New York Times: “For the second year in a row, rumors that Justice Anthony M. Kennedy may retire from the Supreme Court are sweeping Washington. He is 81, and he is doubtless weighing many factors in deciding whether to stay. Among them, experts in judicial behavior said, are the tug of party loyalty, the preservation of his judicial legacy and how close his retirement would be to a presidential election.”
Jill Abramson: “It’s also worth looking closely at, because… Thomas’s inappropriate behavior — talking about porn in the office, commenting on the bodies of the women he worked with — was more wide-ranging than was apparent during the sensational Senate hearings, with their strange Coke-can details.”
“But, most of all, because Thomas, as a crucial vote on the Supreme Court, holds incredible power over women’s rights, workplace, reproductive, and otherwise.”
“And given the evidence that’s come out in the years since, it’s also time to raise the possibility of impeachment. Not because he watched porn on his own time, of course. Not because he talked about it with a female colleague — although our understanding of the real workplace harm that kind of sexual harassment does to women has evolved dramatically in the years since, thanks in no small part to those very hearings. Nor is it even because he routinely violated the norms of good workplace behavior, in a way that seemed especially at odds with the elevated office he was seeking. It’s because of the lies he told, repeatedly and under oath, saying he had never talked to Hill about porn or to other women who worked with him about risqué subject matter.”
Bloomberg: “Kagan and Roberts are part of a quartet of relatively centrist justices, along with Anthony Kennedy and Stephen Breyer, who at times can turn their chemistry into a consensus and avert a sharp divide.”
“The group will be tested during what could be a divisive stretch starting next week, when the court reconvenes after a month-long recess. Between now and the end of June, the court will rule on partisan gerrymandering, voter-database purges, mandatory union fees, Trump’s travel ban and possibly his effort to rescind a deferred-deportation program.”
“The four justices are hardly ideological soulmates… But as a group they stand in contrast to their five less compromising colleagues — Ruth Bader Ginsburg and Sonia Sotomayor on the left and Clarence Thomas, Samuel Alito and Neil Gorsuch on the right.”
Rick Hasen: “Scalia disrupted business as usual on the court just like Gingrich disrupted the U.S. House of Representatives in the 1990s and Trump is now disrupting the presidency. Scalia changed the way the Supreme Court writes and analyzes its cases and the tone judges and lawyers use to disagree with each other, evincing a pungent anti-elitist populism that, aside from some criminal procedure cases, mostly served his conservative values. Now the judiciary is being filled at a frenetic pace by Trump and Senate Republicans with Scalian acolytes like Supreme Court Justice Neil M. Gorsuch, who will use Scalia’s tools to further delegitimize their liberal opponents and continue to polarize the federal courts.”
Coming soon from Hasen: The Justice of Contradictions: Antonin Scalia and the Politics of Disruption
In a sign of Rep. Trey Gowdy’s (R-SC) “desire to step back from public life, he recently turned down a golden opportunity to become a federal judge,” Politico reports.
“White House counsel Don McGahn in recent weeks broached Gowdy, a former federal prosecutor, about filling a slot on the Fourth Circuit Court of Appeals — a newly vacated judgeship that Gowdy has eyed before… His fellow Palmetto State Republicans, Scott and Sen. Lindsey Graham, also urged him to accept the post. But Gowdy, who’s long complained about the increasingly toxic nature of politics, turned down the position.”
“Thirteen years into the job, Chief Justice John G. Roberts Jr. remains a conservative — but he has shifted to a more moderate position among the conservative justices on the court, a small change with potentially dramatic consequences,” BuzzFeed News reports.
“Among the justices appointed by Republican presidents, Roberts agreed least with Justice Anthony Kennedy in Roberts’ first two terms leading the court — and the most with Kennedy in the two most recently completed terms.”
“That kind of shift could have significant effects on how the current court decides major issues and — if it represents a permanent change — on how Roberts leads the court into the next decade.”
