Friday round-up

By on Mar 11, 2016 at 7:10 am

In The Washington Post, Amber Phillips reports on a new poll indicating that “a sizable majority of Americans — including a strong contingent of independents — think the Senate should at least hold hearings on President Obama’s nominee to the Supreme Court.”  Julian Fabian of The Hill reports that “Obama is expected to put forward a nominee any day.”  In an op-ed for The Washington Post, Judge Richard Posner contends that “the significance of the Senate’s action” in declining to consider a nominees “lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court.”  The editorial boards of The New York Times and The Anniston Star also weigh in, while at E&E Publishing, Robin Bravender looks back at failed judicial nominees. Continue reading »

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Petition of the day

By on Mar 10, 2016 at 11:00 pm

The petition of the day is:

15-1063

Issue: Whether a warrantless blood draw conducted pursuant to the implied consent / mandatory draw provisions in the Texas Transportation Code from an individual arrested for his third DWI, violates the Fourth Amendment.

 
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The current vacancy on the Supreme Court has generated considerable discussion about the history of Supreme Court nominations – including from Michael Gerhardt for this blog. One oft-cited chapter in this history is President Lyndon Johnson’s unsuccessful 1968 nomination of Justice Abe Fortas to replace Earl Warren, who had announced his intent to retire from his position as the Chief Justice. Today’s political and judicial situation makes for perfect timing for a recent article by Robert David Johnson in the Journal of Supreme Court History: “Lyndon B. Johnson and the Fortas Nomination.” Johnson’s article is one of the first to use the tapes of Lyndon Johnson’s 1968 conversations and telephone calls. Johnson also is the first scholar studying the Fortas confirmation to use the papers of some of the senators who played key roles in the battle, including Fortas’s “most prominent opponents,” Senator Robert Griffin (R-Michigan) and Senator Strom Thurmond (R-South Carolina).

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Thursday round-up

By on Mar 10, 2016 at 6:54 am

Commentary on Monday’s summary reversal in V.L. v. E.L., in which the Justices ruled that states must recognize an adoption by a same-sex parent that occurred in another state, comes from Jane Schacter, who at Stanford’s Legal Aggregate argues that the decision “creates important protection for families with LGBT parents”; and from Gregory Lipper, who at Protect Thy Neighbor contends that, although “the Alabama Supreme Court got its comeuppance, it’s easy to overlook the human costs of the Alabama court’s ongoing attempts to thwart the marital and parental rights of same-sex couples.”
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Ruling that the Constitution’s Fourteenth Amendment does not apply to Puerto Rico, a federal trial judge in San Juan has refused to strike down that commonwealth’s ban on same-sex marriage.  The Supreme Court’s decision last June in Obergefell v. Hodges was based on that amendment alone, and a series of century-old Supreme Court rulings put the island outside of that provision, U.S. District Judge Juan M. Perez-Gimenez declared in a ten-page opinion released on Tuesday.

That decision put the judge in direct conflict with a ruling by the U.S. Court of Appeals for the First Circuit last July 8 saying that the Puerto Rico’s ban is unconstitutional under Obergefell.  The First Circuit had been urged by both sides in that case — same-sex couples on one side and the governor and other commonwealth officials on the other side — to nullify the ban.

The First Circuit said it was wiping out a decision by Judge Perez-Gimenez last October, upholding the ban, but for  different reasons than he used on Tuesday after the case had been sent back to him by the First Circuit.

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Michael Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina at Chapel Hill, Scholar-in-Residence at the National Constitution Center, and Visiting Scholar at the University of Pennsylvania Law School. He served as Special Counsel to Chairman Patrick Leahy and the Senate Judiciary Committee for the nominations of Justices Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court.

