Kavanaugh Fights Back

In an event without precedent in the history of Supreme Court confirmation hearings, nominee Judge Brett Kavanaugh gave a televised interview to refute sexual assault allegations dating back to his high school years. (Video here; transcript here.) He appeared on Fox News Monday night, seated alongside his wife, Ashley Estes Kavanaugh.

The substance of Kavanaugh’s comments was nothing new. The nominee repeated over and over what he had already said in previously released statements: he never sexually assaulted anyone, “in high school or otherwise” (recent allegations of sexual misconduct involve his college years); he respects women; he just wants a fair process.

Ashley Kavanaugh offered a few brief comments in support of her husband. “He’s decent, he’s kind, he’s good,” she insisted. “I know his heart. This is not consistent with—with Brett.”

The only new information came when Kavanaugh defended himself by saying, “I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter.” This prompted the interviewer, Fox News reporter Martha MacCallum, to ask, “So you’re saying that through all these years that are in question, you were a virgin?” “That’s correct,” responded Kavanaugh.

Never been a particularly smooth operator when under the lights, Kavanaugh was clearly uncomfortable throughout the interview. He was stiff. He kept circling back to his talking points, often repeating them verbatim.

No Supreme Court nominee has ever done a press interview during the nomination process, never mind going on national television in prime time. Clarence Thomas and his wife Virginia were on the cover of People magazine in 1991, but this was only after he was confirmed to the Court, and the magazine piece was an account of the confirmation experience by Virginia Thomas because, as she explained, “I want to tell people about what we went through, even if Clarence can’t.”

A key question is whether the American people are watching another norm falling. Might we see future nominees engaging with the media to bolster their case for confirmation? Although it’s hard to imagine, much of what we’re seeing in public life recently was hard to imagine not so long ago.

Christopher W. Schmidt is a Chicago-Kent Faculty Member and Co-Director of ISCOTUS. 

The Latest on Cameras in the Supreme Court

Supreme Court nominee Brett Kavanaugh broke precedent during his confirmation hearings by declining to take a stance on cameras in the Supreme Court. Kavanaugh acknowledged that many recent nominees have suggested during confirmation hearings that they would support video coverage of the oral arguments at the Court, but then promptly reversed themselves upon taking a seat on the bench.  

Image result for cameras in supreme court“I know nominees who’ve sat in this chair in the past have expressed the desire for cameras in the courtroom, only to get to the Supreme Court and really change their positions fairly rapidly,” Kavanaugh said. The pattern gave him “some humility” about taking a stance on the issue before serving on the Court.

Kavanaugh also declined to express support for televising opinion announcements.

The public supports bringing cameras to the Supreme Court, according to a recent survey. C-SPAN commissioned research-based consultants PSB to conduct the poll. Based on online interviews of 1000 likely voters from August 2018, 64% agree that the U.S. Supreme Court should allow television coverage of its oral arguments.  If the Court declines to allow televised coverage, 71% believe it should release audio recordings on the same day arguments took place.

Other interesting findings from the survey:

  • 69% had been following the news about President Trump’s nominee to the bench;
  • 91% agreed that decisions made by the U.S. Supreme Court affect their everyday lives as citizens.

In light of the finding that 56% of respondents think that the Court is split politically, PSB Senior Strategist Adam Rosenblatt told Observer, “People are just assuming that they’re partisan entities. That has very serious implications.”

The Court appears unlikely to change its anti-camera policy soon. As CNN notes, none of the current justices support the idea. Justices Kagan and Sotomayor, who expressed support for cameras in the Supreme Court during their confirmation hearing,  both publicly stated on the same day in 2015 that they no longer favor the idea. Justice Gorsuch said during his confirmation hearing merely that he would approach the idea with an “open mind” but has not said anything more about the issue since.

 

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Kavanaugh Nomination Update—September 20, 2018

Amid the sexual assault allegations against Judge Kavanaugh, there have been renewed calls for the Senate to delay its vote on the nominee. Democratic Senator Dianne Feinstein issued a statement on Sunday in which she expressed her “support” for Kavanaugh’s accuser, Christine Blasey Ford, the psychology professor who only went public with her accusations because she felt  “her civic duty outweighed her desire for privacy.” Feinstein urged the Senate to let the FBI conduct an investigation into the allegations before moving forward. Her statement quickly drew criticism from Kavanaugh supporters, who described it as a “Hail Mary pass” and questioned the timing of Feinstein’s decision to release Ford’s letter describing her accusations.

Opinion has been sharply divided on how the Judiciary Committee should deal with this new development. David Frum, writing in the Atlantic, urges a delay because the Senate does not have the proper resources to conduct a thorough investigation into the issue. When it come to dealing with the assault allegations, he wrote that the Republicans on the Judiciary Committee are “the wrong men in the wrong job at the wrong time.” Kavanaugh supporters, by contrast, believe the Democrats are using the accusations as a way to “run out the clock,” hopefully delaying the vote until after the midterm elections. Some are predicting that a process that seemed fast-tracked to place Kavanaugh on the Supreme Court by the opening of its new term on October 1 now may end with Kavanaugh never making it to the Court.

