monica Lewinsky, according to a document released Monday. [Read the memo from Brett Kavanaugh]

In the memo, Kavanaugh, who worked as an associate counsel for independent counsel Ken Starr and is now President Trump’s nominee for the U.S. Supreme Court, laid out several proposed questions, including, “If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”

Excerpts of the memo have been previously reported, including by The Washington Post last month, quoting from a book about the Lewinsky investigation. However, the full memo had not been released until Monday, when it was released by the National Archives in response to a Freedom of Information Act request by The Post.

Aug. 17

ny times logoNew York Times, Why Cover Up Brett Kavanaugh’s Past? Editorial Board, Aug. 17, 2018. For the first time in modern history, Republicans are refusing to request a Supreme Court nominee’s relevant papers. Judge Brett Kavanaugh’s supporters have spent the last month lavishing him with acclaim. He’s a legal superstar, they say, one of the most qualified Supreme Court nominees in history. So why are Senate Republicans so afraid of letting Americans learn more about him?

After what they did to Judge Merrick Garland in 2016 — obliterating Senate tradition by outright ignoring President Barack Obama’s third Supreme Court nomination for partisan political gain — you might think it would be hard for Mitch McConnell, the Senate majority leader, and Chuck Grassley, chairman of the Judiciary Committee, to inflict any more damage on the court.

brett kavanaugh.judgeLSurprise! They’re now running the most secretive and incomplete confirmation process in modern history. They scrambled to set the start of Judge Kavanaugh’s confirmation hearing for Sept. 4, even as they have refused multiple requests by their Democratic colleagues to see more than one million documents covering his years as White House staff secretary to President George W. Bush. Judge Kavanaugh, right, has called that job, which he held from 2003 to 2006, “the most interesting and informative” of his career in terms of preparing for his work on the bench.

These documents could contain important information about his role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him. So what was his true role? The documents may or may not answer that question definitively, but we’ll never know without seeing them.

Aug. 17

brett kavanaughAlliance for Justice, Opinion: Republicans “Running a Scam” to Confirm Kavanaugh, Bill Yeomans, Aug. 17, 2018. AFJ Justice Fellow Bill Yeomans writes that Senate Republicans are short-circuiting the normal confirmation process for Supreme Court nominee Brett Kavanaugh, by moving ahead without obtaining all the relevant documents from his career -- and he minces no words.

Yeomans notes:

"The Republican Senate majority is running a scam to ram through confirmation of Brett Kavanaugh without the scrutiny that is essential to our constitutional health. Republicans are panicking…polling shows that a majority of the public already opposes Kavanaugh’s confirmation. Senate Republicans understand that the more the public learns about the nominee and his positions and the longer the Senate and public have to consider the nomination, the less popular he will become."

Adding his voice to the chorus of those demanding that Republicans stop taking irresponsible shortcuts, Yeomans concludes that the Senate "must take the time to gather and release all of the records."

Aug. 16

New York Magazine, Opinion: Poll: Kavanaugh Is the Most Unpopular Court Pick in Decades, Eric Levitz, Aug. 16, 2018. The conservative movement’s judicial agenda is extremely unpopular. This is, in part, because the movement recognizes that some of its goals are too politically toxic to advance through the more democratic branches of the federal government, and thus, seeks to implement them through litigation. Congress would have had a difficult time clearing the way for unlimited corporate spending on American elections, or gutting the Voting Rights Act of 1965, or legalizing most forms of political bribery, or hobbling public-sector unions — but the Roberts court had no such trouble.

brett kavanaughAnd yet, historically, the unpopularity of conservative jurisprudence has rarely put a dent in the in the public image of conservative judicial nominees.

Democratic voters have traditionally followed the lead of their party’s elites, and judged Republican presidents’ Supreme Court picks on the strength of their professional qualifications, rather than their ideological commitments. John Roberts and Samuel Alito are two of the most radically reactionary Supreme Court justices in our nation’s modern history, and yet both enjoyed overwhelming public support when their nominations were brought before the Senate. Even last year, in our hyperpolarized epoch, when Donald Trump announced his intention to put Neil Gorsuch into Merrick Garland’s rightful Supreme Court seat, 49 percent of Americans said that the Senate should confirm him, while just 36 percent said it should not.

All of which makes this new CNN poll remarkable: A plurality of American voters currently want the Senate to reject Brett Kavanaugh’s nomination to the Supreme Court. In the past three decades, no high court nominee has ever attracted plurality opposition in initial polling — and only Robert Bork suffered a lower level of opening support.

Aug. 11

washington post logoWashington Post, Analysis: Democrats all but acknowledge Kavanaugh is headed toward confirmation to Supreme Court, Sean Sullivan​, Aug. 11, 2018 (print edition). The Senate is poised to install Brett M. Kavanaugh on the high court and take the next step toward fulfilling President Trump’s pledge to remake the Supreme Court — and the wider federal judiciary, potentially for decades.

Aug. 8

todd henderson university of chicagoUniversity of Chicago Maroon, UChicago Law Prof Says Sotomayor Got on Court Because She’s Latina, Wipes Twitter, Maroon Staff, Aug. 8, 2018. Conservative sonia sotomayor in scotus robe1University of Chicago Law Professor M. Todd Henderson, right, said in a tweet Tuesday that Justice Sonia Sotomayor was appointed to the Supreme Court because “her Latinaness gave us insight into her soul.”

His tweet, which said she is a “second-class intellect,” immediately drew sharp criticism from members of the University community and beyond. Some questioned how Henderson was a professor at the Law School; one user wrote, “Your dumb ass couldn’t get onto the food court.”

After initially fighting back against his critics, Henderson issued a half-apology Tuesday evening, again via tweet. He said that having another woman and Hispanic on the Court was a good thing, but argued that there are dozens of appeals court judges “smarter” than Justice Sotomayor, shown at left. Still, he said, if he were a senator he would have confirmed her to the Court.

Aug. 6

SCOTUSblog, Monday round-up, Edith Roberts, Aug. 6, 2018. We round up the latest news on Judge Brett Kavanaugh (shown at right), including speculation on documents from his time in President George W. Bush’s administration and a debate over whether Democrats should support his confirmation when they disapprove on the merits.

brett kavanaugh confirmation hearing 2004 CustomAt BuzzFeed News, Chris Geidner and Jason Leopold report that “[i]n the midst of a growing fight over what documents senators will see from Supreme Court nominee Brett Kavanaugh’s five years in the George W. Bush White House, a narrow glance into three months of Kavanaugh’s communications with just one office at the Justice Department shows that he worked on key questions involving the president’s power to keep documents from Congress and the public, as well as important legislation in the aftermath of the Sept. 11 attacks.”

For the Washington Post, Seung Min Kim reports that “Senate Democrats will begin meeting with Supreme Court nominee Brett M. Kavanaugh to press him privately on releasing his papers, … after Democrats had boycotted these sit-downs for weeks amid a document dispute with Republicans.” At Jost on Justice, Kenneth Jost asserts that “the Republicans’ prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama’s last two Supreme Court nominations.”

For the New York Times, Michael Shear and Adam Liptak take a close look at Kavanaugh’s experience working on independent counsel Kenneth Starr’s investigation of President Bill Clinton, “an immersion course in the brutal ways of Washington combat.”

Aug. 3

washington post logobrett kavanaughWashington Post, Senate Democrats to end boycott, plan to meet with Kavanaugh later this month, Seung Min Kim, Aug. 3, 2018. Senate Democrats will begin meeting with Supreme Court nominee Brett M. Kavanaugh, right, to press him privately on releasing his papers, a senior Democratic aide said Friday, after Democrats had boycotted these sit-downs for weeks amid a document dispute with Republicans.

Senate Minority Leader Charles E. Schumer (D-N.Y.) and Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary Committee, had held off scheduling the traditional one-on-one sessions as they tussled with Republicans over releasing documents from Kavanaugh’s voluminous paper trail, primarily from his time in the George W. Bush White House.

But Schumer and Feinstein will start meeting with President Trump’s pick to succeed retired justice Anthony M. Kennedy after the Senate returns from its truncated recess Aug. 15, a senior Senate Democratic aide said. They will press Kavanaugh on releasing his papers from his tenure as Bush’s staff secretary — which Republicans argue are irrelevant in assessing his fitness to be a justice — and “question him about their contents.”

Republicans have agreed to release only papers from Kavanaugh’s time as associate White House counsel, which span two of the five years he served under Bush. Democrats made a separate request to the National Archives to release the staff secretary records, but the Archives rebuffed their request in a letter dated Thursday. The Archives said only the chairman of a committee can make such a documents request.

The National Archives has started reviewing Kavanaugh’s documents from his time as associate White House counsel but said it won’t finish going through all of them until late October. Still, Senate Republicans plan to go ahead with confirmation hearings in September, as a private legal team led by Bush’s presidential records representative conducts a separate review of Kavanaugh’s paperwork and provides them to the Senate.

Schumer raised concerns Friday that this separate process means neither the public nor senators outside of those on the Judiciary Committee would be able to see Kavanaugh’s records.

“This unprecedented effort on the part of Republicans to keep hidden Judge Kavanaugh’s records from the American public, and even the large majority of senators, is a new and astonishing level of secrecy,” Schumer said in a statement.

Aug. 2

U.S. Supreme Court: Kavanaugh

SCOTUSblog, Thursday round-up, Edith Roberts, Aug. 2, 2018. At CNN, Lauren Fox reports that “Iowa Republican Sen. Chuck Grassley, the chairman of the powerful Senate Judiciary Committee, said Wednesday that he hopes to have President Donald Trump’s Supreme Court nominee [Brett Kavanaugh] confirmed by the Senate by early October and that hearings are most likely to begin sometime in September.”

For The Washington Times, Alex Swoyer reports that “[a] Christian women’s organization announced Wednesday it’s launching a bus tour in eight states to rally support” for Trump’s nominee. Brett Samuels reports at The Hill that “Capitol Police charged 74 people on Wednesday in connection with a protest in the Senate office building against … Kavanaugh.” jeffrey toobin

At The New Yorker, Jeffrey Toobin, right, urges liberals wondering “whether it’s even worthwhile … to fight [Kavanaugh’s] nomination” “to remember that fighting Supreme Court nominees, even against formidable odds, can succeed — and produce a better Court than anyone might have expected.”

Aug. 1

washington post logoWashington Post, ‘Unprecedented partisan interference’: Senate escalates bitter fight over Kavanaugh’s record, Seung Min Kim​, Aug. 1, 2018 (print edition). Democrats want to review material from the Supreme Court nominee’s time as as an associate White House counsel during the administration of George W. Bush, as well as Brett Kavanaugh’s years as staff secretary. Republicans call it an irrelevant fishing expedition.

 

July

July 31

Consortium News, Opinion: In Shielding US from Legal Obligations, Kavanaugh Conflates International Law with Foreign Laws. Marjorie Cohn, July 31, 2018. Supreme Court nominee Brett Kavanaugh has nothing but contempt for international law. But he has shown uncritical deference to executive power, particularly in the so-called war on terror cases, argues Marjorie Cohn. For 12 years, while serving as a judge on the D.C. Circuit Court of Appeals, Kavanaugh had the opportunity to rule on several cases stemming from the “war on terror.” In nearly all of them, he demonstrated nothing but disdain for international law and an uncritical deference to executive power.

July 29

washington post logosusan collins oWashington Post, Analysis: Collins and Murkowski find pressure over Supreme Court lacks emotional pleas on health care, Paul Kane, July 29, 2018 (print ed.). Liberals are targeting the two moderate GOP senators who stopped the repeal of the Affordable Care Act last year, hoping they will break ranks and defeat high court nominee Brett M. Kavanaugh. U.S. Sen. Susan Collins, a Maine Republican, is shown at right.

July 27

djt brett kavanaugh family 7 9 18 Small

President Trump introduces Supreme Court nominee Brett Kavanaugh and his family on July 9 at the White House

washington post logoWashington Post, Opinion: Kavanaugh won’t protect Mueller. His writings prove it, Richard Blumenthal, July 27, 2018 (print ed.). richard blumenthal portraitRichard Blumenthal, right, a former Supreme Court law clerk and editor in chief of the Yale Law Journal, is a U.S. senator from Connecticut and a former presidentially appointed U.S. attorney and attorney general for that state.

Recent days have left many Americans with a burning question: Does Vladimir Putin have something on President Trump? The investigation led by special counsel Robert S. Mueller III offers the most realistic opportunity to answer that question. But the likelihood of that happening may have taken a hit when the president nominated to the Supreme Court someone whose writing suggests that he thinks presidents should be able to fire special counsels for any reason or no reason at all.

The president may also take comfort from Judge Brett M. Kavanaugh’s observation during a 1999 panel discussion that United States v. Nixon — the unanimous, landmark 1974 Supreme Court opinion forcing President Richard M. Nixon to turn over secretly recorded White House tapes — may not be good law. Even more unsettling than Kavanaugh’s skepticism on that score was his speculation that Nixon might deserve to “be overruled on the ground that the case was a nonjusticiable intrabranch dispute.”

Kavanaugh was thus lending credence to the Nixon White House’s argument that because the Justice Department is part of the executive branch, it has no authority to compel the president to release information relevant to a criminal case. Under this theory, presidents would not only be free to reject burdensome, unfair or otherwise problematic requests for information; they would also be free to reject all requests for information.

