Judiciary

Kennedy Retirement Rumors Swirl Once Again

The Hill: “All eyes are on Justice Anthony Kennedy, 81, who reportedly considered calling it quits last spring. As the court’s current term winds to a close, speculation about his plans has again swept the capital, with court watchers searching for clues.”

“Those who say Kennedy is here to stay — at least for now — point to the fact that he’s already hired his law clerks for the next term, as Above the Law reported.”

Conservative Activists Behind Mystery $1 Million Gift

“One of the largest contributions to President Trump’s inaugural committee in 2016 appears to have been orchestrated by a set of powerful conservative legal activists who have since been put in the driver’s seat of the administration’s push to select and nominate federal judges,” McClatchy reports.

“The $1 million inaugural gift came from a Northern Virginia company called BH Group, LLC. Unlike other generous corporate inaugural donors, like Bank of America and Dow Chemical, though, BH Group was a cipher, and likely was set up solely to prevent disclosure of the actual donor’s name.”

“While the source of the money used to make the gift was masked from the public, a trail of clues puts the contribution at the doorstep of some of the same actors — most notably Leonard Leo, an executive vice president at the conservative Federalist Society — who have helped promote Trump’s mission, and that of his White House counsel, Don McGahn, to fill judicial vacancies as quickly as he can with staunchly conservative, preferably young jurists.”

Supreme Court Strikes Down Ban on Sports Betting

“The U.S. Supreme Court acted Monday to bust Nevada’s monopoly on legal sports betting, allowing more states to get in on the action and reap the tax benefits,” NBC News reports.

USA Today: “The justices ruled 7-2 that a 25-year-old federal law that has effectively prohibited sports betting outside Nevada cannot block states such as New Jersey that want to set up sports books. The ruling could set the stage for other states to expand legalized gambling as a source of government revenue.”

Oldest Appellate Vacancy Filled Over Objections of Senator

“Milwaukee lawyer Michael Brennan was confirmed for a key federal judgeship, filling the oldest appellate vacancy in the country but deepening a partisan schism in the U.S. Senate over judges,” the Milwaukee Journal-Sentinel reports.

“He was confirmed 49-46 with only Republican votes, over the objections of Democrat Tammy Baldwin, Wisconsin’s junior senator.”

“That has typically been enough to sink a nomination in recent years, because senators from both parties have enjoyed an effective veto over the selection of federal judges from their home states, a tradition known as the ‘blue slip.'”

“Baldwin’s GOP colleague from Wisconsin, Ron Johnson, used his blue slip power to block one of Democratic President Barack Obama’s nominees for the same 7th Circuit seat that his party filled Thursday.”

Grassley Tries to Nudge Justices Into Early Retirement

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) “encouraged Supreme Court justices flirting with retirement to immediately step down, saying he would like to push through a nominee before the midterm elections,” Politico reports.

Said Grassley: “I just hope that if there is going to be a nominee, I hope it’s now or within two or three weeks, because we’ve got to get this done before the election. So my message to any one of the nine Supreme Court justices, if you’re thinking about quitting this year, do it yesterday.”

An Open Letter to Anthony Kennedy

The New York Times editorial board writes to Supreme Court Justice Anthony Kennedy concerning rumors that he might soon retire:

How can we put this the right way? Please don’t go…

As Justice O’Connor would tell you, legacy isn’t only what you do when you’re on the court; it’s also the circumstances in which you leave it. To put it bluntly, did you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?

Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes? A president with so little regard for or understanding of the role of the judiciary, the separation of powers and the rule of law? A president who nominated to the federal bench someone who called you a “judicial prostitute”?

McConnell Cements Trump Legacy With Reshaped Courts

President Trump and Senate Majority Leader Mitch McConnell “are rapidly filling U.S. federal courts with young conservatives who will shape American law for generations to come,” Bloomberg reports.

“The Republican-led Senate confirmed Trump’s 15th appeals court nominee this week — more than the last five presidents at this juncture — with eight of the new judges in their 40s, and seven in their 50s. McConnell set the stage Thursday to confirm six more, one day after a committee voted to cut debate time, which if approved would further speed things up.”

Key Justices Seem Friendly to Travel Ban

“The Supreme Court appeared poised Wednesday to tune out President Trump’s inflammatory anti-Muslim statements on the campaign trail and uphold his executive order banning travel from seven primarily Muslim countries,” the Boston Globe reports.