On Monday, the Senate announced that it would continue the nomination hearings the following Monday, September 24, when it planned to hear from both Judge Kavanaugh and Dr. Ford (click here for a more detailed discussion of the upcoming hearings). Blasey has now indicated she wants an  FBI investigation to be completed before she testifies. Kavanaugh has “categorically and unequivocally” denied the allegations as “completely false.”  

Those who have demanded a thorough investigation into Ford’s accusations have warned that the process should learn from the experience of the Clarence Thomas hearings of 1991 and avoid the kind of vilification of the accuser that occured then. Anita Hill, who came forward with allegations of sexual assault against Thomas (click here for a refresher on those events), has spoken out, discussing how the Senate might learn from the past and do a better job handling these hearings . So far, the White House has seemed open to these kinds of recommendations. Presidential advisor Kellyanne Conway said that Ford “should not be insulted, and she should not be ignored.” President Donald Trump, while reiterating his support for Judge Kavanaugh, also  remarked that if Ford “ makes a credible showing, that will be very interesting, and we’ll have to make a decision.”

 

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Do Controversial Confirmation Hearings Hurt the Court?

We are in the midst of one of the most heated Supreme Court confirmations in recent memory. In terms of pure public drama, Judge Brett Kavanaugh’s hearings—which will continue on Monday when he confronts allegations of his involvement in sexual assault while in high school—ranks behind only those of Clarence Thomas in 1991 and Robert Bork in 1987. From the start of the Kavanaugh hearing, Senate Democrats demanded that the Senate Judiciary Committee delay the proceedings until they could obtain, review, and get permission to publicly release more documents from Kavanaugh’s time working in the administration of George W. Bush in the early 2000s. No sooner had they begun what would be a steady chorus of dissent throughout the hearing but members of the audience began their own protests, one after another standing to denounce the nominee and the hearings before Capitol Police escorted them out of the room and arrested them. This continued throughout the hearings, providing a steady stream of awkward interruptions to the proceedings.

Image result for kavanaugh hearing

Democratic Senators made clear before the hearings began that they felt the Republicans were rushing the process, thereby preventing the Democrats from properly vetting Kavanaugh’s immense paper trail from his time working in the Bush Administration. Chuck Grassley, the Republican chair of the Judiciary Committee, rejected these requests in the lead-up to the hearings, and he refused to alter course when faced with the coordinated onslaught of interruptions and complaints from his Democratic colleagues. Senator Patrick Leahy denounced the process as “the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee I have ever seen.” Democrats also called on Kavanaugh himself to request a delay of the hearing, so that committee members could have time to receive and review the relevant documents. “For the sake of this nation, for the sanctity of the Constitution that we both honor, step up,” Senator Dick Durbin demanded of the nominee. “Ask this gathering to suspend until all the documents of your public career are there for the American people to see.”

Republican Senator John Cornyn lamented that the hearing had devolved into “mob rule.” It was “unlike anything I’ve seen before in a confirmation hearing.” An interruption by a protester set off Senator Orrin Hatch. “I think we should have this loudmouth removed,” he said. “We shouldn’t have to put up with this kind of stuff.” Leahy declared that he was “sorry to see the Senate Judiciary Committee descend this way.”

The hearing room dramatics caused some to wonder whether confirmation hearings are even worth having anymore. They’ve become “a circus, a theater, a fiasco,” wrote Genevieve Wood on the Heritage Foundation’s website. “It’s time to put an end to this whole political charade. It is full of sound and fury, but it accomplishing nothing. And it’s wasting both the Senate’s time and our taxpayer dollars.”

So are Supreme Court confirmation hearings worth keeping? To assess their value requires more that just identifying their most unsavory aspects and declaring them useless, of course. It requires an appraisal of their costs and their benefits. In the benefits column, there is the value of a public vetting of a nominee to a lifetime appointment to one of the most powerful offices in the land. Critics often counter that there are less public and less theatrical processes that would serve to better vet the nominees. But even if conceding this to be the case, defenders of public hearings insist that the nomination process provides a valuable moment when the American people have an opportunity to learn something about the often opaque Supreme Court—what it does, how it works, and the judges who serve on it. The Court’s legitimacy rests, ultimately, on public faith that the Court is serving its proper role, and confirmation hearings might offer an opportunity to bolster that faith. But here too critics push back, conceding that public interest in and understanding of the Court is important but asking whether what the people learn about the Court and the justices during confirmation hearings serve to strengthen or weaken public faith in the Court and its role in American society. So do confirmation hearings, and particularly sharply contested and controversial ones like the one we’re now witnessing, hurt the Court?

In terms of public support, the Supreme Court stands above the other branches of government, and research suggests that this support is relatively secure. Nonetheless, there may be reason for concern that the kind of ideologically polarized, intensely partisan debates we’re seeing in confirmation hearings and surrounding them may be hurting the Court’s reputation among the American people. Some scholars have found that media coverage of the Court that focuses on the winners and losers of a given case (called “game frame” coverage) might undermine public support. Confirmation hearings, where media coverage is dominated by the language of partisanship and hyperbole, of winners and losers (see, for example, this Vox article, complete with “winner” and “loser” tallies), would thus seem to be a recipe for undermining the Court’s popular legitimacy.