July 24

alex kozinski c span nov 2014 Custom

Show above is a C-SPAN screenshot from a 2014 lecture at the National Press Club by then federal appeals court judge Alex Kozinski

washington post logoWashington Post, Judge who quit over harassment allegations reemerges, dismaying those who accused him, July 24, 2018. Some former clerks to Alex Kozinski and other women said they feared the retired federal appeals court judge was being allowed to reenter the legal community without a complete reckoning.

Alex Kozinski had largely retreated from public life since allegations of sexual misconduct prompted him to retire as a federal appeals court judge last year. Even as his case sparked changes in how the judiciary handles harassment, the outspoken jurist remained silent — never addressing specific accusations that he showed clerks explicit images in his chambers or touched women inappropriately.

But earlier this month, Kozinski tiptoed back into public view, sitting for an hour-long interview with a public radio station in California and writing a tribute in a legal-industry publication to retired Supreme Court justice Anthony M. Kennedy. Then President Trump nominated Brett M. Kavanaugh, one of Kozinski’s former clerks and professional friends, to a seat on the high court.

Kozinski was suddenly back in the spotlight, and the legal and political worlds were left to wrestle with the aftershocks of his fall from grace.

July 23

ny times logoNew York Times, Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court, Editorial Board, July 23, 2018 (print ed.). President Trump’s choice for the latest Supreme Court vacancy will continue a trend toward widening America’s power and wealth gaps.

Corporate interests haven’t had it so good at the Supreme Court in a long time. Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, shown at right in a 2004 judicial confirmation hearing, President Trump’s choice to replace Justice Anthony Kennedy.

brett kavanaugh confirmation hearing 2004 CustomCorporations won the power to spend unlimited amounts of money on political campaigns in the 2010 Citizens United decision. The owners of businesses have earned the right to cite their personal religious beliefs to deprive workers of reproductive health care. At the same time, the justices have made it harder for employees and customers to sue big businesses by allowing corporations to require mandatory arbitration clauses in contracts people are forced to sign if they want jobs or want to buy goods and services. The court has also made it easier for polluters to get away with poisoning the air and water.

In many of these decisions the five conservative justices have shown no restraint in rejecting judicial precedent and in substituting their own judgment for that of lawmakers.

Just last month, in a blow to public-sector unions with contracts covering nearly seven million workers, their 5-to-4 ruling dismissed a unanimous 40-year-old decision that state governments and unions had long relied on. In the recent case, Janus v. American Federation of State, County and Municipal Employees, the court held that government workers covered by union contracts do not have to pay fees for collective bargaining expenses if they are not members.

The ruling does not directly involve businesses. But it will hurt all workers because benefits won by unions often establish benchmarks that help improve wages and working conditions even at companies without unions.

July 22

ny times logoNew York Times, How a Failed Judicial Nomination Could Affect Kavanaugh, Carl Hulse, July 22, 2018 (print ed.). Senators expect the collapse of Ryan W. Bounds’s nomination to have major implications for the Senate and the coming showdown over the nomination of Judge Brett M. Kavanaugh to the Supreme Court.

tim scott oMr. Bounds’s nomination was pulled after Senator Tim Scott, right, of South Carolina, the only black Republican senator, made clear he would not vote for him because of the writings, despite a hastily arranged face-to-face meeting with the nominee. Senator Marco Rubio, Republican of Florida, quickly sided with his close friend Mr. Scott, and other Republicans also signaled that they would vote against Mr. Bounds.

His nomination was scratched to avoid an embarrassing defeat for President Trump, a rare setback in the administration’s determined march to put conservatives on federal courts around the country. Mr. Bounds was to be named to the United States Court of Appeals for the Ninth Circuit, a court dominated by liberal jurists that has been a particular thorn in the side of Mr. Trump.

The outcome underscored just how narrow a margin that Senator Mitch McConnell, the Kentucky Republican and majority leader, has to work with when it comes to Judge Kavanaugh. Because of the continued absence of Senator John McCain, the Arizona Republican being treated for brain cancer, the defection of a single Republican can doom a nominee if Democrats remain united in opposition.

richard blumenthal portraitAnd Democrats pounced on the fact that Mr. Bounds was undone by long-ago writings, saying the episode legitimized their demand that all documents from Judge Kavanaugh’s past work in government should be disclosed, even though it might be a ponderous task to produce them and take weeks to review them.

“This nomination’s defeat is a sign of inadequate vetting and excessive haste,” said Senator Richard Blumenthal, left, a Connecticut Democrat who sits on the Judiciary Committee. “It should stand as a rebuke to my Republican colleagues who are seeking to severely constrict review of Judge Brett Kavanaugh’s nomination to the Supreme Court. Restricting documents chuck grassley officialand time is a great mistake for lifetime judicial appointments.”

Democrats want access to hundreds of thousands of documents and emails from Mr. Kavanaugh’s service in the administration of George W. Bush, and Republicans are resisting. Senator Charles E. Grassley, right, the Iowa Republican who is the chairman of the Judiciary Committee, says that he won’t allow a “government-funded fishing expedition,” and notes that many Democrats have already vowed to oppose the nomination without seeing any records.

July 21

ap logoAssociated Press via Chicago Tribune, SCOTUS nominee Kavanaugh questioned Watergate tapes decision, Mark Sherman, July 21, 2018. Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.

Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in U.S. v. Nixon, which marked limits on a president's ability to withhold information needed for a criminal prosecution, may have come out the wrong way.

A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.

Kavanaugh's belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the ongoing investigation into Russian interference in the 2016 election.

"But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision," Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.

DCDave Blog, Opinion: Christopher Ruddy on Brett Kavanaugh, David Martin, July 21, 2018. Christopher Ruddy is the Long Island, New York, native who is the CEO of the media organization Newsmax, regularly sought out for interviews by the mainstream press because he keeps the company of his neighbor in Palm Beach, Florida, President Donald Trump and is one of his closest informal advisers.

vincent foster oRuddy first rose to prominence, though, as the only American reporter raising doubts about the mysterious July 20, 1993, death of President Bill Clinton’s deputy White House Counsel, Vincent W. Foster, Jr., shown at right. His first critical article appeared in the New York Post on January 27, 1994. In 1997 he would publish a book entitled The Strange Death of Vincent Foster: An Investigation. (Amazon used to tout my review of that book as the leading one, based upon the number of viewers finding it “helpful,” which it still is, but they have now deeply buried it away.)

Writing critically on the Vince Foster case, Ruddy could hardly avoid talking about young Brett Kavanaugh, who took over as Independent Counsel Kenneth Starr’s lead investigator after the resignation in disgust of Miguel Rodriguez. In the long passage below, we pick up the story on page 240 of Ruddy’s book.

He is talking about the troublesome witness, Patrick Knowlton, who had been tracked down by the British reporter, Ambrose Evans-Pritchard. Knowlton had happened by Fort Marcy Park where Foster’s body was found on the afternoon of July 20, where Knowlton had stopped in to take an emergency leak. Hearing on television that night about the discovery of the body there, he had done his civic duty and called the Park Police to tell them what he had seen. They had demonstrated little interest, taking only a short statement from him....

When Knowlton appeared before the grand jury the following week, Brett Kavanaugh, one of Starr’s prosecutors who (according to his official biography) had never prosecuted a case before, was doing the interrogation. Kavanaugh, a Yale graduate, was seen as one of the rising stars on the team: extremely bright, an establishment man in his late twenties with Harrison Ford looks and a demeanor to match.

Knowlton would later recount that during the proceedings he “was treated like a suspect,” with Kavanaugh focusing more on his character than on the potentially valuable information he had to offer. Kavanaugh asked a series of questions about Knowlton’s encounter with the Hispanic-looking man including one of a graphic sexual nature.

In contrast with Ruddy’s toned-down version, here is how Richard Poe described the grand jury interrogation, the details of which he got from the chapter entitled “Street Fascism” in Ambrose Evans-Pritchard’s 1997 book, The Secret Life of Bill Clinton:

Perhaps the most telling indication of Starr's attitude toward Knowlton is the humiliating cross-examination to which this brave man was subjected before the grand jury. Knowlton says that he was "treated like a suspect." Prosecutor Brett Kavanaugh appeared to be trying to imply that Knowlton was a homosexual who was cruising Fort Marcy Park for sex. Regarding the suspicious Hispanic-looking man he had seen guarding the park entrance, Kavanaugh asked, Did he "pass you a note?" Did he "touch your genitals?"

Knowlton flew into a rage at Kavanaugh's insinuations. Evans-Pritchard writes that several African American jurors burst into laughter at the spectacle, rocking "back and forth as if they were at a Baptist revival meeting. Kavanaugh was unable to reassert his authority. The grand jury was laughing at him. The proceedings were out of control."

It was at that point, reports Evans-Pritchard, that Patrick Knowlton was finally compelled to confront the obvious: "the Office of the Independent Counsel was itself corrupt."

July 20

SCOTUSblog, Friday round-up, Andrew Hamm, July 20, 2018. Judge Brett Kavanaugh remains atop the slow-moving Supreme Court news cycle.adam liptak Adam Liptak (right) of The New York Times surveys 12 sets of evaluations spanning 700 pages from about 350 law students at Harvard, Yale and Georgetown and finds “almost only glowing praise for Judge Kavanaugh’s teaching.” Former Harvard students praise Kavanaugh in a letter at Boston Globe.

Lorraine Woellert of Politico covers the refusal of New York Senate Minority Leader Chuck Schumer and other Democratic leaders to meet with Kavanaugh, “another salvo in the deepening cold war” between Trump and Schumer. Elise Viebeck of The Washington Post reports that Senator Dianne Feinstein, Democrat of California, said Wednesday that senators expect to receive “at least 1 million pages of documents” related to Kavanaugh’s time in President George W. Bush’s administration and as a Republican “political operative,” which Viebeck calls “a sign of a mammoth task that could slow the timeline for confirmation hearings.” Coverage on polling about Kavanaugh’s possible confirmation – from Gallup, the Pew Research Center and Fox News – comes from Alex Lubben for Vice News and Nathaniel Rakich of FiveThirtyEight.

Commentary on the confirmation process comes from Kent Greenfield on WBUR’s Cognoscenti blog, who contends that the “Senate should wait to vote on Kavanaugh until we can be sure Trump’s entire presidency is not illegitimate because of espionage, conspiracy, collusion and — yes — treason.” Dahlia Lithwick and Jed Shugerman of Slate credit Kavanaugh for “his candor in taking his stands against Roe last year,” but argue that this topic “must also be addressed directly during his confirmation.”

David Savage of Los Angeles Times reports that the “Supreme Court could have a conservative majority to strike down bans on semi-automatic weapons in California and other liberal states and to decree that law-abiding Americans have a right to carry a gun in public.” Mark Sherman and Jennifer Peltz of Associated Press report that although Kavanaugh’s record on the U.S. Court of Appeals for the District of Columbia Circuit does not “directly deal with LGBT issues,” “his approach to judging leads some scholars and activists to believe he is unlikely to echo Kennedy’s votes.”

washington post logoWashington Post, Russian firm indicted in Mueller probe cites Supreme Court nominee’s decision to argue that charges should be dismissed, Robert Barnes, July 20, 2018. A Russian company accused by special counsel Robert S. Mueller III of being part of an online operation to disrupt the 2016 presidential campaign is leaning in part on a decision by Supreme Court nominee Brett M. Kavanaugh to argue that the charge against it should be thrown out.

brett kavanaughThe 2011 decision by Kavanaugh (right), writing for a three-judge panel, concerned the role that foreign nationals may play in U.S. elections. It upheld a federal law that said foreigners temporarily in the country may not donate money to candidates, contribute to political parties and groups or spend money advocating for or against candidates. But it did not rule out letting foreigners spend money on independent advocacy campaigns.

Kavanaugh “went out of his way to limit the decision,” said Daniel A. Petalas, a Washington lawyer and former interim general counsel for the Federal Election Commission.

washington post logoWashington Post, Opinion: Here’s who should demand to see Kavanaugh’s White House paper trail, Ronald A. Klain, July 20, 2018. Ronald A. Klain, a Post contributing columnist, served as a senior White House aide to Presidents Barack Obama, where he worked on the selection and confirmation of Justices Sonia Sotomayor and Elena Kagan, and Bill Clinton. He was also a senior adviser to Hillary Clinton’s 2016 campaign.

“Brett Kavanaugh’s White House documents” may be the five least sexy words in a Supreme Court confirmation battle touching on many of our society’s most divisive issues. But the list of people who should demand their full release before Kavanaugh’s Senate hearings get underway is quite long — and contains a few surprises.

elena kagan harvard law schoolThe documents in question, from Kavanaugh’s time as a senior policy and legal aide to President George W. Bush, may offer rich insights into what he thinks about critical legal matters. Kavanaugh’s supporters justifiably boast of his stellar résumé, but in doing so they highlight its similarity to Justice Elena Kagan’s — who was likewise a White House policy and legal aide earlier in her career. It should be obvious, then, that just as the Judiciary Committee saw all of Kagan’s White House papers, it should see all of Kavanaugh’s. She is shown at left.

But Senate Republican leaders seem inclined to take whatever subset of materials the administration chooses to provide. So it comes down to this: Is anyone really going to get fired up about a dispute over documents? Who should care about seeing all this paper?

chuck grassley oFirst, Senate Republicans should . . . because they did. When Kagan was nominated, Sen. Charles E. Grassley (Iowa, shown at right) — now the chairman of the Judiciary Committee — said that “for the Senate to fulfill its constitutional responsibility of advise and consent, we must get all of her documents from [ex-president Bill Clinton’s files] and have enough time to analyze them so we can determine whether she should be a Justice.” The then-ranking Republican on the committee said the panel needed “to obtain the documents relating to [Kagan’s White House] service in advance of the hearings,” urging the former and then-current presidents to drop all claims of executive privilege in those documents. That Republican was Sen. Jeff Sessions, now President Trump’s attorney general.