One hundred years from now, people will look back upon the year 2016 in wonder. 2016 was the eighth and final year of the presidency of Barack Obama, the first African American elected to the nation’s highest office. 2016 was the year of a presidential election, possibly destined to be historic with the election as president of either the first woman or the first person to come directly from the world of business and with no prior experience in public office. 2016 was the year in which, in mid-February, Justice Antonin Scalia, the Court’s most passionate conservative, died, just shy of completing his thirtieth year on the high Court. It was also the year in which the Senate leadership declared, days after Scalia’s passing, that, because it was a presidential election year, the American people should make the choice about what kind of Justice should next be appointed to the Court and the Senate was not therefore going to consider any nominations the president made to fill the Court’s pending vacancy. That threatened intransigence held the prospects that any nomination made by the president was dead upon arrival, no matter how strong or good, and that the Court would likely continue to have only eight, rather than its full complement of nine, Justices for the foreseeable future. Whatever happens, the American people will undoubtedly look back and ask why. Why did the Senate do what it did? What lessons did 2016 teach us about Supreme Court appointments? What kind of precedent did the Senate create? What principles guided the Senate? Will it be a precedent subsequent generations will want to follow or reject?

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Wednesday round-up

By on Mar 9, 2016 at 7:22 am

The battle over a possible successor to Justice Antonin Scalia continues to dominate the news.  Coverage comes from NPR’s Nina Totenberg, who reports that the president “has begun interviewing candidates” for the vacancy; and Catherine Ho of The Washington Post, who reports that “[s]eventeen major environmental groups are calling on Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Harry Reid (D-Nev.) to hold prompt confirmation hearings and a vote” on the eventual nominee.

Commentary comes from Howard Wasserman, who discusses the timing for a successor at PrawfsBlawg; from Kent Scheidegger, who criticizes the record of Judge Jane Kelly in capital cases at Crime and Consequences; and in an op-ed for USA Today, where Eric Wang argues that, although we “may not know for sure exactly what Scalia would have thought about the merits of the arguments now being made about who should appoint his successor,” “we do know what he would have thought about the robust debate.” Continue reading »

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Judge Raymond Lohier has flown under the radar in predictions about the next Justice. However, his Haitian heritage, reputation as a federal prosecutor, and unanimous confirmation to the Second Circuit suggest that he deserves a closer look.

Born in 1965, Lohier grew up just outside Philadelphia. He earned his undergraduate degree from Harvard, where he graduated cum laude and studied under liberal theorist John Rawls. He then studied law at New York University, where he was editor in chief of the Annual Survey of American Law. He clerked with Judge Robert Patterson on the U.S. District Court for the Southern District of New York.

Lohier began his career at Cleary, Gottlieb, Steen & Hamilton, working on commercial litigation and corporate law. During this time, he also took pro bono cases in labor law and workplace discrimination. In 1997, he moved to the Civil Rights Division of the US Department of Justice, where he focused on Title VII violations by public entities.

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This blog recently featured a series of posts from former law clerks of the late Justice Antonin Scalia. They glowingly portray a stimulating professional and personal experience. Christopher Landau remembers regular conferences in which clerks actively argued and engaged with Scalia, while Danielle Sassoon recalls Scalia’s annual reunion, for which the “centerpiece of the evening was a roast.” If only we all could clerk.

It wasn’t always that way. In 1905, Justice David Brewer dismissed the role of his sole clerk as “simply a typewriter, a fountain pen, used by the judge to facilitate his work.”

For the Journal of Supreme Court History, Clare Cushman reviews the practices and lives of clerks – with some choice anecdotes – before the institutionalization of the “modern” clerkship model in the 1940s (which some earlier Justices pioneered, including Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo).

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Tuesday round-up

By on Mar 8, 2016 at 7:16 am

Yesterday the Justices issued orders from their March 4 Conference.  Lyle Denniston covered the order list for this blog.  Other coverage of the summary reversal in V.L. v. E.L., in which the Justices ruled that states must recognize an adoption by a same-sex parent that occurred in another state, comes from David Savage of the Los Angeles Times, German Lopez of Vox, Richard Wolf of USA Today, Danielle Blevins of Talk Radio News, Samuel Lieberman of New York, Adam Liptak of The New York Times, Nolan McCaskill of Politico, and Chris Geidner of BuzzFeed.  Commentary comes from Ruthann Robson at Constitutional Law Prof Blog and Howard Wasserman at PrawfsBlawgContinue reading »

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