If the American people are to have a discussion of whether the circus of Supreme Court confirmation hearings are worth holding onto, we’ll need to consider what they give us and what they might be taking away from us.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Kavanaugh Hearings: Roundup

Supreme Court nominee Judge Brett Kavanaugh’s confirmation hearing last week was highly contentious from the very start. The first day is generally limited to opening statements by the members of the Senate Judiciary Committee, formal introductions of the nominee, and the nominee’s own opening statement. But as CBS reports, day one began with Democratic senators’ calls for motions to adjourn the hearing due to the lack of disclosure of documents relating to Kavanaugh’s time in the White House and the abrupt release of more than 40,000 additional documents the night before. (For background on the documents controversy, see this ISCOTUSnow post.) Democratic Senator Kamala Harris stated “the American people deserve better than this,” in reference to the amount of records missing, and questioned Kavanaugh’s “loyalty” to the president and the Constitution. Fellow Democrat Cory Booker had the same concerns, and brought up the likely political ideological shift of the Court if Kavanaugh is confirmed. Republican Senator Ben Sasse stated the Democrats concern is “deranged,” and that they engaged in “90 minutes of theatrics” in the “circus” of a hearing. Fellow Republican Senator Ted Cruz remarked that the documents are “irrelevant to what Kavanaugh thinks, believes or has said.”

Day two was more focused on Judge Kavanaugh himself, as he faced questions from the senators about his judicial philosophy and his approach to various legal issues. According to the New York Times, Judge Kavanaugh declined to answer whether he believed Roe v. Wade was decided correctly, although he described Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the “core holding” of Roe, as  “precedent on precedent” regarding abortions, entitled to judicial respect. However, in a past email, then-White House Staff Secretary Kavanaugh said, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” (Judge Kavanaugh’s comment was responding to an op-ed drafted internally at the White House that was ultimately edited. The email’s original opening line stated, “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”) As the New York Times’ Charlie Savage and Sheryl Gay Stolberg pointed out, this email became publicly known only after Judge Kavanaugh said that Roe is “settled as precedent of the Supreme Court.”

 

Kavanaugh stated he would not answer “hypothetical questions” such as if President Trump could pardon himself or pardon associates who may testify against him. He also stated that after watching President Bush respond to 9/11 and its aftermath, he changed his mind regarding aggressive investigations of the President, such as the Ken Starr investigation of President Clinton’s affair with Monica Lewinsky, in which he participated. He concluded that investigations are too distracting and he argued that Congress should consider enacting a statute protecting  sitting presidents from active investigations. The Washington Post reports Kavanaugh declined to commit to recuse himself from cases involving investigations into President Trump’s conduct.

 

On a more personal note, as NPR reports, Kavanaugh also mentioned his history of hiring a large number of women law clerks, and remarked his mother, also a judge, showed him “the importance of women’s equality.”

Day three continued the questioning by the committee, and The New York Times reports Kavanaugh refused to state whether he believed Obergefell,the landmark case establishing a right to same-sex marriage was correctly decided. In response to questioning regarding his view of special counsel, Kavanaugh responded he is “not afraid” to “invalidate executive power when it violates the law.”

Notably, on the last day of the hearing, former Nixon era White House counsel John Dean testified and stated Kavanaugh’s confirmation would lead to the “most presidential-powers friendly” Supreme Court, according to The Washington Post. The day was filled with testimony by witnesses for and against the nominee. The American Bar Association remarked on their unanimous rating of “well qualified” of Kavanaugh, and one of their officials stated he is “absolutely” a mainstream jurist. His previous clerks praised the judge as a mentor and teacher, and former U.S. Solicitor General Theodore Olson stated he has heard nothing but the “highest praise” for his as a “human being, a lawyer, and a judge.” Congressional Black Caucus chairman Cedrick Richmond called Kavanaugh a “grave legal danger,” and other opposing witnesses, including a survivor of the Parkland, Florida shootings and a child with a serious medical conditions voiced concern with Kavanaugh’s positions on key rights affecting them, such a gun laws and access to healthcare.

 

Michael Karnish of the Washington Post reports that Vermont Democratic Senator Patrick J. Leahy, a minority member of the Senate Judiciary Committee, said on Friday—the day after the final day of the confirmation hearing—that Judge Kavanaugh likely knew about stolen Democratic emails from a shared server by GOP staffers. However Kavanaugh, denied recalling anything about it, and denied knowing what Leahy was referring to. However, In 2004 and 2006, when Kavanaugh sat for nomination hearings to his appointment to the federal bench, Leahy questioned Kavanaugh about his knowledge of the emails. Kavanaugh only disclosed some knowledge of their content and insisted he knew about the ordeal when it was released to the public Miranda viewed the emails on the server. However, newly disclosed emails may show Kavanaugh knew more than he originally alluded.

ISCOTUS Fellows Matthew Webber and Michael Halpin, Chicago-Kent Class of 2019 and 2020 respectively, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.