Second, Senate Democratic leaders should be unflinching in their demands to see these documents. The vast majority of the documents were likely seen by a substantial number of people in the Bush White House when they were created and circulated. Some of these ex-officials may still have copies. Even if they don’t, they may know what Kavanaugh wrote about abortion, health care, civil rights and civil liberties. Bush-era officials could have easily shared these recollections with key people in the Trump White House during the process that led to Kavanaugh’s nomination.

Thus, when Kavanaugh testifies before the Judiciary Committee and says, inevitably, that he will offer “no hints, no winks, no nods” on potential rulings — that answer may not be true for everyone: The White House may indeed have ample “hints and nods,” by having seen (or been briefed on) Kavanaugh’s Bush-era writings. That knowledge should be in the possession of all senators, not just the White House.

Third, red-state Democrats especially should press hard for the documents. These senators are caught between Trump-led pressure demanding support for the nomination and Democratic base pressure demanding opposition. They have blunted these forces by saying that will decide based on the record, not politics.

But how can they decide based on the record if the White House withholds Kavanaugh’s records? And if the White House will not produce them in full, what more common-sense reason is there to oppose Kavanaugh’s confirmation than “I’m not going to vote for someone for the Supreme Court unless I see the paper trail”? It’s an argument tailor-made for practical voters in “Show Me” Missouri and throughout the Midwest.

July 18

Reason TV, Judge Andrew Napolitano on Trump, SCOTUS, and the Return of Freedom Watch, Nick Gillespie, July 18, 2018 (22:39 mins.). The most libertarian legal analyst on cable news dishes on Brett Kavanaugh, the end of his GOP, and his forthcoming new show.

A former New Jersey Superior Court judge, Napolitano is a nationally syndicated columnist—you can read him at Reason—and the author of a shelf full of books about law, history, and race in America.

Reason caught up with the judge at FreedomFest, the annual event held every July in Las Vegas. We talked about Donald Trump's ongoing makeover of the federal judiciary, whether Supreme Court nominee Brett Kavanaugh will be good for libertarians, what it's like to be an ex-Republican, and the imminent return of Freedom Watch, the popular and controversial show that Napolitano hosted on Fox Business from 2006 to 2010.

July 14

ny times logoNew York Times, Influential Judge, Conservative Warrior — and D.C. Insider, Scott Shane, Steve Eder, Rebecca R. Ruiz, Adam Liptak, Charlie Savage and Ben Protess, July 14, 2018. The carefully crafted narrative around Brett Kavanaugh, President Trump’s Supreme Court nominee, plays down his legacy as a charter member of elite Washington.

When Judge Brett M. Kavanaugh introduced himself to the American people on Monday, with a beaming President Trump beside him, he had a lot to say about his mother, a former high school teacher and a Maryland judge. He accorded his father strikingly less attention — just 34 words, compared with 132 about his mother — mentioning his “unparalleled work ethic” while not saying exactly what work he did.

john roberts oYet Ed Kavanaugh’s career may shed light on his son’s hostility to government regulation, a major reason conservatives are so enthralled by his nomination to the Supreme Court. He spent more than two decades in Washington as a top lobbyist for the cosmetics industry, courting Congress and combating regulations from the Food and Drug Administration and other agencies. (Among his hires for legal work: John G. Roberts Jr. (shown at right), now the chief justice.)

July 13

ny times logoNew York Times, Opinion: Does Brett Kavanaugh Spell the End of Voting Rights? Ari Berman, July 13, 2018. Mr. Berman is a journalist who specializes in voting rights. If he is confirmed for the Supreme Court, we will see the most extreme court on civil rights since the era of Jim Crow.

john roberts oThe threat of voter disenfranchisement will get worse if Judge Kavanaugh is confirmed to the court. His opinion in the South Carolina case and his record in civil rights matters suggests that he will join with the court’s conservative justices to further roll back voting rights protections and other civil rights laws.

If Judge Kavanaugh is confirmed, Chief Justice John Roberts (shown at right) will become the new swing voter. That’s terrible news for voting rights.

July 12

brett kavanaughSCOTUSblog,Thursday round-up, Edith Roberts, July 12, 2018. The nomination of Judge Brett Kavanaugh to the Supreme Court remains front and center in the news. For The Washington Post, Amy Brittain reports that financial disclosures and information provided by the White House indicate that “Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets.”

For The New York Times, Katie Benner reports that “Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the government documents of Judge Brett M. Kavanaugh,” and that the request “was an unusual insertion of politics into federal law enforcement.” For The Washington Post’s Fact Checker column, Salvador Rizzo examines speculation about “a past business relationship between Donald Trump and one of Kennedy’s sons” that some have suggested may have influenced the justice’s recent rulings or his decision to retire, giving the allegations four Pinocchios.

At CNN, Joan Biskupic analyzes Kavanaugh’s record, concluding that “he stands to be more than just a reliable vote for the right” and that “[h]e could powerfully influence the country’s legal agenda for decades.” For The Washington Post, Robert Barnes and Ann Marimow report that “Kavanaugh has only one major abortion ruling in his 12 years on the federal bench, but that forceful opinion will define the coming debate on what his elevation to the Supreme Court would mean for a woman’s constitutional right to the procedure.” At Bloomberg, Sahil Kapur and Greg Stohr report that “senators and activists on both sides of the debate” say “Kavanaugh’s views on gun rights may push the court to expand Second Amendment protections.”

washington post logoWashington Post, What to expect from Brett Kavanaugh's confirmation battle, Amy Brittain, July 11, 2018. Supreme Court nominee Brett M. Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets, according to a review of Kavanaugh’s financial disclosures and information provided by the White House.

White House spokesman Raj Shah told The Washington Post that Kavanaugh built up the debt by buying Washington Nationals season tickets and tickets for playoff games for himself and a “handful” of friends. Shah said some of the debts were also for home improvements.

In 2016, Kavanaugh reported having between $60,000 and $200,000 in debt accrued over three credit cards and a loan. Each credit card held between $15,000 and $50,000 in debt, and a Thrift Savings Plan loan was between $15,000 and $50,000.

washington post logoWashington Post, In major abortion ruling, Kavanaugh offers clues of how he might handle divisive issue, Robert Barnes and Ann E. Marimow, July 12, 2018. Judge Brett M. Kavanaugh issued a strongly worded dissent last fall in a case involving a pregnant immigrant teenager in federal custody.

ny times logobrett kavanaughNew York Times, Democrats Zero In on Nominee’s View of Presidential Power, Sheryl Gay Stolberg, July 12, 2018 (print edition). Democrats thought the weakness of a Supreme Court nominee would be health care and abortion. Then came Brett M. Kavanaugh’s writings on shielding presidents from investigation.

Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

Senator Chuck Schumer of New York, the Democratic leader, said in an interview on Wednesday that Judge Kavanaugh’s belief in broad presidential authority was “just off the deep end.”

For Democrats facing an uphill struggle to block Judge Kavanaugh’s confirmation, his protective views of the presidency could prove to be a bright red ribbon. Rather than just playing it safe with a broad swath of voters worried about access to health care and abortion, Democrats now see an opportunity to excite their base by fanning fears that the highest court in the land could turn into a bulwark to protect the man appointing its members.

The Hill, Yale Law School students, alumni denounce Trump Supreme Court pick, Justin Wise, July 12, 2018. More than 400 current and former Yale Law School students are banding together to denounce President Trump's latest Supreme Court nominee, Brett Kavanaugh, saying that "people will die" if the Yale alum is confirmed.

"Judge Kavanaugh’s nomination presents an emergency — for democratic life, for our safety and freedom, for the future of our country," they wrote in an open letter published earlier this week. "Without a doubt, Judge Kavanaugh is a threat to the most vulnerable. He is a threat to many of us, despite the privilege bestowed by our education, simply because of who we are."

Kavanaugh graduated from Yale Law School in 1990 and has spent the past 12 years as a federal judge on the nation’s second most powerful court — the U.S. Court of Appeals for the District of Columbia Circuit. He was nominated by Trump on Monday to replace Justice Anthony Kennedy on the Supreme Court. His nomination led to glowing praise from Yale and Yale law professors. In an op-ed for The New York Times, professor Akhil Reed Amar made a liberal's case for Kavanaugh. In addition, the school sent out a press release with multiple endorsements from the university's faculty.

July 11

ny times logobrett kavanaughNew York Times, Trump Subpoena May Put Nominee’s Legal Theory to the Test, Adam Liptak, July 11, 2018 (print edition). Judge Brett M. Kavanaugh (shown at right) has questioned the wisdom of forcing sitting presidents to answer questions from prosecutors.

ny times logoNew York Times, Democrats Zero In on Nominee’s View of Presidential Power, Sheryl Gay Stolberg, July 11, 2018.  Democrats thought the weakness of a Supreme Court nominee would be health care and abortion. Then came Brett M. Kavanaugh’s writings on shielding presidents from investigation.

Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

Senator Chuck Schumer of New York, the Democratic leader, said in an interview on Wednesday that Judge Kavanaugh’s belief in broad presidential authority was “just off the deep end.”

For Democrats facing an uphill struggle to block Judge Kavanaugh’s confirmation, his protective views of the presidency could prove to be a bright red ribbon. Rather than just playing it safe with a broad swath of voters worried about access to health care and abortion, Democrats now see an opportunity to excite their base by fanning fears that the highest court in the land could turn into a bulwark to protect the man appointing its members.

washington post logoWashington Post, The elite world of Brett Kavanaugh, Paul Schwartzman and Michelle Boorstein, July 11, 2018. Trump’s nominee to the Supreme Court grew up in Washington and lives in one of its most affluent neighborhoods, among Democrats who avoid talking politics with him.

ny times logoNew York Times, Rosenstein Makes Unusual Request on Court Nominee’s Files, Katie Benner, July 11, 2018.  Rod J. Rosenstein, the deputy attorney general, asked each of the nation’s 93 United States attorneys to provide up to three prosecutors to review the documents of President Trump’s Supreme Court pick.

Former law enforcement officials described Mr. Rosenstein’s directive as a troubling precedent. “It’s flat-out wrong to have career federal prosecutors engaged in a political process like the vetting of a Supreme Court nominee,” said Christopher Hunter, a former F.B.I. agent and federal prosecutor who is running for Congress. “It takes them away from the mission they’re supposed to be fulfilling, which is effective criminal justice enforcement.”

Mr. Rosenstein wrote that he expected to need the equivalent of 100 full-time lawyers to work on Judge Kavanaugh’s confirmation hearing, and that the work would be supervised by the Justice Department’s Office of Legal Policy in Washington. The office typically helps with judicial nominations; most of its staff is made up of career Justice Department lawyers.

July 10

SCOTUSblog, Tuesday round-up: reactions To Kavanaugh Nomination, Andrew Hamm, July 10, 2018 (with links to reports below). Amy Howe has this blog’s coverage; Mark Walsh provides a “view” from the East Room. Additional coverage comes from Nina Totenberg on NPR’s Morning Edition (podcast), Tony Mauro of The National Law Journal and David Jackson and Richard Wolf of USA Today. Commentary comes from Jessica Mason Pieklo of Rewire.News, who writes that “as in all reality TV, there was a clear winner in Trump’s selection process. But unlike on The Bachelorette, the rest of us are the ones who were always going to lose.”

Reporting on Kavanaugh as Washington insider comes from Richard Wolf of USA Today and Joan Biskupic of CNN. Writing for The Economist, Steven Mazie calls Kavanaugh “an unremarkable choice for a Republican president,” notwithstanding that for Trump, “who has departed from so many presidential norms, to have picked someone with close ties to the Washington, DC establishment, may seem surprising for its utter conventionality.”

At The National Law Journal, Tony Mauro lists seven of Kavanaugh’s “more notable rulings that will come into sharp focus now” as his nomination moves forward in the Senate; in a second story at The National Law Journal, Mauro, with Mike Scarcella, compiles “snippets from some of Kavanaugh’s remarks over the years” that could also attract attention. If Kavanaugh is confirmed, it “will not take long before the President’s ambition – to choose a Justice who would vote to roll back constitutional protection for women’s abortion rights – could be fulfilled or frustrated,” reports Lyle Denniston for Constitution Daily. Commentary comes from Bill Blum of Truthdig, who writes that except for Judge Amy Coney Barrett, “Trump could not have chosen a candidate who poses a greater threat to progressive values and causes.”

Reactions to the Kavanaugh nomination

In reaction to President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, politicians and interest groups are releasing statements. SCOTUS Watch is tracking “the public statements made by United States senators about how they plan to vote.” This post tracks the statements by interest groups that we have received. We invite you to alert us (nominationstatements [at] gmail [dot] com) to any statements we have missed.