“Shortly before his death in February 2016, Supreme Court Justice Antonin Scalia spoke favorably of Donald Trump’s presidential run,” the Wall Street Journal reports.
Said Bryan Garner, author of Nino and Me: “Justice Scalia thought it was most refreshing to have a candidate who was pretty much unfiltered and utterly frank.”
Garner added that the justice “was fascinated by the fact that Trump was so outspoken in an unfiltered way, and therefore we were seeing something a little more genuine than a candidate whose every utterance is airbrushed.”
President Trump “resubmitted 21 judicial nominees to the Senate whose nominations expired in 2017 ― including two rated ‘not qualified’ to be federal judges by the American Bar Association,” the HuffPost reports.
“Earlier this year, President Trump talked about rescinding Neil M. Gorsuch’s Supreme Court nomination, venting angrily to advisers after his Supreme Court pick was critical of the president’s escalating attacks on the federal judiciary in private meetings with legislators,” the Washington Post reports.
“Trump worried that Gorsuch would not be ‘loyal,’ one of the people said, and told aides that he was tempted to pull Gorsuch’s nomination — and that he knew plenty of other judges who would want the job.”
Alex Kozinski, a judge on the U.S. Court of Appeals for the 9th Circuit who is known for his colorful written opinions, announced his retirement after being accused “by 15 women of subjecting them to inappropriate behavior, including having clerks watch porn in his chambers,” the Washington Post reports.
“Nine more women say that Alex Kozinski — a high-profile judge who sits on the U.S. Court of Appeals for the 9th Circuit — subjected them to sexual comments or other conduct, including four who say he touched them inappropriately,” the Washington Post reports.
“Kozinski, known for his libertarian views and colorful written opinions, already had been accused of subjecting several women to a range of inappropriate sexual conduct or comments… The new allegations — which span decades and include not just those who worked for Kozinski but also those who encountered him at events — bring the total number of women accusing the judge of inappropriate behavior to at least 15.”
Senate Judiciary Committee Chairman Chuck Grassley (R-IA) issued a rare rebuke of two of President Trump’s most controversial judicial nominees, telling CNN the White House should rethink the picks.
Grassley said that he is advising the White House to “reconsider” the nomination of Jeff Mateer, who was selected to become a federal judge in Texas. He said the White House “should not proceed” on the nomination of Brett Talley, whom Trump picked to become a federal judge in Alabama.
Said Grassley: “I would advise the White House not to proceed.”
“A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually,” the Washington Post reports.
The Senate confirmed Trump legal adviser Gregory Katsas “to serve on what is often described as America’s second highest court,” ABC News reports.
The vote to confirm was 50 to 48, with all Democrats present and Sen. John Kennedy (R-LA) opposed.
“Katsas has worked on some of the president’s most contentious decisions, including his executive orders restricting travel for citizens of predominantly Muslim countries and his decision to end a program protecting some young immigrants from deportation.”
Jonathan Swan: “Katsas is the 9th judge Trump has placed on the federal bench. Barack Obama confirmed just three federal judges in his first year. Ronald Reagan had previously confirmed the most in recent history, with eight in his first year.”
Jonathan Swan: “If Mitch McConnell’s schedule goes to plan, the week after Thanksgiving the Senate Majority Leader will confirm his ninth federal judge. That would beat President Reagan’s eight in his first year — the most in recent history. And it triples the three federal judges President Obama appointed in his first year in office.”
“The federal courts affect almost every area of policy: gun rights, presidential executive orders like Trump’s travel ban, social policy issues like abortion and freedom of religion, and tensions between regulation, litigation and private enterprise. McConnell’s judges — who passed through a well-funded and organized conservative pipeline — will shape the U.S. over many decades in ways we can’t yet imagine.”
“Smart Democrats are deeply concerned about this trend, and understand that these lifetime judicial appointments will have a much greater impact on the future direction of this country than any short-term spending deal or policy.”