The Kavanaugh Documents Controversy

During the first day of the hearing for Judge Brett Kavanaugh’s nomination for the Supreme Court starts on Tuesday, September 4, 2018. On the first day, the senators on the Senate Judiciary Committee will make opening statements, but there won’t be questions for the nominee. But these opening statements are likely to be unusually contentious. Democrats are angry with the White House and the Republicans over the release — or lack of release — of documents from Judge Kavanaugh’s career in government. This post summarizes some of that controversy.

In the 1990’s, Kavanaugh worked for Ken Starr when he was investigating President Bill Clinton. Later, he spent time working in George W. Bush’s White House. Senate Democrats demanded to see all documents from this time. Almost three weeks after Kavanaugh’s nomination was announced, Senator Grassley, Republican chair of the Senate Judiciary Committee, asked Patrick Mordente, Director of the George W. Bush Presidential Library and Museum, for emails and textual records relating to Judge Kavanaugh’s time serving the White House, and documents relating to Judge Kavanaugh’s nomination to the U.S. Court of Appeals for the D.C. Circuit. At about the same time, Senator Dianne Feinstein, ranking Democrat on the Committee, wrote to the National Archives and Records Administration (NARA), expressing concern that NARA had not yet started reviewing Kavanaugh records for release, thus deviating from past Supreme Court nominee document review practices.

In early August, NARA announced that it would be unable to complete its review of the relevant records until late October. Senate Democrats file Freedom of Information Act (FOIA) requests to get Kavanaugh records from NARA, Department of Justice, Department of Homeland Security, and the CIA. Senator Grassley nonetheless set the hearing to begin this week. In the meantime, Bill Burck, personal lawyer for President Bush, reviewed and approved the release of some documents from the Bush Library. Burck was Kavanaugh’s deputy in the White House and now represents several current and former White House staffers — Don McGahn, Reince Priebus, and Steve Bannon — in relation to the Mueller probe. After Burke completed his review, on the Friday before the hearing begins, the Trump administration announced that it was asserting executive privilege over 100,000 pages of documents that the Bush Library had cleared for release.

Democrats and their allies are comparing the unreleased documents for Kavanaugh with what they say was the comprehensive release of documents from Justice Elena Kagan’s time in the Clinton White House during her confirmation hearings. Democrats argue that the same level of cooperation should be shown today. Republicans, on the other hand, argue that some of the documents requested are irrelevant to Brett Kavanaugh’s judicial philosophy, and that his opinions during his time as a judge on the D.C. Circuit, along with other publicly available documents, should be sufficient, and that the documents produced are comparable to those produced for Kagan’s nomination.

In addition, there are some specific areas of dispute. During Kavanaugh’s confirmation hearings for his appointment to the D.C. Court of Appeals in 2006, he stated that was not involved with the legal issues surrounding the use of enhanced interrogation techniques on high value detainees. A newly released email from November 19, 2011 has recently become the focus of those who doubt the veracity of this claim. Senator Patrick Leahy, for example, a longtime Democratic member of the Committee, explains that he needs “Kavanaugh’s FULL record because it will reveal if he lied to me under oath in 2006—whether he is fit to serve on our highest court.”

Democratic Senators are not the only ones pushing for more documents regarding his time in the White House. On August 13th, Lambda Legal announced that it had also filed FOIA requests for documents and communications, specifically from Kavanaugh’s time in the White House from 2003 to 2006. (Lambda Legal is a LGBTQ civil rights legal organization.) They filed requests with eight different departments and agencies citing, for example, the interest that both Lambda Legal and the public have in knowing what role Kavanaugh played in President Bush’s efforts in advocating for a constitutional amendment that would have banned same-sex marriage. The announcement, with links to each individual FOIA request, can be found here.

The hearing is poised to go forward without all the documents sought by Democrats and their allies. But with FOIA requests outstanding, at least some of those documents may eventually be made public, albeit perhaps after the hearing — and possibly even after the vote on Kavanaugh’s confirmation. What he says during the hearing, and how it compares to the documentary record, may be a controversy that does not end soon.

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, contributed to this post.

Kavanaugh Hearing Preview

Less than two months after President Trump announced his nomination, Judge Brett Kavanaugh will begin his confirmation hearing to sit on the Supreme Court on September 4.  The Senate Judiciary Committee has a dedicated webpage about the hearing here. On the first day, we can expect to hear opening statements by committee members, as well as from the nominee. Questioning will likely begin on the following day. On Friday, third-party witnesses will testify both in support of and in opposition to the nomination. (One of the more unusual witnesses in opposition will be John Dean, who served as White House Counsel to President Richard Nixon.) Because the Republican-controlled Senate eliminated the filibuster during the confirmation process for Justice Neil Gorsuch, Kavanaugh needs only 50 votes to be confirmed. Republicans hold 50 seats, although once the Arizona governor appoints a replacement for recently deceased Senator John McCain, the GOP will have 51 seats.