In support of the nominee:

Alliance Defending Freedom (Michael Farris, president, CEO and general counsel)
Americans United for Life (Catherine Glenn Foster, president and CEO)
Heritage Action for America (Tim Chapman, executive director)
Institute for Free Speech (Bradley Smith, chairman and founder)
March for Life (Jeanne Mancini, president)
National Rifle Association of America, Institute for Legislative Action
Pacific Legal Foundation
The Catholic Association

Against or concerned about the nominee:

Anti-Defamation League (Jonathan Greenblatt, CEO and national director)
Auburn Seminary
Bend the Arc: Jewish Action (Stosh Cotler, CEO)
Brady Campaign (Avery Gardiner, co-president)
Center for Reproductive Rights (Nancy Northup, president and CEO)
Demos (Chiraag Bains, director of legal strategies)
Everytown for Gun Safety (John Feinblatt, president)
Human Rights Campaign
Indivisible Project (Ezra Levin, co-executive director)
Lambda Legal
People for the American Way (Michael Keegan, president)
Democracy for America (Jim Dean, chair)
Freedom From Religion Foundation
Physicians for Reproductive Health (Willie Parker, board chair)

washington post logoWashington Post, Winners and losers from Trump’s second search for a new justice, Amber Phillips, July 10, 2018. President Trump’s nomination process was not without controversy, and not everyone came out ahead. The big winner of President Trump’s second Supreme Court pick is Trump himself. He seized the retirement of Justice Anthony M. Kennedy to remind the Republican Party why it needs him: He has the power to make the Supreme Court lean more reliably conservative for a generation.

washington post logoWashington Post, With Brett Kavanaugh, Georgetown Prep can count two Supreme Court nominees among its alumni, Moriah Balingit​, July 10, 2018. Kavanaugh graduated from the elite prep school in 1983, two years ahead of Justice Neil Gorsuch.

nbc news logoNBC News, How Kavanaugh ruled on gun control, health care, and other hot-button issues, Jessica Spitz, July 10, 2018.  Supreme Court nominee Judge Brett Kavanaugh has written almost 300 opinions on a range of issues over his 12 years serving on the federal appellate court.

Corruption Allegations Against Kennedy, Kavanaugh

djt brett kavanaugh family 7 9 18 SmallWall Street On Parade, The Dark Money Behind Trump’s Supreme Court Pick, Pam Martens and Russ Martens, July 10, 2018. There is something revoltingly un-American about a man who stands with his wife and two young daughters to accept the nomination for the highest court in America, talks about feeding the homeless and coaching girls’ basketball – all the while knowing that a lot of very dirty corporate money lurks in the shadows of his nomination.

We’re talking about the fact that Trump made his Supreme Court nominee selection of Brett Kavanaugh from a list that was pre-approved by the Federalist Society – a receptacle for the dark money that flows from the billionaire Charles Koch’s network of corporate polluters and democracy-killing front groups that got the Supreme Court to rubber stamp unlimited corporate money in political campaigns via the Citizens United decision in 2010.

According to the Desmog, using data compiled by the Conservative Transparency project, Donors Trust and Donors Capital Fund are two of the largest dark money groups contributing to the Federalist Society. Donors Trust has given $13,494,100 in total while Donors Capital Fund has given another $11,366,368. The two nonprofits share the same address: 1800 Diagonal Road, Suite 280, Alexandria, Virginia. The actual contributors behind those large sums remain anonymous as a result of the structure of the groups.

The Federalist Society has received another $4 million in total from the Charles G. Koch Charitable Foundation and another Koch-related group, the Claude R. Lambe Charitable Foundation. In an exclusive report in 2010 we found that Charles Koch’s fingerprints were all over Donors Trust and Donors Capital Fund. We reported the following:

“There are shades of Charles Koch all over Donors Capital and Donors Trust. Two grantees receiving repeat and sizeable grants from Donors Capital are favorites of the Koch foundations: George Mason University Foundation and Institute for Humane Studies. Another tie is Claire Kittle. A project of Donor’s Trust is Talent Market.org, a headhunter for staffing nonprofits with the ‘right’ people. Ms. Kittle serves as Talent Market’s Executive Director and was the former Program Officer for Leadership and Talent Development at the Charles G. Koch Charitable Foundation.

Then there is Whitney Ball, President of both Donors Capital Fund and Donors Trust. Ms. Ball was one of the elite guests at the invitation-only secret Aspen bash thrown by Charles Koch in June of this year, as reported by ThinkProgress.org. Also on the guest list for the Koch bash was Stephen Moore, a member of the Editorial Board at the Wall Street Journal. Mr. Moore is a Director at Donors Capital Fund. Rounding out the ties that bind is Lauren Vander Heyden, who serves as Client Services Coordinator at Donors Trust. Ms. Vander Heyden previously worked as grants coordinator and policy analyst at the Charles G. Koch Charitable Foundation.

“Legal counsel for the Kochs has declined to respond to two emails with a week’s lead time seeking clarification of the relationship the Kochs have to Donors Capital and Donors Trust.”

Our investigation was initiated to root out who had funded the circulation of an anti-Muslim film called “Obsession: Radical Islam’s War Against the West.” Just seven weeks before the 2008 Presidential election between John McCain and Barack Obama, and as a whisper campaign emerged linking Obama to Muslims, 100 newspapers and magazines across the U.S. distributed DVDs of the race-baiting “documentary.” Between the newspapers and a separate direct mail campaign, 28 million DVDs flooded households in swing voter states. Donors Capital Fund paid $17,778,600 to the Clarion Fund to carry out the effort. The funds from Donors Capital Fund represented 96 percent of all funds the Clarion Fund received in 2008.

djt greets supreme court justice anthony kennedy picture screenshot

Palmer Report, Opinion: Exposed: secret corrupt retirement deal between Anthony Kennedy and Donald Trump, Bill Palmer, July 10, 2018. Supreme Court Justice Anthony Kennedy was secretly negotiating with Donald Trump about his replacement, even as he was casting major pro-Trump votes that were out of character with his own judicial record. This comes on top of earlier revelations that Kennedy’s son played a key role at Trump’s favorite Russian money laundering bank. We’re now looking at a full blown scandal that’s getting uglier by the hour.

anthony kennedy oNBC News is now backing off from its earlier implication that Anthony Kennedy (shown at right) only agreed to retire if Donald Trump specifically picked Brett Kavanaugh, and is now reporting that Kennedy provided Trump with five names that would be acceptable to him. Brett Kavanaugh was the only conservative name on the list, so Kennedy would have known that Trump could only pick Kavanaugh. These negotiations reportedly began months ago. This means that Kennedy was secretly negotiating his retirement with Trump while he was casting the swing vote on issues like Trump’s Muslim Ban.

While Kennedy has sided with conservatives on fiscal issues, he’s often sided with liberals on civil rights issues like gay marriage; his vote in favor of the Muslim Ban was out of character. If Kennedy had voted against Trump on the Muslim Ban, at a time when he was negotiating with Trump over his potential replacement, it likely would have prompted the vindictive Trump to break off those negotiations. Kennedy would have known this – meaning that his final votes can be seen as fully corrupt.

If anyone were tempted to give Anthony Kennedy the benefit of the doubt about the corrupt nature of this secret deal, that goes out the window within the context of the fairly straight line that can be drawn from Kennedy to his son to Donald Trump to Russian money laundering to the Trump-Russia election rigging conspiracy. Kennedy’s legacy is clearly ruined; the only question is whether he’ll end up facing criminal charges. Follow the money.

fox news logo SmallFox News, NBC News reporter deletes tweet claiming Trump, Kennedy were in cahoots over Kavanaugh selection, Brian Flood, July 10, 2018.  NBC News Capitol Hill reporter Leigh Ann Caldwell on Tuesday deleted a tweet that had triggered backlash, claiming President Trump and retiring Supreme Court Justice Anthony Kennedy were in cahoots to get Judge Brett Kavanaugh to fill the seat.

Caldwell initially tweeted, “On Kavanaugh pick… Kennedy and Trump/WH had been in negotiations for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh, his former law clerk, Kennedy felt comfortable retiring, according to a source who was told of the discussion.”

"I’ve deleted this tweet," Caldwell later tweeted, "because it incorrectly implies a transactional nature in Kennedy’s replacement. I am told by a source who was not directly part of the talks that Kennedy provided Pres. Trump/ WH a list of acceptable replacements."

Kavanaugh, 53, formerly clerked for Kennedy and was elevated to the powerful federal appeals court in the District of Columbia by former President George W. Bush, under whom he had also served as a White House lawyer and staff secretary. Trump officially nominated Kavanaugh to fill Kennedy’s seat on the Supreme Court on Monday night.

Politico, How a private meeting with Kennedy helped Trump get to ‘yes’ on Kavanaugh, Christopher Cadelago, Nancy Cook and Andrew Restuccia, July 9, 2018. While he was eager to keep the suspense alive, the president was always leaning toward Kennedy’s former clerk. After Justice Anthony Kennedy told President Donald Trump he would relinquish his seat on the Supreme Court, the president emerged from his private meeting with the retiring jurist focused on one candidate to name as his successor: Judge Brett Kavanaugh, Kennedy’s former law clerk.

Trump, according to confidants and aides close to the White House, has become increasingly convinced that “the judges,” as he puts it, or his administration’s remaking of the federal judiciary in its conservative image, is central to his legacy as president. And he credits Kennedy, who spent more than a decade at the center of power on the court, for helping give him the opportunity.

July 10

jefferson morleyJFKFacts.org, Opinion: On JFK secrecy, Brett Kavanaugh sides with the CIA, Jefferson Morley (right), July 10, 2018. The D.C. Circuit U.S. Court of Appeals ruled 2-1 on Monday that the CIA does not have to pay my court costs incurred in the long-running FOIA lawsuit Morley v. CIA. The split decision was joined by Judge Brett Kavanaugh (below left), who was nominated by President Trump later that day to serve on the the Supreme Court.

brett kavanaughAbout the information I obtained via litigation, the unsigned opinion said, “the public benefit was small.” The decision made no reference to extensive coverage of Morley v . CIA in the New York Times, Fox News, San Diego Union, St. Paul Pioneer Press, CBS News in Dallas, and the New Yorker, among many other news organizations.

The Times and the U.K. Daily Mail, even published a photo, obtained by the lawsuit, of CIA officer George Joannides (show at right below receiving a lifetime award from the CIA) receiving a medal after he stonewalled JFK investigators in 1978. In the majority view, public interest in Morley v CIA is not a measure of its public benefit.

george joannides cia citation 1981 cia photoA strong dissent by Judge Karen Henderson takes a much more balanced and independent view of the case, in my view. Appointed by President George H.W. Bush in 1990, Henderson points out that the court had previously found that I had met the standard of “public benefit” established in case law.

In a 2013 decision the court stated:

“Morley’s request had potential public value. He has proffered — and the CIA has not disputed — that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. Travel records showing a very close match between Joannides’s and Oswald’s times in New Orleans might, for example, have (marginally) supported one of the hypotheses swirling around the assassination. In addition, this court has previously determined that Morley’s request sought information “central” to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. Under these circumstances, there was at least a modest probability that Morley’s request would generate information relevant to the assassination or later investigations.”

“In other words,” Henderson writes, “we held that Morley satisfied the public-benefit factor in this case,”

cia logoBy ignoring this finding, Henderson argues, the majority opinion ultimately depends on the assertion that the CIA responded “reasonably” to my request. Yet, Henderson notes, the ruling also ignores the fact that the appellate court had ruled the agency’s initial response to my FOIA request was deficient on seven different legal points.

Henderson again:

“The majority discusses five in its opinion. It acknowledges that the CIA: (1) missed the 20-day statutory deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley to NARA rather than responding to his FOIA request itself, Maj. Op. 7-11; (3) failed to search its operational files, Maj. Op. 11; (4) submitted an incomplete Glomar response, Maj. Op. 11-12; and (5) relied on an interpretation of Exemption 2 that was later overruled, Maj. Op. 12. It addresses these errors of law seriatim and labels them “incorrect legally,” Maj. Op. 9, but not “unreasonable.” To me, the CIA’s multiple flawed legal positions suggests that it was “recalcitrant” in declining to produce any documents before being sued. Davy IV, 550 F.3d at 1162. At the least, the errors collectively undermine the district court’s conclusion that the fourth factor “weighs heavily against Morley.” Morley X, 245 F. Supp. 3d at 78 (emphasis added).”

Henderson concludes:

“In sum, I believe the district court erred on two levels: it erred in evaluating each of the four factors individually and abused its discretion in weighing them against one another. Accordingly, this case does not call for “[d]eference piled on deference.” Maj. Op. 11. It calls for an adherence to Davy IV and our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.”

Unfortunately, the majority, meaning Kavanaugh and Trump appointee Judge Gregory Katsas, disagreed. I have 45 days to appeal.

July 9

Roll Call, Opinion: GOP Should Beware of Roe v. Wade Becoming the Fight, Patricia Murphy, July 9, 2018. Republicans could lose the war for female voters for a generation. Now that we know President Donald Trump has settled on Judge Brett Kavanaugh as his next choice for the Supreme Court, Senate Republicans are poised to deliver on a promise they have been making to conservatives for decades.

In Kavanaugh, the GOP has both its biggest opportunity to move the court to the right for a generation as well as its biggest danger — months of unscripted moments when abortion, reproductive rights and women will be at the center of a heated debate that Republicans have proved uniquely terrible at navigating over the years.

With a slim GOP majority in the Senate and nearly a dozen Democratic senators up for re-election in red states this fall, the chances are good that Kavanaugh will make it through his confirmation process fairly easily, even if it isn’t pretty.

But the chances are equally high that in the process of winning the confirmation battle, Republicans could also lose the war for female voters for a generation as the fight over the future of the court becomes a debate over Roe v. Wade, and whether women or the government should decide when, or even whether, a woman carries a pregnancy to term.