“In an oral argument in the case Wednesday, Chief Justice John Roberts and Justice Anthony Kennedy, a key swing vote, seemed largely unmoved by the argument that Trump exceeded his authority with the ban, or that it unconstitutionally discriminates against Muslims. Instead, they appeared to favor the Trump administration’s argument that the ban is a legal exercise of the chief executive’s broad powers to protect the United States.”

McConnell Works to Reshape Courts In Case Senate Flips

“Mitch McConnell is making a last dash to stock the judiciary with conservatives this year as a hedge against the chance that Republicans lose the Senate in November,” Politico reports.

“The GOP may have only a few more months of unified control of Washington to repeal Obamacare or enact President Donald Trump’s infrastructure plan. But the Senate majority leader is taking a longer view — and confirming as many conservative judges as possible to lifetime appointments.”

Nominee Won’t Say If She Agrees with Landmark Decision

Wendy Vitter, one of President Trump’s judicial nominees, refused to say whether the landmark civil rights case Brown v. the Board of Education was correctly decided, CNN reports.

The seminal opinion held that state laws requiring separate but equal schools violated the Constitution.

Said Vitter: “I don’t mean to be coy but I think I can get into a difficult, difficult area when I start commenting on Supreme Court decisions — which are correctly decided and which I may disagree with.”

McConnell Says Judges Are His Biggest Accomplishment

Senate Majority Leader Mitch McConnell (R-KY) told Kentucky Today that the biggest accomplishment of his career is the rapid confirmations of conservative judges to every level of the federal judicial system, not passing a massive tax bill.

Said McConnell: “You’ve heard me say before that I thought the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve made in my entire public career. The things that will last the longest time, those are my top priorities.”

He added: “It’s noteworthy that when we did comprehensive tax reform 30 years ago, we left it alone for four years before the political winds shifted and we started playing with it again. Believe me, the next time the political winds shift, and the other guys are in the ascendancy (he snapped his fingers indicating a rewrite). But they won’t change these judges for a generation.”

Supreme Court Takes Another Look at Gerrymandering

NBC News: “For the second time this term, the U.S. Supreme Court considers a question that could change the nature of American politics: Is it unconstitutional for states to draw the boundary lines for voting districts in a blatantly partisan manner?”

“On Wednesday, the justices take up a challenge brought by Republicans in Maryland who say Democrats intentionally carved up a congressional district to get an electoral edge.”

Nina Totenberg: “The bottom line is it could be that optics are part of the reason the court added a second partisan gerrymandering case to its docket, so that in one case, the Republicans could prevail, and in the other, the Democrats could.”

GOP Senators Fuel Justice Kennedy Retirement Talk

“Senate Republicans are privately saying they hope Justice Kennedy announces his retirement in the coming months, before the fall midterm elections, arguing the move would give Republicans something to rally their base as they work to maintain control of the Senate,” The Hill reports.

“While Kennedy, 81, has not directly signaled his plans for retirement, at least one senator has predicted it could come over the summer. Others maintain that confirming a conservative successor to Kennedy, who was nominated by Ronald Reagan in 1988, would be easier while Republicans control the Senate.”

Supreme Court Could Cripple Unions Ahead of Midterms

“The Supreme Court will hear arguments Monday in a case that could shrink government unions and their campaign war chests by as much as two thirds, with potentially devastating consequences for the Democratic Party in a competitive election cycle,” Politico reports.

“The case, Janus v. AFSCME, challenges the money that public unions representing teachers, firefighters, nurses and other government employees collect from non-members to cover their share of collective bargaining costs. Democratic candidates and causes rely on these unions for more than $100 million in contributions every election cycle, and for armies of workers dispatched to staff phone banks and canvass neighborhoods across the country.”

Judge Refuses to Recuse Himself from Dossier Case

U.S. District Court Judge Trevor McFadden — who was appointed by President Trump, donated to his campaign and worked on his presidential transition team — has rejected requests to recuse himself from overseeing a legal battle involving Fusion GPS, the research firm that commissioned the so-called “dossier” of unverified intelligence that contains claims about Trump’s alleged ties to Russia, ABC News reports.