As Adam Liptak of the New York Times writes, Kavanaugh’s nomination has the potential to change the ideological direction of the Supreme Court. Not surprisingly, the nomination quickly drew supporters and opponents from both sides of the political spectrum.The National Rifle Association has been extremely vocal about their support for Judge Kavanaugh, having launched a seven-figure campaign calling for his confirmation (despite recent claims of “deep financial trouble”). Several pro-choice groups have come together with a campaign called “Rise up for Roe,” touring several cities to highlight the threat that Kavanaugh poses to abortion rights and Roe v. Wade. Some legal scholars have criticized his views on separation of powers as being one-sided, and religious groups have mused about how a Kavanaugh confirmation might lead the Court to “become more accommodating to conservative religious interests.” Coverage of the debates on the issues that underlie these movements is discussed in more detail below.

Separation of Powers and Individual Liberty

At the July 9 event when the President introduced Judge Kavanaugh as his nominee, Kavanaugh was quick to express his views on liberty, stating “I teach the Constitution’s separation of powers protects individual liberty” (click here to watch his full remarks.) ISCOTUS co-director Carolyn Shapiro has criticized his views as one-sided, solely concerned about how government regulations impede liberty, and ignoring the idea that regulations can actually enhance liberty. Her article compares his anti-regulatory views in PHH Corp. v. CFPB, which addressed the Consumer Financial Protection Bureau, with his willingness to uphold restrictions on abortion in Garza v. Hargan, and it explains how his views on the regulation-liberty relationship could also have implications for the Mueller investigation

On the other side, Peter Wallison in the Wall Street Journal praised Judge Kavanaugh’s recognition that regulations must come from democratically accountable entities, and looked forward to a Supreme Court that will cut back on deference to administrative agencies. Finally, some note that such reduced deference would apply to regulatory and deregulatory efforts alike, so might not lead to as much deregulation as some hope or fear.

Roe v. Wade

Abortion will be at the center of much of the hearing, although Kavanaugh is unlikely to provide a straightforward answer about his views on Roe v. Wade or the abortion cases decided since then.  In Garza, although Judge Kavanaugh didn’t explicitly deny the teenager’s right to obtain an abortion, he appeared sympathetic to the government’s position that it could discourage, and perhaps even prevent, her from having an abortion. He has also publicly stated his admiration for then-Justice William Rehnquist’s dissent in Roe, as this Vox article explains, and at Slate, Dahlia Lithwick and Jed Shugerman argue that Kavanaugh is clearly anti-choice. Indeed, President Trump himself promised to appoint justices who would “automatically” overturn Roe. Anti-abortion groups greeted Kavanaugh’s nomination with excitement.

But much of the discussion at the hearing will focus not on abortion itself but rather on stare decisis, the principle of standing by things decided. Stare decisis is a central principle in American law, but it is not absolute. In fact, this last Term, the Supreme Court overruled several longstanding precedents. In 1992, on the other hand, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court declined to overrule Roe on grounds of stare decisis. And even without overruling Roe outright, the Supreme Court could approve increasingly rigid restrictions on abortion.

Law and Religion

Judge Kavanaugh has been described as a warrior for religious liberty, with many praising what they see as his consistent support for and dedication to protecting religious liberty. That support, though, has others concerned about the collateral consequences of this for other individual rights, given (among other reasons) his support for the Court’s decision in Hobby Lobby. In Hobby Lobby, the Court held that a corporation has constitutional religious rights, and thus could deny employees healthcare coverage for birth control to which they would be otherwise entitled because of the owners’ religious objections. Click here for a more detailed discussion of specific cases that give some clue as to how he might rule on religious freedom issues in the future.

The Second Amendment, Guns, and the NRA

Judge Kavanaugh’s position on the Second Amendment has been described as so radically conservative that he is “outside the mainstream” — a term no doubt being used in an attempt to rally opposition to his confirmation similar to how Democrats used it to block Robert Bork’s confirmation 30 years ago. Some fear that gun safety laws could be struck down, such as the ban on semi-automatic weapons in California, given his dissent in Heller v. District of Columbia. In that dissent, he strongly opposed the decision of the D.C. Circuit Court to uphold the District of Columbia’s ban on most semi-automatic rifles and accompanying requirement for all guns in D.C. to be registered. On the other end of the spectrum, his views are being celebrated by many, and as described above, the NRA is strongly supporting his nomination.

What Else?

Of course, the coverage has not been limited solely to the issues discussed above. Senate Democrats have filed Freedom of Information Act requests for documents related to Judge Kavanaugh’s time working for George W. Bush. There will be many questions about his view of presidential power. ISCOTUSnow will continue to post summaries and links to thoughtful coverage, so check back often!

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent class of 2020, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.

End of the 2017-18 Term: Race and Redistricting

During Justice Kennedy’s last weeks at the Supreme Court, the Court decided a number of important cases, many of them 5-4. We’ve already posted about many of them, including the partisan gerrymandering cases, Janus v. AFSCME (the big union fees case), and the internet taxation case. We’ll post about the rest over the next few days. Here. we’ll take on the last of the redistricting cases that the Court decided, Abbott v. Perez. Unlike the partisan gerrymandering cases, this litigation involved allegations that the districting plan violated the rights of racial minority voters.

This case initially arose in 2011 after Texas drew new district maps for both its congressional delegation and the state legislature. Plaintiffs challenged the plans as violating the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act. Early in the litigation, the district court required Texas to adopt interim plans to address at least some of the problems with the pre-existing ones. In 2013, the legislature formally adopted those 2013 plans, with minor changes, as its own. The plaintiffs continued their litigation, however, alleging that the 2013 plan also violated both the Equal Protection Clause and §2 of the Voting Rights Act.