July 9

djt brett kavanaugh family 7 9 18 Small

President Trump introduces Supreme Court nominee Brett Kavanaugh and his family on July 9 at the White House

washington post logoWashington Post, Trump picks Judge Kavanaugh for Supreme Court, Robert Costa, Robert Barnes and Felicia Sonmez​, July 9, 2018. Conservative stalwart has deep ties to the Republican establishment. Brett Kavanaugh, 53, served on the U.S. Court of Appeals and worked in George W. Bush’s White House before moving to the federal bench. Democrats are preparing for a prolonged confirmation showdown on Capitol Hill — determined to rally in defense Roe v. Wade and all areas of the law they fear could be ruptured by the court.

The Intercept, Chuck Schumer Warns Senate Democrats: Fight Brett Kavanaugh Or Pay the Price From the Base, Ryan Grim, July 9, 2018. Senate Minority Leader Chuck Schumer is warning Democrats in the chamber that if they don’t put up a brutal fight over the next Supreme Court justice, there will be hell to pay from the Democratic base, according to senior Senate aides briefed on Schumer’s message.

Democratic leadership’s response in the two weeks since Justice Anthony Kennedy announced his retirement has been in stark contrast to Senate Majority Leader Mitch McConnell’s firm, across-the-board rejection of any Obama nominee sent up in 2016. McConnell, flexing the power of a majority leader, announced within an hour of the news of the February 2016 death of Antonin Scalia that under no circumstances would the Senate consider a nominee before the November election.

What that fierce opposition will look like, and how broad it will be, remains to be seen, as Schumer lacks the full authority over the Senate that McConnell wielded in 2016. But as a major political party just two seats shy of a majority, Democrats are not as powerless as they sometimes let on.

washington post logoWashington Post, A more conservative high court could step, not lurch, to the right, Robert Barnes​, July 9, 2018. President Trump’s nominee and fellow conservatives on the bench can achieve right-of-center goals without overturning rulings such as Roe v. Wade.

washington post logoWashington Post, Kavanaugh has endorsed robust views of presidential powers, Ann E. Marimow, July 9, 2018. ​The record of the federal appeals court judge suggests he would be more to the right than retiring Justice Anthony M. Kennedy.

ny times logoNew York Times, Opinion: If the Supreme Court is Nakedly Political, Can It Be Just? Lee Epstein and Eric Posner, July 9, 2018. President Trump was always going to pick a conservative for the Supreme Court. The only question has been whether to replace Justice Anthony Kennedy with a “business conservative” or a “religious conservative.”

But we wonder whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.

In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution.

Ms. Epstein is a political scientist and law professor at Washington University. Mr. Posner is a professor at the University of Chicago Law School.

July 7

raymond kethledgeSCOTUSblog, Potential nominee profile: Raymond Kethledge, Amy Howe, July 7, 2018. Like Thomas Hardiman, another potential nominee on the president’s shortlist, [U.S. 6th Circuit Court of Appeals] Judge Raymond Kethledge (right) would bring educational diversity to a bench on which all of the current justices attended Ivy League law schools:

He received both his undergraduate and law degrees from the University of Michigan. He has returned to the law school as a lecturer to teach classes on legal writing and advocacy. (While he is there, he could bump into another potential nominee on Trump’s shortlist, Michigan Supreme Court Justice Joan Larsen, who has also taught there.)

During a decade on the bench, Kethledge has compiled an extensive body of opinions but has not weighed in on several high-profile and potentially divisive issues, including abortion and affirmative action. Conservative commentator Hugh Hewitt has nonetheless dubbed Kethledge “Gorsuch 2.0,” “in the mold of Antonin Scalia.”

July 4

djt brett kavanaugh amy coney barrett

ny times logoadam liptakNew York Times, A Rift on the Right, Shown by Two Potential Court Picks, Adam Liptak (shown at right), July 4, 2018 (print edition). The fight over who should replace Justice Anthony M. Kennedy on the Supreme Court is far from over, and there are still a half-dozen plausible candidates in the mix.

But the stark contrast between two of the leading contenders — Judge Brett M. Kavanaugh and Judge Amy Coney Barrett — reflects the division on the right between the conservative legal establishment, which is hostile to government regulation and the administrative state, and social conservatives, who are focused on issues like abortion and religious freedom.

Other candidates, notably Judges Raymond M. Kethledge and Amul R. Thapar, both of the Sixth Circuit, in Cincinnati, have had cordial meetings with President Trump, and a White House spokesman said Mr. Trump interviewed three more possible choices on Tuesday. See also "Facebook Ads Offer Peek at Looming Supreme Court Fight."

amy coney barrett headshot notre dame photoSCOTUSblog, Potential nominee profile: Amy Coney Barrett, Amy Howe, July 4, 2018. In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, 2016. First on the new list – because it was in alphabetical order – was Amy Coney Barrett (right), a Notre Dame law professor (and former Scalia clerk) who had recently been confirmed to a seat on the U.S. Court of Appeals for the 7th Circuit. She is shown in a Notre Dame photo.

Barrett’s confirmation hearings had received considerable attention after Democrats on the Senate Judiciary Committee – most notably, Senator Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging. Feinstein’s criticism did not stop Barrett from being confirmed, and since then there has been speculation that it may have in fact strengthened her case to fill the seat that will be vacated by the retirement of Justice Anthony Kennedy.

The 46-year-old Barrett grew up in Metrairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. Barrett graduated magna cum laude from Rhodes College, a liberal arts college in Tennessee affiliated with the Presbyterian Church, in 1994. (Other high-profile alumni of the school include Abe Fortas, who served as a justice on the Supreme Court from 1965 to 1969 and Claudia Kennedy, the first woman to become a three-star general in the U.S. Army.) ....

Barrett then held two high-profile conservative clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit, from 1997-1998 then with the late Justice Antonin Scalia, from 1998-1999. After leaving her Supreme Court clerkship, she spent a year practicing law at Miller, Cassidy, Larroca & Lewin, a prestigious Washington D.C. litigation boutique that also claims former U.S. solicitor general Seth Waxman, former deputy attorney general Jamie Gorelick, and two regular contributors to this blog – John Elwood and editor Edith Roberts – as alums.

Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly, Virginia’s Tim Kaine, and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.

Because Barrett has spent just eight months on the 7th Circuit, she has compiled a relatively small body of opinions, most of them fairly uncontroversial.

One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the EEOC in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African-American employees to stores in heavily African-American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.

July 3

washington post logoWashington Post, There’s no conspiracy between Trump and Kennedy. There’s just the swamp, David Litt, July 3, 2018. A surprising number of progressives are dusting off Glenn Beck-style chalkboards, connecting the dots in a web with Supreme Court Justice Anthony M. Kennedy’s son in the center. But the search for a shadowy conspiracy surrounding the Kennedy and Trump families obscures a far greater scandal taking place right in front of us: the dangerous concentration of wealth and political power in the United States.

deutsche bank logoThe theory, for the record, goes something like this: Justin Kennedy worked at Deutsche Bank. Deutsche Bank was the only Wall Street firm willing to lend money to Donald Trump. In 2017, Deutsche Bank was fined $630 million for its involvement in a Russian money-laundering scheme. After his first address to Congress, President Trump told Kennedy, “Say hello to your boy,” to which the justice replied, “Your kids have been very nice to him.” Now, the court’s swing justice is retiring, giving President Trump the chance to cement a far-right court for a generation.

The implication is that Kennedy was coerced, via bribery, blackmail or something similarly sinister, into giving up his seat before the election. But the line between cause and effect remains hazy. In a tweet that accumulated more than 35,000 likes, @ProudResister summed it up as follows: “THAT’S WAY TOO MANY ‘COINCIDENCES.’ ”

There are, it must be said, a few problems with this all-caps logic. First, coincidence does not equal conspiracy. Democrats and progressives have long stood for science, facts and rational argument. Abandoning a commitment to the truth isn’t beating Trump at his own game; it’s surrendering the field. Second, you don’t need a tortured rationale to explain Kennedy’s actions. He’s a conservative. At 82 years old, he’s ready to retire, and he’d rather be replaced by another Neil M. Gorsuch than another Sonia Sotomayor.

But there’s a third and far more important reason to look past the convoluted speculation around Kennedy and his son Justin. It distracts us from a relationship that is legal but outrageous, nonetheless.

The existence of a personal connection between a conservative Supreme Court justice and a real estate billionaire turned president seems to shock some political observers. It shouldn’t. Of course the Trumps and Kennedys know each other: Both families belong to the most exclusive circle of America’s elite. This upper-upper crust has members from across the country, but it functions as a kind of a gated community, one in which personal and professional relationships inevitably intertwine. America’s super-elite sends its kids to the same schools. They bump into each other at Davos or Aspen or the Alfalfa Club in Washington. They socialize. They do business. They donate. They raise money. They take one another’s calls.

ny times logoNew York Times, Why Court Pick May Affect Gay Marriage as Well as Abortion, Liam Stack and Elizabeth Dias, July 3, 2018. In the week since Justice Anthony M. Kennedy announced his retirement, the future of Roe v. Wade has dominated the conversation among both liberals and conservatives, becoming a flash point in the partisan battle over President Trump’s pick to fill the seat.

The effect Justice Kennedy’s retirement could have on lesbian, gay, bisexual and transgender rights has received less attention. The prospect of a more conservative justice, though, has L.G.B.T. rights groups worried about legal challenges from conservative groups that oppose gay marriage, who may see an opportunity to challenge rulings that have established its legality.

L.G.B.T. groups have made great advances in recent years thanks largely to a string of Supreme Court decisions written by Justice Kennedy, including cases that legalized gay sex and established a right to same-sex marriage.

washington post logobrett kavanaughWashington Post, Leading contender to be Trump’s Supreme Court pick faces scrutiny from social conservatives, Robert Costa and Josh Dawsey​, July 3, 2018. An intensifying debate over Judge Brett M. Kavanaugh, a front-runner in President Trump’s search for a Supreme Court nominee, gripped Republicans on Tuesday, with conservative critics highlighting past rulings and his links to GOP leaders while his allies — including inside the White House — forcefully defended him.

The sparring over Kavanaugh, one of four federal appeals court judges who met with the president Monday, underscored the challenges facing Trump as he aims to pick a successor to retiring Justice Anthony M. Kennedy by his own July 9 deadline. Even as Trump mulls a shortlist that has been carefully cultivated by influential Republican lawyers, frictions in the conservative legal community and on Capitol Hill threaten to disrupt the search process.

The political moment for Trump remained fragile as a president devoted to his base weighed what a Kavanaugh selection could mean for him, unfolding amid a flurry of op-eds and phone calls praising the 53-year-old judge as well as a clamor from those who see him as out of step on health care and abortion, or too tied to George W. Bush’s White House.

July 2

Salon, Donald Trump, Anthony Kennedy and the “boy” at Deutsche Bank: Not just about the money, Jesse Kornbluth, July 2, 2018. There’s a tangled web linking the Trump and Kennedy families. But financial corruption isn’t the whole story.

As a way of looking at a presidency that is enamored of every possible felony -- self-dealing, conflicts of interest, emoluments, collusion with foreign governments and domestic corporations -- crime-breeds-crime is a reasonable way to look at any Trump-related event.

But the resignation of a Supreme Court justice? Because Trump cares so much about money, that’s been suggested. And there’s smoke: the links between Trump, Kennedy and Kennedy’s son Justin. In years past we’d call that the League of White Men, taking care of their own, behind the scenes, The Way It Is. Today we tend to call it something else: collusion.

Here’s why. On the surface, Kennedy’s resignation looked textbook: He’ll leave effective July 31, at the end of the Supreme Court term, as is traditional. But he announced it on June 27. Hand-delivering his letter to the Oval Office was no surprise to the White House, which had a list of candidates ready to roll out. Trump says he’ll announce his nominee on July 9.

If Kennedy had waited a few weeks, some analysts believe Trump couldn’t have gotten his successor approved before the midterm elections. If the Democrats did well in November, it’s at least conceivable they could have blocked any conservative nominee. Approving a nominee before November means our likely future has the court killing Roe v. Wade, giving more power to corporations, turning the poor and minorities into serfs, exiling or detaining Others the president might choose to torture. That’s huge. But let’s consider the bottom line: For Donald Trump, the only real issue of interest is . . . himself. If a 4-4 Court had to rule on a difficult question -- Does the president have the power to pardon himself? -- it might not go well for Trump.

deutsche bank logoWhat started the speculation about dirty money connecting Trump, Kennedy and his son is the revelation that Kennedy and Trump have had a longstanding relationship through their children and their children’s success. We knew about Trump’s dealings with Deutsche Bank, the only bank willing to do business with him. (It’s also, perhaps not coincidentally, the bank that seems to have the longest illegal relationship with laundered Russian money. In January 2017, it was fined $425 million by New York regulators to settle allegations that it helped Russian investors launder as much as $10 billion through its branches in Moscow, New York and London.) But we’re just finding out about the Trump relationship with Justin Kennedy, the justice’s son, who worked at Deutsche Bank for a decade.

djt neil gorsuch anthony kenned at white house

President Trump in 2017 with Supreme Court Associate Justice William Kennedy, who swore onto the court his former clerk Neil Gorsuch, center

PoliticusUSA.com, Bush Ethics Lawyer Richard Painter Calls For Investigation If Kennedy Was Paid To Resign, Leo Vidal, July 2, 2018. Richard Painter, the richard painterformer White House Ethics Attorney for President George W. Bush, has come up with a way to delay hearings for a new Supreme Court justice to replace retiring Justice Anthony Kennedy.

According to Painter (shown in a file photo), there should be no hearings on a replacement for Kennedy until there is a full and complete investigation into the circumstances surrounding Kennedy’s resignation.

