Friday round-up

For The Wall Street Journal, Jess Bravin and Brent Kendall report that “[t]he confirmation battle over Supreme Court nominee Brett Kavanaugh likely will look backward as much as forward,” examining “not only what his 12-year record on a federal appeals court suggests about his future votes but also whether his enlistment in the political wars of the Bill Clinton and George Bush eras marks him as a partisan operative or an energetic patriot.” For The Economist, Steven Mazie observes that “Mr Kavanaugh has insisted that judges must always put party politics aside” and that “[h]is installation on the Supreme Court will test whether that is really possible.” For The New York Times, Erin McCann offers “a distilled version of what’s happened since President Trump introduced his court nominee to the world on Monday night.”

For The Hill, Jordain Carney reports that “Senate Democrats are in a terrible bind as they search for a strategy to block Supreme Court nominee Brett Kavanaugh,” finding themselves caught between the demands of red-state Democratic re-election candidates and those of a “progressive base.” A policy chat at FiveThirtyEight covers “the politics of the selection,” “run[ning] through each of the power players … and talk[ing] about what their strategy should be.” For the Associated Press, Jessica Gresko reports that it would likely take “the death of a justice” for “President Donald Trump to get yet another Supreme Court pick.”

At The Atlantic, David Graham looks into questions about the credit-card debt revealed on Kavanaugh’s financial-disclosure forms and “how he paid the debt off so quickly.” The editorial board of The Wall Street Journal warns that “the smears” against Kavanaugh “have begun even earlier than usual,” and that “[t]his week’s mud on the wall includes a claim of guilt by association when Mr. Kavanaugh was a law clerk 27 years ago.”

At The Nation, Gregg Levine offers 10 “tough questions about important issues that might come before the Court” that progressives would like Kavanaugh to answer at his confirmation hearing. In an op-ed at TC Palm, Mark Miller considers how the topic of stare decisis, or adherence to precedent, may come up during the confirmation, noting that “while stare decisis is a vital legal principle, the justices of the Supreme Court have never considered it a non-negotiable command.” At The Federalist, Margot Cleveland maintains that “[o]n the Second Amendment, Kavanaugh supports ‘common sense gun control.’”

At The Atlantic, Ronald Brownstein suggests that “the real key to [Kavanaugh’s] legal—and political—impact on the Supreme Court could eventually be his demonstrated resistance to the federal regulation of business.” At Vox, Matthew Yglesias argues that “Kavanaugh’s doctrine is not about the promotion of self-government or even about deference, it’s about viewing discretion as a one-way street that is always biased against regulation.”

Also at The Atlantic, Robinson Meyer notes that “Kavanaugh has sometimes sympathized with the need for environmental protection,” “[b]ut because he considers global warming to be charged with a ‘huge policy imperative,’ he’s skeptical that the Environment Protection Agency (or the executive branch) should be fighting it alone,” “[a]nd as a future justice, he’s likely to block the agency from doing so.” At Inside Climate News, Marianne Lavelle observes that Kavanaugh “has compiled an extensive record of skepticism toward the government’s powers to act on climate change.”

At The Advocate, Shannon Price Minter worries about the effect of Kavanaugh’s appointment on “LGBTQ people and other vulnerable groups.” At National Review, Dan McLaughlin looks at a criminal case involving a “battered-woman defense,” noting that “Judge Kavanaugh was empathetic, able to look at the duress defense both from the perspective of the battered woman’s fear of leaving and the perspective of jurors asking the common-sense question ‘why didn’t she leave?’” In an op-ed for The Wall Street Journal, Amy Chua remarks on Kavanaugh’s record as “a mentor for young lawyers, particularly women,” observing that when “the press is full of stories about powerful men exploiting or abusing female employees,” it is “even more striking to hear Judge Kavanaugh’s female clerks speak of his decency and his role as a fierce champion of their careers.”

Megan Brennan reports at Gallup that “[a]s the U.S. Senate prepares to hold confirmation hearings for Supreme Court nominee Brett Kavanaugh, the public is strongly opposed to any attempts to overturn Roe v. Wade, the landmark 1973 ruling that made abortion legal nationwide.” At The Daily Beast, Jay Michaelson maintains that “[i]n a speech given just last year to the American Enterprise Institute, Kavanaugh made it perfectly clear that he believes Roe to have been wrongly decided.” In an op-ed for Politico Magazine, Rich Lowry argues that “[i]f the left were serious about its new worries about an undemocratic court, it would welcome the prospect of overturning Roe v. Wade and returning the issue of abortion directly to the voters.”

At The American Spectator, Dov Fischer endorses Kavanaugh’s nomination, arguing that “[n]ot only do [his] writings reflect a solidly conservative approach to jurisprudence, though less overtly partisan and combative than was Justice Scalia’s style, but he is the right person for the right moment.” For The Atlantic, Paul Rosenzweig recounts his experience arguing a pro bono case before Kavanaugh in the court of appeals, noting that “[a]t least in this one instance, he was generous and open to the appeal of the little guy.”

At OurFuture.org, Sam Pizzigati argues that in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities, the Supreme Court “has totally ignored growing economic inequality.” The editorial board of The Wall Street Journal suggests that in “the post-Janus era when they can no longer conscript non-members to subsidize union political activities,” “[m]aybe unions should stop taking political positions that alienate so many workers.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Briefly:

• At The Data Face, Oliver Gladfelter measures “party-line votes” on the Supreme Court, concluding that “[w]ithout a moderate on the court, it’s likely the amount of contentious 5-4 cases will significantly increase.”
• At Take Care, John Paul Schnapper-Casteras observes that a trio of opinions at the end of October Term 2017 “suggests this might be the year that the Court begins to meaningfully grapple with the constitutional implications of emerging technologies.”
• For The New York Times, Alan Feuer reports that “[a]n array of criminal justice advocates — civil libertarians, a law enforcement organization, even a group run by the industrialist Koch brothers — has joined forces to ask the Supreme Court to reconsider the contentious doctrine of qualified immunity, which permits the authorities to avoid being sued for misconduct even when they violate the law.”
• At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Frank v. Gaos, which challenges a class-action settlement in a privacy case against Google in which, under the doctrine of cy press, settlement money was “diver[ted] … from the victims to causes chosen by the lawyers is referred,” arguing that “[t]he use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.”
• At Bloomberg Law, Kimberly Robinson reports on “[t]he ‘constellation model’—where there are several bright stars rather than all appellate attorneys in service to one—” used successfully this term by one law firm specializing in Supreme Court cases.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!