The District Court found on that the 2013 districting plan was based on discriminatory intent and that several congressional and Texas House districts were affected. In addition, three other districts were invalidated under §2 of the Voting Rights Act because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. A fourth district was found to be an impermissible racial gerrymander.  Click here for a more in-depth look at the background in this case from the Brennan Center for Justice.

Because the case was heard by a three-judge district court, it went directly to the Supreme Court. (See  28 U.S.C. §1253.) The majority opinion was delivered by Justice Alito and joined by Justices Roberts, Kennedy, Thomas, and Gorsuch. The Court held that the district court erred when it found that the legislature had discriminatory intent (as required to establish a violation of the Equal Protection Clause) when it adopted the 2013 map. The Court explained that the district court erroneously placed the burden of proof on the state, not the plaintiffs by “insisting” that Texas show that the 2013 Legislature had experienced a “change of heart” and engaged in a process that removed the “taint” of discriminatory intent from the 2011 districting plan. The district court should instead have afforded the legislature a presumption of good faith, which should be unchanged by a finding of past discrimination.

The Court then addressed the three districts that the district court invalidated for voter dilution. Because these holdings were based on the Voting Rights Act, the plaintiffs here did not need to establish discriminatory intent. In order to make this claim under §2 of the Voting Right Act, the plaintiffs needed to establish that the minority group was denied the equal opportunity to elect their candidate of choice. The analysis and evidence is complex and technical, based on demographic information and voting patterns among both minority and majority voters. The Court reversed the district court’s finding that the districts improperly diluted Latino votes.

The Court, however, did hold that the creation of a single Texas House district, which had been substantially modified from the district court’s plan by the 2013 Legislature, was an invalid racial gerrymander. In drawing this district, Texas had first moved the community of Como, which is predominantly African-American, out of the district in order to make it a Latino opportunity district. Como residents and their Texas House Representative objected, so Como was moved back into the district and the Legislature changed the district lines to bring the Latino population above 50%. Texas had argued that they had “good reasons” to consider race as a predominant factor in the creation of the district, but the Court found Texas’ reasons lacking. This issue is remanded to the District Court to consider what, if any, remedy is appropriate.

Justice Thomas wrote a short concurrence to note that he does not believe that §2 of the Voting Right Act applies to redistricting at all. He was joined by Justice Gorsuch.

Justice Sotomayor wrote the contentious dissent, joined by Justices Ginsburg, Breyer, and Kagan. The dissent begins with disagreement over whether the Supreme Court even had jurisdiction. On the merits, Justice Sotomayor wrote that the District Court evaluated “substantial evidence” that the 2013 legislature had “adopted the interim plans as part of a ‘strategy [that] involved adopting the interim maps, however flawed,’ to insulate (and thus continue to benefit from) the discriminatory taint of its 2011 maps.” Given the extensive litigation and the District Court’s thorough consideration of the evidence presented, Justice Sotomayor maintained that the District Court did not err – “let alone clearly err” – in concluding that the 2013 legislature had shown discriminatory intent during the districting process.

Richard L. Hasen writes in Slate that the Court has put its thumb on the scales in favor of discriminatory states, and explains some of the case’s implications for future voting rights litigation. The Economist laments that it has not been a good month for voting rights at the Supreme Court, and that this case represents a further loss for voting rights. Joan Biskupic at CNN writes that the Supreme Court’s decisions in Abbott and Husted v. A. Philip Randolph Institute (discussed here) suggest an era of freer reign for states to determine their electoral practices. And few days after the decision in Abbott, the Court issued a per curiam opinion in North Carolina v. Covington, unanimously upholding part of a court-imposed remedial map in a racial gerrymandering case in North Carolina, while holding that other parts of the map were inappropriate.

 ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018 contributed to this post, which was edited and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

Putting SCOTUS confirmation hearings in context

Contemporary Supreme Court confirmation hearings are both exciting and disappointing. They are exciting because they provide a chance to hear directly from the nominee, who otherwise may not be well known. The interested public can learn a bit about the individual’s public personality and intelligence. On the other hand, the hearings are disappointing because the nominee tells us so little about what he or she actually thinks about the law – and especially about the hot-button legal issues of the day. To the contrary, rather than serious conversations about the nominee’s judicial philosophy, the Constitution, and the role of the courts, we get lengthy speeches by senators and bland answers from the nominee.

Yet a spate of recent scholarship (including my own) shows that  Supreme Court confirmation hearings can include important and substantive discussions. Indeed, during the 1980s and 1990s – even after the failed nomination of Judge Robert Bork – nominees and senators engaged in serious discussions of judicial philosophy. Although since 2000, such substance has faded, the history illuminates what we can realistically expect – and what we should demand – from what could be an important and meaningful public event.