In other words, if Kennedy was paid or bought off in some way by Trump or his family, then the American people need to know about it. After Kennedy’s unexpected retirement announcement several stories appeared in the media claiming financial ties between Kennedy and his two sons and Trump and his family. Some people speculated that Kennedy was bought off in some way due to these extensive and longstanding financial connections.

Late last week Painter tweeted his novel theory for why Senate hearings for Kennedy’s replacement should be delayed:

“The circumstances of Justice Kennedy’s resignation must be investigated by the Senate Judiciary Committee before any replacement is considered. The Constitution does not give Trump the power to use underhanded means to induce Supreme Court resignations.”

As Painter points out it would be both unethical and unconstitutional for a president to “induce Supreme Court resignations” by using financial remuneration of some kind.

Soon after Painter’s tweet there was a response from a group he called “the right wing Power Blog” attacking him for his suggestion:

“The right wing Power Line Blog blows a fuse over this, but Sen. Jud. Comm. must investigate the circumstances of the Kennedy resignation before confirmation hearings for ANY new justice. @GovArne agrees."

Painter is a lifelong Republican who is now running for the U.S. Senate in Minnesota — as a Democrat. He is the subject of an in-depth article today at Salon.com which discusses in detail the transition he has gone through from being in Bush’s White House to being one of Donald Trump’s fiercest critics.

In the article Painter asks the same questions as millions of other Americans:

“Trump admires dictators and authoritarians. His loyalty to Vladimir Putin is clear and he now has a bromance with Kim Jong-un. This is a truly dire situation, but the American people still seem asleep to what is really happening. Where is the outrage? How is Trump able to get away with this?”

Then he adds: “Donald Trump’s conduct is very dangerous for the United States.”

SCOTUSblog, Anthony Kennedy and free speech, Erwin Chemerinsky, July 2, 2018. Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Justice Anthony Kennedy will be remembered as a staunch advocate of freedom of speech, but his actual record is more complicated than that. Kennedy wrote the majority opinions, or joined them, in some of the most important cases protecting free speech in the last 30 years.

Yet, he also wrote, or was part of, decisions limiting the free speech rights of government employees, students and prisoners. Perhaps the easiest way to summarize Kennedy’s free speech jurisprudence is that he generally was on the side of freedom of expression except when the institutional interests of the government were involved.

Kennedy’s most important free speech opinion was Citizens United v. Federal Election Commission, in which the court held in 2010 that corporations have the right to spend unlimited sums in independent expenditures from corporate treasuries to have candidates elected or defeated. The court overruled a precedent from seven years earlier, McConnell v. Federal Election Commission. Kennedy believed that spending money in elections is speech protected by the First Amendment and consistently voted to strike down campaign-finance laws, such as in McCutcheon v. Federal Election Commission (2014); Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011); and Davis v. Federal Election Commission (2008).

ny times logoanthony kennedy oNew York Times, Trump Talks to 4 Candidates as Staff Focuses on Court Pick, Michael D. Shear, July 2, 2018. President Trump said he spoke with four candidates to replace Justice Anthony M. Kennedy, who is retiring (and shown at right), as the White House raced to meet the president’s deadline to announce a Supreme Court nominee in one week.

Speaking to reporters in the Oval Office, Mr. Trump said he likely would meet with two or three other candidates before making his decision. The president has said he plans to announce his choice next Monday, kicking off a sprint to get the nominee confirmed by the fall.

“I had a very, very interesting morning,” Mr. Trump said as he met with Mark Rutte, the prime minister of the Netherlands. White House officials declined to say which potential judicial nominees Mr. Trump talked with Monday morning, but the short list of candidates is believed to include six federal appeals court judges: Thomas M. Hardiman, William H. Pryor Jr., Amul R. Thapar, Brett M. Kavanaugh, Joan L. Larsen and Amy Coney Barrett.

SCOTUS for law students, Supreme Court mysteries and the justices’ papers, Stephen Wermiel, July 2, 2018. In the month of June, when the Supreme Court issues dozens of decisions to conclude its term, who would not want to be a fly on the wall inside the conference of the justices trying to understand what compromises were made or why cases came out as they did?

Rarely has this been more true than this past month, in which a seemingly large number of the court’s most closely watched cases produced decisions that decided much less than was anticipated by court-watchers and litigants.

What is one to do to satisfy curiosity about why, for example, the court yet again declined to confront questions about the constitutionality of political gerrymandering of legislative districts?

The short answer is wait. Wait for what, you ask? Often, the answers to nagging mysteries about what happened inside the court and why can only be answered by historians who some time in the future get to pore over the papers of justices who have long since retired or died.

How does this process work and what might one learn from the papers of the justices?

The first thing to know is that there is no uniformity of any kind among the justices and their files and records. Justices are free to save or destroy whatever records they choose, to donate them wherever they want, to make them available whenever they want and to include whatever content they like.

This thoroughly unregulated field is in marked contrast to the papers of presidents, which are governed by federal law. Under presidential records statutes, every piece of paper must be saved and preserved. The Supreme Court, however, has no such statute, and so it is up to each justice to decide what to do with his or her files.

What has this meant in recent decades? Justices have spread their papers around the country. The largest single repository of justices’ papers is the Manuscript Division of the Library of Congress, housed in the Madison Building in Washington, D.C. There, one can find the papers, among others, of Chief Justices Earl Warren, Fred Vinson, Harlan F. Stone and William Howard Taft, and Associate Justices William J. Brennan, Thurgood Marshall, Harry Blackmun, Hugo Black, William O. Douglas, Byron White, Arthur Goldberg and many more.

Steve Wermiel is a Fellow in Law & Government at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court and directs a Summer Institute on Law & Government for lawyers and law students. He is the co-author of “Justice Brennan: Liberal Champion,” published in 2010. He was the Wall Street Journal Supreme Court correspondent from 1979 to 1991 and has been teaching law since 1991.

SCOTUSBlog, Potential nominee profile: Judge Thomas Hardiman, a close second to Gorsuch and a shortlister again, Amy Howe, July 2, 2018. When President Donald Trump was searching for a nominee in 2017 to fill the vacancy created by the 2016 death of Antonin Scalia, he reportedly narrowed the field to two candidates: then-Judge Neil Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, and Judge Thomas Hardiman (right) of the U.S. Court of Appeals for the 3rd Circuit.

On January 31, 2017, Trump nominated Gorsuch, and the rest is history. But with Justice Anthony Kennedy’s announcement last week that he would step down from the Supreme Court bench, Hardiman’s name has resurfaced as a potential nominee. The 52-year-old Hardiman (who will turn 53 on July 8, the day before Trump is expected to announce his new nominee) has a solidly conservative background and a champion in the president’s sister, Maryanne Trump Barry, who served with Hardiman on the 3rd Circuit and has been described as “high on Hardiman.”

In some ways, Hardiman has more in common with Justice Sonia Sotomayor than with Justice Anthony Kennedy, whom he would replace: The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)

After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was unanimously confirmed to the 3rd Circuit in 2007, at the age of 41. Taking the bench at a young age is yet another similarity with Sotomayor, who also became a district judge at the age of 37 and who took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44. But the comparisons with Sotomayor largely end there. Hardiman is a solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench, and his jurisprudence as a Supreme Court justice likely would be closer to another justice who hails from the 3rd Circuit: Justice Samuel Alito.

July 1

washington post logoWashington Post, ‘We have to pick a great one’: Inside Trump’s plan for a new Supreme Court justice, Philip Rucker and Seung Min Kim, July 1, 2018 (print edition). The president, following a methodical course in hopes of avoiding the lurching disorder that so often engulfs his White House, is moving quickly in hopes of replicating last year’s chaos-free pick of Justice Neil M. Gorsuch.

 

June

June 30

  • Union Rights: Janus v. American Federation of State, County and Municipal Employees Council 31, decided 5-4 on June 27, 2018. *
  • Wedding Cake For Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

ny times logoNew York Times, How Free Speech Is Being Used as a Weapon by Conservatives, Adam Liptak, June 30, 2018. Borrowing arguments that were once the province of liberals, conservatives have used the First Amendment to justify things like campaign spending and attacks on regulating tobacco and guns. As a result, many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

June 29

SCOTUSblog, Analysis: Justice Kennedy: A justice who changed his mind, Daniel Hemel, June 29, 2018. Daniel Hemel is an assistant professor of law at the University of Chicago Law School. Justice Anthony Kennedy’s majority opinion in the online-sales-tax case South Dakota v. Wayfair was his final — and most significant — decision involving the dormant commerce clause doctrine, which prohibits state and local governments from passing laws that discriminate against or unduly burden interstate commerce unless Congress consents. 

Wayfair, in which the majority overturned decades-old precedents that had prohibited states from collecting sales taxes on their residents’ transactions with out-of-state online and mail-order retailers, was a rare dormant commerce clause case in which Kennedy cast a decisive vote on the states’ side.

washington post logoWashington Post, Supreme Court prospect has said presidents should not be distracted by legal inquiries, Michael Kranish and Ann E. Marimow​, June 29, 2018. Brett M. Kavanaugh worked on the independent counsel’s team that investigated Bill Clinton, and his views could be a focus of his confirmation hearing if President Trump nominates him to replace Justice Anthony M. Kennedy.

U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who is viewed as one of the leading contenders to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.

Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team and then served for five years as a close aide to President George W. Bush.

Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”

ny times logoNew York Times, Washington Girds for Battle Over Kennedy’s Replacement, Michael D. Shear and Thomas Kaplan, June 29, 2018 (print edition). A political war over replacing Justice Anthony M. Kennedy roared to life on Thursday in Washington, the start of an election-season clash over a Supreme Court retirement that will reshape the country’s judicial future.

us supreme court 2017Hours after Justice Kennedy’s announcement on Wednesday that he will step down July 31, conservative organizations were mobilizing to support the Republican-controlled Senate in a quick confirmation of a justice who would be expected to vote against the court’s liberal precedents. One group, the Judicial Crisis Network, has already started a $1 million ad campaign urging people to support the president’s choice.

Democrats and liberal advocacy organizations face enormous challenges if they hope to prevent President Trump and the Republicans from installing a conservative justice who would shift the ideological balance of the court for generations. Mr. Trump has promised to pick from a list of highly conservative jurists, and Republicans control the Senate, which can confirm the president’s choice by a simple majority.

ny times logoadam liptakNew York Times, Inside the White House’s Quiet Campaign to Create a Supreme Court Opening, Adam Liptak (shown at right) and Maggie Haberman, June 29, 2018 (print edition). President Trump singled him out for praise even while attacking other members of the Supreme Court. The White House nominated people close to him to important judicial posts. And members of the Trump family forged personal connections.

Their goal was to assure Justice Anthony M. Kennedy that his judicial legacy would be in good hands should he step down at the end of the court’s term that ended this week, as he was rumored to be considering. Allies of the White House were more blunt, warning the 81-year-old justice that time was of the essence. There was no telling, they said, what would happen if Democrats gained control of the Senate after the November elections and had the power to block the president’s choice as his successor.

There were no direct efforts to pressure or lobby Justice Kennedy to announce his resignation on Wednesday, and it was hardly the first time a president had done his best to create a court opening. “In the past half-century, presidents have repeatedly been dying to take advantage of timely vacancies,” said Laura Kalman, a historian at the University of California, Santa Barbara.

But in subtle and not so subtle ways, the White House waged a quiet campaign to ensure that Mr. Trump had a second opportunity in his administration’s first 18 months to fulfill one of his most important campaign promises to his conservative followers — that he would change the complexion and direction of the Supreme Court.

washington post logojohn roberts oWashington Post, Roberts gets another key role on Supreme Court: Swing vote, Robert Barnes, June 29, 2018 (print edition). Chief Justice John G. Roberts Jr. has been content to move the Supreme Court to the right with small steps. But now, with more conservative colleagues on one side and liberals on the other, he can supply the deciding fifth vote and dictate the terms of the deal.

With Roberts as the median justice, one of the most conservative Supreme Courts in history will almost surely move further to the right. And if the chief justice’s past is prologue, that could mean more restrictions on abortion rights, affirmative action contained or ended, gay rights more closely scrutinized, and states freer to alter voting laws and redistricting without judicial oversight.

washington post logoSusan CollinsWashington Post, ‘Everyone is focused on Lisa and Susan’: Two senators stand out in fight to replace Kennedy, Seung Min Kim, June 29, 2018 (print edition). The Democrats’ hopes for defeating the president’s next Supreme Court pick will probably rest on GOP Sens. Susan Collins of Maine (shown at left) and Lisa Murkowski of Alaska.

washington post logoWashington Post, Opinion: Trump lucks out at the best possible time, Michael Gerson, June 29, 2018 (print edition). For Trump, the retirement of Anthony M. Kennedy (shown at right) could not be better timed. Replacing the Supreme Court’s most prominent swing vote combines every culture war anthony kennedy obattle into a single, all-consuming conflagration. And when hatred is at its height, and civility and comity completely break down, and Americans are at each other’s throats, Trump is in his element.

The result of a Roberts-dominated court, over time, would probably be the weakening of Roe’s pro-choice absolutism. This would allow states more latitude to make incremental restrictions. But before Roe, many states were already moving in a pro-choice direction. And the availability of abortion has become a deeply entrenched social expectation. A democratically determined outcome in most places would probably involve very few restrictions on early abortions, when a fetus is nearer to being a blastocyst, and greater restrictions on late-term abortions, when a fetus is nearer to being a newborn.

