Judiciary

How Democrats Are Still Blocking Judge Appointments

New York Times: “Though the Senate has virtually eliminated the ability of the minority party to block appointments to the bench from the Supreme Court on down, individual senators can still thwart nominees from their home states by refusing to sign off on a form popularly known for its color — the blue slip.”

“Now, with some Democrats refusing to consent as the Trump administration moves to fill scores of judicial vacancies, Senator Mitch McConnell, the Kentucky Republican and majority leader, is for the first time publicly advocating that the blue slip be made strictly advisory when it comes to appeals court nominees — the most powerful judges after those on the Supreme Court.”

Justice Kennedy In the Middle Again

The Economist: “Why is Justice Kennedy hanging around for another year? Maybe he would like to put in a full three decades before hanging up his robe. Maybe he isn’t anxious to give Donald Trump an opportunity to replace him. Or maybe the dazzling array of cases coming to the Supreme Court in the term beginning on October 2nd is just too tantalizing to watch from the sidelines. Whatever his motivation, Justice Kennedy is likely to be the central player in a number of the most contentious disputes he and his eight colleagues will hear when they return from their summer break.”

“The first blockbuster comes on the second day of the term when the court hears Gill v Whitford, a challenge to partisan gerrymandering that Justice Ruth Bader Ginsburg says is ‘perhaps the most important’ of the term and that Ian Samuel, co-host of First Mondays, a podcast about the Supreme Court, told listeners may be the ‘most important of your life.'”

Trump’s Real Victory Is More Conservative Judges

Jeffrey Toobin: “While the tragicomic fall of Anthony Scaramucci was playing out at the White House on Monday, the mood was business as usual at the Capitol. There, the Senate was dealing with its own kind of personnel matter, one that, in the larger scheme, probably matters more than who happens to be the White House communications director of the week. To little notice, and with no fanfare, the Senate moved toward confirming another of President Trump’s appointees to a lifetime seat on the federal Court of Appeals.”

“So while the public watches Trump churn through White House staff members, his Administration is humming along nicely in filling federal judgeships, with the enthusiastic assistance of the Republican majority in the Senate. The first and most important victory for the President came with the confirmation of Gorsuch to the Supreme Court, in a seat that Mitch McConnell, of Kentucky, the Republican leader in the Senate, kept vacant for nearly the full final year of Barack Obama’s Presidency. But McConnell didn’t just protect a Supreme Court seat for the next President; he basically shut down the entire confirmation process for all of Obama’s federal-judgeship nominees for more than a year. It’s the vacancies that accumulated during this time—more than a hundred of them—that Trump’s team is now working efficiently to fill.”

Trump’s Big Win Has Been on Judges

Ron Klain: “He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.”

“Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s.”

Kennedy Tells Applicants He’s Mulling Retirement

NPR buries potentially big news about Justice Anthony Kennedy in a story about Justice Neil Gorsuch:

But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.

Kennedy’s position on the court is more than consequential. In the most hotly contested and closely divided cases, his vote often decides the outcome. With every passing day, it has become more clear that President Trump’s first Supreme Court nominee, Neil Gorsuch, is probably even more conservative than the justice he replaced, Antonin Scalia.

Rick Hasen: “This would put Justice Kennedy’s retirement right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority (already a strong possibility in 2018)… Republicans in the Senate would have a strategic decision to make: try to confirm a replacement before the elections, or use it as a tool to boost midterm turnout.”

Gorsuch Is the New Scalia

Rick Hasen: “Whatever else comes of the Donald J. Trump presidency, already he has perfectly fulfilled one campaign pledge in a way that will affect the entire United States for a generation or more: putting another Antonin Scalia on the Supreme Court. The early signs from Justice Neil Gorsuch, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.”

“Usually it takes a few years to get the full sense of a new justice. The job provides awesome power, and new justices often are reluctant to issue stark opinions or stake out strong positions early on… Not so with Gorsuch. In a flurry of orders and opinions issued Monday, Gorsuch went his own way.”

Gorsuch Among the Most Conservative Justices

Rick Hasen: “There was a lot of dissembling when Justice Gorsuch was nominated to the Supreme Court, that he was some kind of blank slate, without preconceived ideas about how he would rule as a Supreme Court Justice. Of course, this was a ruse to blunt public criticism. Many of us knew that he would be a very conservative Justice—the only question is if he will be more like Scalia, Thomas, or Alito.”

“Justice Gorsuch has been on the Court only a few months, and only heard one month’s worth of oral arguments. But today, on the last day of the Supreme Court’s term, we got a very good indication he will be most like Justice Scalia, and often voting with Justices Thomas and Alito, making Justice Gorsuch one of the most, or most, conservative Justices.”

Supreme Court Will Hear Travel Ban Case

“The Supreme Court announced on Monday that it will decide whether President Trump’s revised travel ban was lawful, setting the stage for a major decision on the scope of presidential power,” the New York Times reports.

“Mr. Trump’s revised executive order, issued in March, limited travel from six mostly Muslim countries for 90 days and suspended the nation’s refugee program for 120 days. The time was needed, the order said, to address gaps in the government’s screening and vetting procedures.”

Politico notes the court “will allow parts of the directive to take effect in the meantime.”

Axios: “Unlike in the original travel ban, travelers with valid green cards and visas will be allowed to enter the U.S., but all refugees from the 6 countries listed will be banned.”

All Eyes on Justice Kennedy

“White House sources think Justice Anthony Kennedy, the Supreme Court’s ideological fulcrum, may announce his retirement today, as the justices gather on the bench for the last time this term,” Mike Allen reports.

“Few domestic developments could more instantly and decisively change the national conversation — blotting out almost everything else, and vastly reducing the sting for conservatives is healthcare tanks.”

David Lat, writing last night: “Based on reports I’ve received from former AMK clerks who attended his law clerk reunion dinner last night, it is highly unlikely that Justice Kennedy will announce his retirement tomorrow.”

Is Anthony Kennedy About to Retire?

Associated Press: “To be sure, Kennedy has given no public sign that he will retire this year and give President Donald Trump his second high court pick in the first months of his administration. Kennedy’s departure would allow conservatives to take firm control of the court. But Kennedy turns 81 next month and has been on the court for nearly 30 years. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so. Kennedy and his clerks were gathering over the weekend for a reunion that was pushed up a year and helped spark talk he might be leaving the court.”

Kennedy Mulls Retiring from Supreme Court

Sources close to Justice Anthony Kennedy tell CNN that he “is seriously considering retirement, but they are unclear if it could occur as early as this term.”

“His departure would cause a seismic shift and offer President Donald Trump a chance to continue reshaping the court. Trump’s first nominee — Justice Neil Gorsuch, himself a former Kennedy clerk — joined the court earlier this year.”

Trump Appeals Travel Ban to the Supreme Court

“The Trump administration Thursday night asked the Supreme Court to reinstate its travel ban blocking entry from six Muslim-majority countries,” CNN reports.

“In its filing, the administration asked the nine justices to consider the legality of President Trump’s executive order, a move that appeals a ruling by the 4th Circuit that upheld a nationwide halt to the ban.”