Perhaps the most important lesson of history is that the content and conduct of confirmation hearings have changed over time. Although we think of nominees’ testimony as the centerpiece of the confirmation process, for most of the country’s history, Supreme Court nominees did not testify publicly. Justice Harlan Fiske Stone appeared before the committee in 1925 to address allegations related to a political scandal, and Justices Felix Frankfurter (1939) and Robert Jackson (1941) also testified. But it was not until 1955, with the nomination of John Marshall Harlan, that the current practice of routine appearances began.

That timing does not appear to be accidental. The year before Harlan’s nomination the Supreme Court decided Brown v. Board of Education, declaring Jim Crow-era racial segregation of schools unconstitutional. Sen. James Eastland of Mississippi, who became chair of the committee in 1956 – a position he held until 1978 – as well as two other members of the Committee – Sen. John McLellan of Arkansas and Sen. Sam Ervin of North Carolina– were southern Democrats who deeply opposed Brown. They used Supreme Court confirmation hearings to rail against the decision, which they considered a usurpation of legislative power and state authority and an improper judicial “amendment” to the Constitution motivated by the justices’ own policy preferences.

Potter Stewart’s 1959 confirmation hearing is a case in point. While questioning Stewart, McClellan announced that he “wholly disagreed with” Brown and demanded to know what Stewart thought. (Stewart demurred.) Eastland asked Stewart if overruling the separate-but-equal doctrine was “an amendment of the Constitution.” And Ervin, who made a lengthy speech condemning Brown as “a most unfortunate decision from the standpoint of law, Constitutional law in the United States,” explained that the Court “should have turned the clock back to 1868 when the [Fourteenth] Amendment was ratified” to determine the original understanding of the amendment with respect to segregation.

Perhaps even more surprising to modern observers than the controversy over Brown, however, is that during the 1950s and 1960s, most senators on the committee asked very few, if any, questions of the nominees. Segregationist senators dominated the hearings. Between 1955 and 1969, Eastland, Ervin and McLellan, along with Republican segregationist Sen. Strom Thurmond of South Carolina, who joined the committee in the mid-1960s, asked 70 percent of the substantive questions at the hearings, even as they began to shift their emphasis away from Brown and onto the Warren Court’s criminal-procedure jurisprudence and its redistricting and voting-rights cases. Justices Thurgood Marshall and Abe Fortas, for example, were grilled at length about such issues.

But if these particular senators were not concerned about a nominee, the hearing was short and polite. At Justice Charles Whittaker’s 1957 hearing, for example, Whittaker’s testimony, which takes up exactly three pages of transcript, consisted largely of biographical information — he rode a pony to high school “through 6 miles of mud night and morning.” Justice Byron White’s hearing in 1962 lasted a total of 95 minutes, including introductions and enthusiastic testimony from representatives of the American Bar Association and the Colorado Bar Association. At that hearing, none of the segregationists asked the nominee a single question; McClellan did not even attend.

This pattern changed in the 1980s, when the hearings began to be televised. The underlying norms of the hearings shifted, and most senators began to participate actively. Today, of course, every senator on the committee is present for the hearing and asks questions. Every senator gives an opening statement. Nowadays, in fact, the entire first day of the hearing is taken up by these opening statements, along with a statement by the nominee. And although one might wonder whether that particular allocation of time is worthwhile, the current intense attention of senators, media and the public alike is commensurate with the importance and influence of the Supreme Court.

Of course, complaints about confirmation hearings are common. Some people argue that they have become over-politicized, a view that appears to be based on a background assumption that at one time, the hearings focused primarily on nominees’ qualifications and ethics. This assumption is wrong, even if the substantive questions once came from only a small number of senators who were preoccupied by specific issues. There is even hard data. Law professor Lori Ringhand and political scientist Paul Collins, in their excellent book Supreme Court Confirmation Hearings and Constitutional Change, report their findings from a large-scale qualitative and quantitative analysis of the hearings. And they find that senators have always asked questions about substantive areas of law. There was no hazy past in which senators routinely avoided difficult subjects in favor of a gentlemen’s handshake; Whittaker’s and White’s hearings were the exception, not the rule.

Of course, ethics and qualifications are not irrelevant during the hearings. In fact, after Justice Abe Fortas’s failed nomination to become chief justice and his resignation from the Supreme Court in 1969 under an ethical cloud, subsequent hearings focused particularly heavily on ethics and qualifications. From 1955 through 1968, only about a quarter of questions asked focused on ethics, while from 1969 through 1975, almost half did. Indeed, after successfully nominating Warren Burger as chief justice in 1969, President Richard Nixon offered two nominees, Clement Haynsworth and G. Harold Carswell, who were both rejected in large part because of significant concerns about their ethics and qualifications.

Thus, by the time Justice John Paul Stevens testified in 1975, questions about ethics and qualifications were routine. Stevens, then a judge on the U.S. Court of Appeals for the 7th Circuit, was asked about, for example, his recusal practices and about whether he received income from any nonjudicial sources. Some senators also were worried about Stevens’ health, which they discussed in some detail — ironically, given that more than 40 years later, Stevens, although retired, is still with us. And of course, committee members have continued to ask about ethics and qualifications when they deem it appropriate. But it is wrong to conclude that some kind of undue politicization has evicted ethics and qualifications from the primary focus of senators’ questioning.