If, for example, Trump is wise enough to nominate federal appeals court judge Brett Kavanaugh to the Supreme Court, he will do more than rally his base. Nearly every veteran of the George W. Bush administration will lend their enthusiastic support. Unless Trump blows this nomination with a foolish, impulsive pick (not impossible), he will enter the midterms with a cause that excites his base and unites his party.

stephanie ruhleMSNBC, Justin Kennedy and Deutsche Bank Trump Loans, Part I and Part II, Stephanie Ruhle (shown at right in a file photo), June 29, 2018. "I worked I worked with Justin Kennedy," Ruhle wrote on Twitter. "I read the stories -- reached out to some former colleagues for their reaction. Here’s some broader context/perspective -- Neither of which fit in 240 characters."

June 28

SCOTUSblog, Analysis: Justice Kennedy: The linchpin of the transformation of civil rights for the LGBTQ community, Paul Smith, June 28, 2018. Paul Smith is the vice president of Litigation and Strategy at the Campaign Legal Center. He successfully argued in Lawrence v. Texas for the Supreme Court to overrule "Bowers v. Hardwick."

The jurisprudence that Justice Anthony Kennedy developed over three decades on the Supreme Court is nigh-impossible to pigeonhole ideologically. But one thing is crystal clear. He was personally and deeply committed to the proposition that gay and lesbian Americans deserve full equality.

He was the author of the four most important decisions of the Supreme Court moving the country in that direction — Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and of course Obergefell v. Hodges (2015), which mandated that all states provide full access to marriage for same-sex couples.

In the first two of those cases, he found an ally in Justice Sandra Day O’Connor, and the court struck down state laws that discriminated against gay people by a margin of 6-3. With O’Connor’s departure, Kennedy was the deciding vote in Windsor and Obergefell. Without Kennedy on the court in recent years, we would still be living in a country in which many states refused to grant marriage rights to gay couples.

washington post logojonathan turleyWashington Post, Kennedy’s decisions may not last. It might be his own fault, Jonathan Turley (right), June 28, 2018. For 30 years, one voice has rallied Supreme Court justices on the left and the right : that of Associate Justice Anthony Kennedy.

Liberals rejoiced in his decisions barring the execution of minors, recognizing a constitutional right to same-sex marriage, defending free speech and protecting legal abortions. Conservatives revered iconic decisions like Citizens United (protecting the rights of corporate speech) and Gonzales v. Carhart (upholding a federal law that criminalizes partial-birth abortions).

Kennedy’s jurisprudence reflected a unique mix of libertarian and natural-rights elements. To him, the Constitution may not have been the “living” document embraced by his liberal colleagues, but it evolved in its application to new forms of expression and association. That evolution often meant discarding prior doctrines and the time-honored judicial norm of stare decisis — the notion that courts should “stand by things decided.” Absent significant changes in the underlying law or conditions, courts avoid overturning precedent in the interests of institutional consistency and integrity. Kennedy’s cases should rest comfortably within that cocoon of tradition. Indeed, at one time, Kennedy insisted that “the whole object of the judiciary is to ensure stability, continuity, and so we pride ourselves on the fact that there is little change.”

But contained in his long tenure, and in many of his most historic cases, is an occasional disdain for precedent; his most important rulings were built on the ashes of prior decisions. In Lawrence v. Texas, for example, Kennedy tossed out the nearly two-decade-old ruling in Bowers v. Hardwick, citing changes in legal and social views. “Bowers was not correct when it was decided, and it is not correct today,” he wrote. “It ought not to remain binding precedent.”

In June, he advanced his attack on stare decisis even further, authoring a 5-to-4 decision that cavalierly dispensed with a major 1992 tax precedent. Then he signed onto a majority opinion this past week overturning an important 1977 case about union dues.

washington post logoWashington Post, Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common, Sarah Turberville and Anthony Marcum, June 28, 2018. Splits get all the attention, but consensus is the rule, and that's how it should be.

Justice Anthony M. Kennedy’s announcement Wednesday that he would be retiring from the Supreme Court led to justifiable hand-wringing about his crucial role as the swing vote in 5-to-4 decisions. But while 5-to-4 decisions — including the Tuesday blockbuster upholding President Trump’s travel ban — draw deserved attention, they obscure an important truth: The court values consensus, and justices agree far more often than they disagree.

The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

And the court’s commitment to consensus does not appear to be slowing. In the 2016-17 term, 57 percent of decisions were unanimous, and judgments with slim majorities (5 to 3 or 5 to 4) accounted for 14 percent. This term shows a similar trend. Surprisingly firm majorities issued some of the most anticipated decisions.

In Masterpiece Cakeshop — the case concerning a baker’s refusal to bake a wedding cake for a same-sex couple — the court issued a rather narrow ruling on the substance, but it drew seven of the nine justices’ votes. In Gill v. Whitford, the court unanimously agreed that a group of Wisconsin voters did not have standing to challenge their state’s legislative map, and seven justices concurred that the voters could take their case back to district court and try again.

C-SPAN, Supreme Court Term Review: American Constitution Society, June 28, 2018 (100:21 mins). The American Constitution Society hosted a panel of legal experts to review the Supreme Court decisions of the 2017 term. The panelists also talked about the retirement of Justice Anthony Kennedy, the president’s future nominee and what it will do to the balance of the bench.

People in this video:

Caroline Fredrickson President, American Constitution Society for Law and Policy

Thomas C. Goldstein Co-Founder and Publisher SCOTUSblog

Richard L. Hasen Professor, University of California, Irvine->School of Law

Lenese Herbert Professor Howard University School of Law

Ria Mar Senior Staff Attorney, American Civil Liberties Union->LGBT and HIV Project

Benjamin Sachs Assistant General Counsel (Former), Service Employees International Union

Ilya Shapiro Senior Fellow, Cato Institute Constitutional Studies

Shoba S. Wadhia Professor, Pennsylvania State University School of Law (University Park, PA)

SCOTUSblog, Potential nominee profile: Brett Kavanaugh, Edith Roberts, June 28, 2018. When then-candidate Donald Trump released his first two lists of potential Supreme Court nominees in May and September of 2016, the omission of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit drew comment. Kavanaugh had served for 10 years on a bench known as a springboard to the Supreme Court. With his impeccable academic credentials and sterling reputation in conservative political and legal circles, he seemed like an obvious choice. And his name was eventually added to the roster of possible nominees, on November 17, 2017.

No one else on the president’s current list can rival Kavanaugh for Washington credentials. He was even born in Washington, where his mother was a public-school teacher, on February 12, 1965. After graduating from Yale College in 1987 and Yale Law School in 1990, Kavanaugh spent two years as a law clerk, for Judge Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. He followed a one-year fellowship in the office of U.S. Solicitor General Kenneth Starr with a clerkship for Justice Anthony Kennedy during October Term 1993.

Kavanaugh went on to join Starr at the Office of the Independent Counsel, where Kavanaugh led the investigation into the death of Vince Foster, an aide to President Bill Clinton, and helped write the 1998 Starr Report to Congress, which outlined 11 grounds for Clinton’s impeachment. Kavanaugh was later a partner at the law firm Kirkland & Ellis, where he specialized in appellate law. He moved to the White House after President George W. Bush was elected and worked in the West Wing for five years, first as a counsel to the president and then as staff secretary to the president.Bush first nominated Kavanaugh to the D.C. Circuit on July 25, 2003, but the nomination was stalled in the Senate for nearly three years, with Democratic senators charging that Kavanaugh’s government track record revealed him to be overly partisan.

During Kavanaugh’s second confirmation hearing, in May 2006, Sen. Chuck Schumer (D-N.Y.) observed, “From the notorious Starr report, to the Florida recount, to the President’s secrecy and privilege claims, to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.” Despite similar objections from other Democratic senators, Kavanaugh was eventually confirmed by the Senate on May 26, 2006, by a vote of 57-36.

June 27

  • Immigration: Trump v. Hawaii, decided 5-4 * on June 26, 2018.

washington post logoWashington Post, Travel-ban ruling could embolden Trump on immigration, David Nakamura​, ​June 27, 2018 (print edition). The Supreme Court's 5-4 decision upholding President Trump's authority to ban travelers from certain majority-Muslim countries could spur Trump to increase efforts to transform his campaign-trail warnings of the threats posed by foreigners who attempt to enter the U.S. into official policy.

washington post logoWashington Post, Many religious liberty groups silent on decision, Michelle Boorstein​, ​June 27, 2018 (print edition). Many prominent legal and advocacy groups focused on religious liberty put out no statements about the travel-ban ruling, despite the arguments raised in the case about religious discrimination.

neil gorsuch louise donald trump jan 31 2017

President Trump announces nomination of U.S. Circuit Judge Neil Gorsuch to the Supreme Court in January 2017 as the latter's wife Louise looks on

  • Wedding Cake for Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

ny times logoNew York Times, G.O.P. Blockade of Obama Nominee Pays Off in Rulings, Elizabeth Dias and Sydney Ember, June 27, 2018 (print edition). The consequences of President Trump’s nomination of Neil M. Gorsuch to the Supreme Court — and the Republican blockade of President Barack Obama’s nomination of Merrick B. Garland (shown at left below) in 2016 for that seat — became powerfully clear on Tuesday after the court’s conservative majority handed down major decisions to uphold Mr. Trump’s travel ban and in favor of abortion rights opponents.

merrick garlandSocial conservatives cheered the court’s ruling that a California law requiring “crisis pregnancy centers” to provide abortion information likely violates the First Amendment. Some conservatives also viewed the ruling — their latest win to advance their anti-abortion cause since Mr. Trump has taken office — as another opportunity to energize their base ahead of the November elections.

neil gorsuch kissinger quote yearbookGorsuch had long espoused right-wing views, as indicated in a yearbook page in which he cited former Secretary of State Henry Kissinger's flip praise for "unconstitutional" actions.

The travel ban decision drew more conflicting reactions from conservative voters and religious groups, with some criticizing it as anti-immigrant. Several groups supporting immigrants deemed the travel ban decision “shameful” and “hateful.” And many Democratic leaders denounced both rulings.

What many partisans on both sides agreed on, though, was that Justice Gorsuch — who voted with the 5-to-4 majorities in both cases — was an especially key figure in Tuesday’s decisions, because he wouldn’t have been on the court if Mr. Obama had been successful with the original nomination of Judge Garland.

  • Union Rights: Janus v. American Federation of State, County and Municipal Employees Council 31, decided 5-4 on June 27, 2018. *

ny times logoNew York Times, Analysis: Unions May Become Smaller and Poorer, but Not Weaker, Noam Scheiber, June 27, 2018. The ruling could cost public-sector unions more than a million members. But the ones who stay could make labor more powerful. With the Supreme Court striking down laws that require government workers to pay union fees, one thing is clear: Most public-sector unions in more than 20 states with such laws are going to get smaller and poorer in the coming years.

Though it is difficult to predict with precision, experts and union officials say they could lose 10 percent to one-third of their members, or more, in the states affected, as conservative groups seek to persuade workers to drop out.

The court’s decision is the latest evidence that moves to weaken unions are exacting a major toll. Beyond the dropout campaigns aimed at members, conservatives have also backed state legislation making it harder for unions to operate — like requiring authorization to deduct part or all of workers’ dues from their paychecks — and are bringing lawsuits to retroactively recover fees collected by unions from nonmembers.

In the five years after Michigan passed a law ending mandatory union fees in 2012, the number of active members of the Michigan Education Association dropped by about 25 percent, according to government filings, a much faster attrition rate than before. Its annual receipts fell by more than 10 percent, adjusting for inflation.

Still, the more interesting question is whether the unions, whatever the blow to their ranks and finances, will be substantially weaker. 

  • Water Rights: Florida v. Georgia, decided 5-4 on June 27, 2018.

USA Today, Supreme Court sides with Florida in decades-long dispute with Georgia over water rights, Ledyard King, June 27, 2018.  The Supreme Court Wednesday handed Florida an unlikely victory in its decades-long fight with Georgia over water rights, ruling a court-appointed special master was "too strict" in determining that no remedy in the court's power would boost water flow into the Apalachicola River and help the region's beleaguered oyster industry.

The 5-4 decision remands the case, known officially as Florida v. Georgia, back to Special Master Ralph Lancaster Jr., who sided with Georgia in a decision issued last year that Florida later appealed to the nation's highest court.

Lancaster found that Florida had suffered harm from the decreased water flow in the Apalachicola-Chattahoochee-Flint River basin but had not proven that limiting the amount of water Georgia consumed would provide the relief it sought. That was largely because the U.S. Army Corps of Engineers, the agency in charge of federal water projects, is not a party to the lawsuit.

But the justices Wednesday said Florida made a "sufficient showing" to both the special master and the high court itself that capping consumption by Georgia would provide a direct benefit to Apalachicola Bay.

June 25

  • Gerrymandering; Abbott v. Perez decided 5-4 on June 25, 2018 * and Gill v. Whitford, decided 7-2 on June 18, 2018 (two justices dissenting in part).

washington post logoWashington Post, Supreme Court largely upholds maps in Texas case on racial gerrymandering, Robert Barnes, June 25, 2018. A lower court ruled last summer that the Texas congressional and legislative districts discriminated against black and Hispanic voters. But justices said the panel was wrong in how it considered the challenges.

samuel alitoThe Supreme Court on Monday largely upheld Texas congressional and legislative maps that a lower court said discriminated against black and Hispanic voters. The lower court was wrong in how it considered the challenges, Justice Samuel A. Alito Jr. [right, part of the court's Republican-nominated 5-4 majority] wrote in the 5 to 4 decision. The majority sided with the challengers over one legislative district.

Justice Sonia Sotomayor wrote a dissent that was longer than Alito’s majority decision. She said the decision “does great damage to the right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement.”

Alito was joined in the outcome by the court’s most consistent conservatives — Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch.

 washington post logoWashington Post, Supreme Court sends case on North Carolina gerrymandering back to lower court, Robert Barnes​, June 25, 2018. The case centered on whether Republicans drew the state’s congressional districts to give the party an unfair advantage. Justices said a lower court must decide whether the plaintiffs had the proper legal standing to bring the case.

us supreme court 2017North Carolina’s Republican-led legislature has implemented a map under which Republicans hold 10 of the 13 congressional seats. The GOP’s domination of the congressional delegation belies North Carolina’s recent history as a battleground state. It has a Democratic governor and attorney general, who have declined to defend the maps.

washington post logoWashington Post, Opinion: Rigged Supreme Court upholds rigged electoral maps, Paul Waldman, June 25, 2018. The Republican majority on the Supreme Court just delivered another victory to the broad and deep GOP effort to make sure that American elections are rigged in conservatives’ favor.

SCOTUSblog, Analysis: Texas scores near-complete victory on redistricting, Amy Howe, June 25, 2018. This morning the Supreme Court ruled in favor of Texas in a dispute alleging that the state’s lawmakers had drawn redistricting maps to discriminate against some of the state’s black and Hispanic residents. By a vote of 5-4, the justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

The decision came in the two cases known as Abbott v. Perez, which date back to 2011, when Texas’ Republican-controlled legislature began to redistrict after the 2010 census.

The legislature’s federal congressional and state legislative maps never took effect, because a three-judge district court (which normally hears redistricting cases) barred the state from using the maps and created its own plans instead. But the U.S. Supreme Court threw out the court-created maps in 2012, telling the lower court to use the state legislature’s maps as a “starting point” for new maps. The district court did so, and in 2013 the state legislature adopted the maps for permanent use.

  • Wedding Cake for Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

The Hill, Supreme Court throws out case against florist who refused to do arrangement for gay wedding, Lydia Wheeler, June 25, 2018. The Supreme Court on Monday threw out a lower court ruling which found a Washington florist had intentionally discriminated against a same-sex couple for refusing to make flower arrangements for their wedding.

June 22

  • Privacy: Carpenter v. U.S., decided 5-4 on June 22, 2018.

washington post logous supreme court 2017Washington Post, Supreme Court rules that warrant is generally needed to access cell tower records. Robert Barnes, June 22, 2018. The case is seen as an important moment in determining the government’s ability to access to the ever-increasing amount of private information about Americans available in the digital age.

The Supreme Court on Friday put new restraints on law enforcement’s access to the ever-increasing amount of private information about Americans available in the digital age.

In the specific case before the court, the justices ruled that authorities generally must obtain a warrant to gain access to cell-tower records that can provide a virtual timeline and map of a person’s whereabouts. Chief Justice John G. Roberts Jr. wrote the 5 to 4 decision, in which he was joined by the court’s liberal members. Each of the dissenting conservatives wrote separate opinions.

Roberts said the decision was a narrow one and a cautious approach to providing constitutional protections against unlawful searches and seizures to evolving technology.

The justices ruled for Timothy Carpenter, who is serving a 116-year sentence for his role in armed robberies in 2010 and 2011 at RadioShack and T-Mobile stores in and around Detroit. He was accused of being the ringleader of a gang stealing smartphones. One of the men arrested said Carpenter typically organized the robberies, supplied the guns and acted as a lookout. Authorities asked his cellphone carrier for 127 days of records that would show Carpenter’s use of his phone.

Such records indicate where a cellphone establishes connections with a specific cell tower and give a fair representation of the vicinity of the user. In Carpenter’s case, the mass of information showed his phone at 12,898 locations, including close to where the robberies occurred when they took place.

Carpenter’s attorneys said that the government’s actions violated their client’s rights under the Fourth Amendment, which protects against unreasonable searches. Authorities should have had to convince a judge that there was probable cause to get the records, they said.

“This is a groundbreaking victory for Americans’ privacy rights in the digital age,” said ACLU attorney Nathan Freed Wessler, who argued on Carpenter’s behalf before the court in November. “The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life.”

June 21

us supreme court 2017

The 2017 U.S. Supreme Court, with Republican anti-union activist and Associate Justice Samuel Alito shown in the top row, second from the left.

ny times logoNew York Times, Opinion: A Question of Legitimacy Looms for the Supreme Court, Linda Greenhouse, June 21, 2018. Linda Greenhouse, shown at linda greenhouse cover just a journalistright on the cover of her recent memoir, is a Yale Law School graduate who covered the Supreme Court for many years for the New York Times.

Any day now, perhaps as soon as Thursday, the Supreme Court will issue a decision that more than any other case this term will reveal to us the heart and soul of the Roberts Court at the end of Chief Justice John G. Roberts Jr.’s 14th year.

The case is Janus v. American Federation of State, County and Municipal Employees. It presents the question of whether the court will adhere to its 41-year-old precedent under which states can require public employees who object to joining a union to nonetheless pay their fair share of the union’s costs of the collective bargaining from which all employees benefit.

The basic argument in Janus is that the First Amendment should be interpreted to shield workers who don’t like their union from having to associate with it or lend support to its activities.

The Supreme Court rejected that argument in 1977 when it decided Abood v. Detroit Board of Education, and it has rejected analogous arguments in other compulsory-fee situations, including state bar dues for lawyers and mandatory student association fees on public campuses. The underlying argument in support of these mandatory fees is the greater common good; the specific rationale in the labor context is that the presence of free riders, who enjoy the benefits of having a union while refusing to pay for the bargaining efforts that won them, is a threat to peace in the workplace.

The path of the Janus case to the Supreme Court exemplifies the politics of the issue. The case was initially filed in 2015 in Federal District Court in Illinois not by an Illinois public employee but by the newly elected Republican governor, Bruce Rauner. He is a former private equity executive with a personal fortune of $500 million who spent millions on a campaign in which opposition to organized labor played a substantial part.

So is it possible that just as the Supreme Court is about to take a hammer to the teachers’ unions, teachers are back in favor? A Supreme Court decision, needless to say, is not a popularity contest, nor should it be. At the same time, the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote.

  • State Taxes On Internet Sales: South Dakota v. Wayfair, Inc., decided 5-4 on June 21, 2018.

ny times logoNew York Times, Court Clears Way for Sales Taxes on Internet Merchants, Adam Liptak, June 21, 2018. Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court said. States have said that they were missing out on tens of billions of dollars in revenue under a 1992 ruling that helped spur the rise of internet shopping.

us supreme court 2017Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court ruled on Thursday. Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping.

On Thursday, the court overruled that ruling, Quill Corporation v. North Dakota, which had said that the Constitution bars states from requiring businesses to collect sales taxes unless they have a substantial connection to the state.

amazon logo smallShares in Amazon were down just 1 percent in morning trading after the ruling, at $1,731.59. But other e-commerce companies suffered far tougher blows: Shares in Etsy, the marketplace for artisanal crafts, fell 4.5 percent, to $42.21, while those in Wayfair, a popular home goods seller, were down 3.2 percent, at $112.42.

  • Immigration: Pereira v. Sessions decided 8-1 on June 21, 2018

WBUR-FM (Boston), http://www.wbur.org/news/2018/06/21/marthas-vineyard-immigrant-supreme-court" target="_blank" rel="noopener">Supreme Court Rules In Favor Of Martha's Vineyard Man In Immigration Case, Shannon Dooling, June 21, 2018. The U.S. Supreme Court decided Thursday in favor of a Martha's Vineyard man in an immigration case that has the potential to affect thousands of other immigrants living in the country without authorization.

In the 8-1 opinion, the court decided that if an unauthorized immigrant's "notice to appear" in immigration court doesn't designate the specific time or place of the non-citizen's removal proceedings, then it's not a "notice to appear" and it doesn't stop the clock on the non-citizen's "continuous physical presence" in the U.S.

Here's why that matters: If you're an immigrant living in the country without authorization, a clock starts ticking the moment you enter the U.S. If your clock — your time in the country — hits 10 years, then under certain circumstances, you could be eligible to apply for what's called a 10-year cancellation of removal. The government, however, says once a "notice to appear" is issued, it triggers a so-called "stop-time" rule and this clock no longer accrues more time.

Wescley Pereira, a native of Brazil, is the man at the heart of the SCOTUS case, Pereira v. Sessions. Pereira overstayed his visa and has been living and working on Martha's Vineyard for 16 years.

June 11

supreme court building

  • Voting Rights: Husted v. A. Philip Randolph Institute, decided 5-4 on June 11, 2018. *

ny times logoadam liptakNew York Times, Supreme Court Upholds Ohio’s Aggressive Purge of Voting Rolls, Adam Liptak (right), June 11, 2018. In a major voting rights case, the court ruled that a state may kick people off the rolls if they skip a few elections and fail to respond to a notice from state election officials. The vote was 5 to 4, with the more conservative justices in the majority.

new yorker logoNew Yorker, The Supreme Court’s Husted Decision Will Make It More Difficult for Democrats to Vote, Jeffrey Toobin, June 11, 2018. Major Supreme Court opinions exercise a kind of hydraulic effect on the future of the law. The results in the individual case matter, of course, but the greater significance comes from the signals that the Justices send about what they will allow in the future.

That’s why Monday’s decision in Husted v. A. Philip Randolph Institute matters so much. By a vote of 5–4, the Justices upheld Ohio’s purge of less-frequent voters from its rolls. That ruling is bad enough on its own terms, but what makes Justice Samuel Alito’s opinion so chilling is the way that it invites other states to continue and to expand this anti-democratic practice.

It’s often possible to read thousands of words in a Supreme Court opinion and be lulled by the legalese into missing what’s really at stake in the case. This is especially true of Alito’s opinion in Husted and even, to an extent, of Justice Stephen Breyer’s dissent, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. As described by both these opinions, the case was essentially just a matter of statutory interpretation, in this instance, of the National Voter Registration Act, better known as “Motor Voter Act,” which passed in 1993.

That law was intended to make it easier for people to register to vote, but it included a provision to keep voter rolls accurate, which requires states to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change of residence. In Alito’s bland phrasing, the Husted case concerns a challenge to “an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved.” Ohio sends a postcard to those who haven’t voted in two years. If they return it, they stay on the rolls; if they don’t, and don’t vote in the next two elections, they are removed.

With the facts in the case phrased in this way, one might reasonably ask, who cares? Isn’t this just a dispute over bureaucratic record-keeping? That’s pretty much how Alito’s opinion describes it.

But Alito’s anodyne recitation seems to intentionally avoid the partisan heart of the dispute. Since Republicans took control of many major states, including Ohio, in the G.O.P. landslides of 2010, one of their principal objectives has been to lock in their electoral advantage through the manipulation of election law.

Specifically, the dominant Republicans in these states have tried in a variety of ways to make it more difficult for poor people and minorities and the young (all overwhelmingly Democratic groups) to vote. In most of the relevant states, again including Ohio, this has included establishing strict I.D. requirements at the polls, and limiting early and absentee voting.

But the most pernicious attempt has been the one at issue in the Husted case: the purging of eligible voters. As the Republican lawmakers in Ohio well know, Democrats tend to vote more sporadically than Republicans, often sitting out midterm elections. For a variety of reasons associated with their socioeconomic circumstances, Democrats may encounter difficulties in record keeping and may miss postcard reminders to re-register.

This law, in other words, is a cynical device to remove Democrats from the voting rolls. That’s a feature of the law, not a bug. (Even worse, for voting-rights advocates, tracking the effects of voter purges, which target individual citizens, is a much more difficult and painstaking process than identifying the results of voter-I.D. or early-voting laws.)

In a separate dissenting opinion, Sotomayor pierces the artifice underlying the case. Displaying a bracing familiarity with the real world, Sotomayor notes that “low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal.” Not surprisingly, then, she observes that Ohio’s purge “has disproportionately affected minority, low-income, disabled, and veteran voters.” Again, feature, not bug.

What makes the Ohio law especially odious is that it’s a cure for which there is no disease. Some people don’t vote in off-year elections, or in every Presidential-election year. That’s no indication of voter fraud, nor a reason to punish them with disenfranchisement. But that’s what this law does; indeed, that’s the whole point of it.jon husted o

According to Jon Husted, the Republican (shown at right) who is Ohio’s secretary of state, “Today’s decision is a victory for election integrity. This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing nation’s highest court, it can serve as a model for other states to use.” In this, he’s right. Lawmakers in Republican-controlled states will see the Husted decision as an invitation, hydraulic in its force, to launch even more invasive purges of disfavored voters. It’s an invitation that many are likely to accept.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.

  • Arbitration: Epic Systems Corp. v. Lewis, decided 5-4 on May 21, 2018. *

The Atlantic, An Epic Supreme Court Decision on Employment, Garrett Epps, May 22, 2018.  The 5-4 ruling in Epic Systems Corp. v. Lewis could weaken workplace protections—and the justices on both sides knew it.

False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of any lawyer or judge, no matter of what persuasion. These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)

The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to pursue even private arbitration in common with other employees making the same claim? Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary systems.

Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is "American Justice 2014: Nine Clashing Visions on the Supreme Court."

  • Sports Gambling: Murphy, v. NCAA decided 7-2 on May 14, 2018 (with Justice Breyer dissenting in part).

SCOTUSblog, Analysis: Justices strike down federal sports gambling law, Amy Howe, May 14, 2018. The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies.

Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.

The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the state did so within a year. But it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.