While some complain that the hearings have veered away from a focus primarily on ethics and qualifications, others lament what they see as less candor by the nominees. More specifically, one current complaint is that nominees refuse to answer important questions. Indeed, that complaint underlies then-Professor Elena Kagan’s famous characterization of the hearings as a “vapid and hollow charade.” Although this complaint has some merit, as discussed below, just as there was no time when ethics and qualifications were all that mattered in the confirmation process, so too was there no time when nominees freely answered all the questions they were asked. To the contrary, nominees have always declined to answer some questions because of an unwillingness to promise how they will vote on particular cases or issues.

Moreover, although many believe that Bork’s failed nomination led to nominees becoming increasingly reticent, the data do not bear that belief out. Ringhand and Collins, as well as political scientists Dion Farganis and Justin Wedeking, have examined the extent to which nominees decline to answer questions. Perhaps surprisingly to many of us, the rate at which this occurs has remained more or less constant over time.

Yet the tone and content of the hearings have changed in the new millennium, and not for the better. Ringhand and Collins recently compared the rate at which nominees refuse to answer questions to the rate at which they offer “firm answers about concrete doctrines and cases.” Beginning in 1987 (with Bork) and through 1994 (with Justice Stephen Breyer), all nominees gave firm answers significantly more often than they demurred.

These observations are consistent with my argument that the hearings held during the late 1980s and 1990s were remarkably substantive. This is not to say that nominees during those years made commitments about how they would rule on contested legal issues. But they did discuss their judicial philosophies, their past writings and their beliefs about the role of judges. To give just two examples: Justice Clarence Thomas talked extensively about his reliance on natural law as, for example, described in the Declaration of Independence, as an important source of information about the Framers’ thinking. And Justice Ruth Bader Ginsburg reiterated her belief that Roe v. Wade had been correctly decided, even as she criticized its reasoning. Specifically, she described the relationship between liberty, privacy and equality and discussed the necessity that government treat women as full human beings, all of which she believed required the outcome in Roe.

But beginning with Chief Justice John Roberts’ hearing (the first one after Breyer’s), nominees have been less consistently willing to have meaningful discussions about the law. Most notably, Ringhand and Collins’ data show that both Roberts and Justice Neil Gorsuch gave firm answers significantly less often than they refused to answer. Gorsuch even hesitated before eventually acknowledging, circuitously, that Brown v. Board of Education was rightly decided.

Such reticence over even the most well-established precedents is, in my view, highly problematic. A Supreme Court nominee should be willing to share his or her most basic constitutional commitments with the senators. That Brown was correctly decided should not be controversial in 2017 or 2018. If the nominee cannot endorse the outcome of that iconic case, the senators – not to mention the American people – need to know that before determining whether the nominee should serve for life on the nation’s highest court. Without such conversations, we suffer a significant loss to a candid and robust public discussion of constitutional values, a discussion that we need now more than ever.

This post first appeared at SCOTUSblog.

Early Takes on the Kavanaugh Nomination

It’s been just over 24 hours since President Trump nominated Judge Brett Kavanaugh for a seat on the U.S. Supreme Court. Here’s a summary of initial reactions.

Image result for kavanaugh

His credentials and experience have been praised. “On paper,” writes Richard Wolf in USA Today, “Kavanaugh may be the most qualified Supreme Court nominee in generations. Akhil Reed Amar, a Yale Law School professor with mostly liberal leanings, wrote a widely discussed opinion piece in The New York Times praising Kavanaugh as a judge who has “wide and deep respect among scholars, lawyers and jurists.” Michael Gerson, who worked with Kavanaugh in the Bush administration, described him as “a man of character, decency and intellectual depth” with “ the mind and temperament of a great Supreme Court justice.”

Conservatives have lauded Kavanaugh’s conservative bona fides. Writing on FoxNews.com, Kelly Shackelford of the First Liberty Institute, a religious liberty advocacy group, declared the nominee’s opinions from the D.C. Circuit “consistently adhered to our founding principles that government exists to protect the God-given rights of the people and that the Constitution exists to prevent government from infringing on the rights it is entrusted to defend.” The pro-life Susan B. Anthony List described Kavanaugh as an “outstanding choice.”

Liberals have been rather less impressed. The Washington Post’s Editorial Board writes that Kavanaugh could “drastically” shift the Court’s ideological balance, and calls upon the Senate to “extract an ironclad commitment that Mr. Kavanaugh will act as a check on the president.” Garrett Epps, in The Atlantic, finds grounds for concern in the nominee’s background. “Kavanaugh has been the creature and servant of political power all his days,” Epps writes. “It would be the height of folly to expect that, having attained his lifetime’s ambition of a seat on the Supreme Court, he will become anything else.”

Writing in The Hill, Dawn Laguens of Planned Parenthood warns, “The balance of the court is at stake—and with Kavanaugh’s nomination, our constitutional right to have an abortion in this country is tipping away from us.” At Vox, Dylan Matthews dives into the nominee’s writings to make the case that Kavanaugh would overturn Roe v. Wade. But “thanks to the perversion of the Supreme Court confirmation process,” write the editors of the New York Times, we’ll never get a straight answer on the nominees positions on Roe or much anything else of importance.

This post was written by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.