#26. To: Hank Rearden, nolu chan, Vicomte13, tpaine, Liberator (#20)
Rumor has it the DL is sicker than she admits.
If only... But let's move on to who is topping the list to replace Kennedy.
Per Nice Deb, a Bloomberg reporter says the top choice is Judge Brett Kavanagh.
Judge Brett Kavanaugh is a top contender to succeed Kennedy, per a U.S. official who spoke on the condition of anonymity. https://t.co/nUxpAlS7ZF— Greg Stohr (@GregStohr) June 27, 2018
If that name sounds somewhat familiar -- last week a district court ruled that the CFPB was unconstitutional.
In doing so, the judge ignored the main opinion of a decision from another jurisdiction and instead adopted the reasoning of the dissent which declared the CFPB was unconstitutional.
The author of that dissent? Judge Brett Kavanagh.
And why did Kavanagh reach that decision? Glad you asked.
Courts have found the law creating the CFPB unconstitutional in that it creates a "Director" running it, who is, in theory, a member of the Executive Branch, but then puts that Director unconstitutionally beyond the reach of the actual Executive, the President, stating that he can only be fired for cause.
One court reviewing this en banc chose to say that part is unconstitutional, but it can be "severed" from the rest of the law, and the law just rewritten by judge's fiat to say the Director can be fired by the president, like any other executive officer, for any reason.
Actually, a clarification: I think the rule is that members of a committee exercising executive power can be made fire-proof (or fireable only for cause), but you can't vest that kind of unfireable power in a singular head, as a Director is.
But one district judge says, "Nah, bro," and finds that that the can-only-be-fired-for-cause provision is part of the heart of the CFPB, and therefore cannot simply be severed/written out of the bill.
As that part is unconstitutional, and cannot be severed from the bill creating the CFPB, the whole law is unconstitutional, and the CFPB is unconstitutional and null and void itself. It strikes the CFPB as a party from the suit (against various defendants, including the NFL), finding it simply has no authority to act at all, in any capacity.
Obviously, a jurist from Trump's list who is that willing to outrage the liberal establishment would make an attractive hard-Right choice for Trump. Fauxcahontas would be in full war paint, ready to scalp him since CFPB is her baby.
His vote will be needed for confirmation. No justice would join the Court by voting for himself. And it would thin the Senate ranks further. After Trump lost Sessions' safe AL seat via Strange and Moore, he won't go for anything that makes it harder for the Senate GOP.
I had been worried about voter turnout in the fall elections since the low-info voters who supported the prez when elected all tend to disappear and the other party picks up lots of seats in any president's first midterm.
I thought that only a major gun massacre in the fall and consequent screams by the Left for a big gungrab could arouse the voters enough to hold off Pelosi as Speaker and keep control of the Senate.
Clearly, this confirmation will be conducted more as a central GOP political issue to rouse the voters rather than as a regular judicial confirmation.
Trump got a lot of reluctant votes just for the judicial appointments. A lot of people made it clear they couldn't stand Trump but wanted to deny Dems any court appointments. This is Trump's chance to score a midterm victory with exactly that issue to bring out those reluctant voters again.
Barrett is youngest, under 50. She got attacked for being too Catholic by Feinstein, she recently had a full vetting by the FBI and Dems and libmedia.
Looks good on paper but perhaps not experienced enough. Also there will be resistance to promoting her from her current court of appeals (a very high honor) and then appointing her again so soon to a higher court like USSC.
I think the GOP may go for a strong conservative, more bold and less circumspect about it than Gorsuch. It would likely cause a Dem meltdown and provide a lot of fodder for the fall midterms. Turnout, turnout, turnout. Especially those reluctant voters who voted for Trump just for the judges.
This is probably going to be the most politicized appointment to the Court in our history. And the 2018 election may end up being all about this justice, far more than the Dem attempt to do the same with the Merrick Garland nomination in 2016.
Barrett is youngest, under 50. She got attacked for being too Catholic by Feinstein, she recently had a full vetting by the FBI and Dems and libmedia.
Looks good on paper but perhaps not experienced enough.
Limited experience on the bench. Whatever experience she has on the bench is that much more than Mike Lee. I would favor someone with a proven track record on the bench. Another Gorsuch would do fine.
Another female mentioned is:
Allison Eid, 10th Circuit (2017), Trump nominee to succeed Gorsuch, on Trump list, Colorado Supreme Court (2006-17), clerked for Clarence Thomas (1993-94).
Another possibility is Amul Thapar, Indian (India) ethnicity, 6th Circuit (2017), U.S. District Court, Eastern District Kentucky (2008-17), on Trump's list.
Also Thomas Lee, Associate Justice Utah Supreme Court (2010-present). Mike Lee's older brother. On Trump's list.
Wikipedia:
In his time on the court he has been a prolific writer, authoring over a quarter of majority opinions on a five-member court, and frequently issuing concurring or dissenting opinions. Lee is a pioneer in law and corpus linguistics—the application of corpus linguistics to determine ordinary meaning in statutes—being the first American judge to do so in an opinion.
[...]
A 2016 paper written by Jeremy Kidd of the Mercer University Walter F. George School of Law and others attempted to measure the "Scalia-ness" of various potential nominees to the Supreme Court to fill the seat left vacant by Justice Antonin Scalia's death. The study created a "Scalia Index Score" combining the various measures of "Scalia-ness," and Lee scored highest. The study found that Lee was the most likely to endorse or engage in originalism in judicial opinions, was second most likely to cite Scalia's non-judicial writings in opinions, and the third most likely to write separately when not writing the majority opinion.[14] The study was updated again in 2018, adding new variables and more names, and Lee again scored the highest.
In a 2016 article, Professor John McGinnis of the Northwestern University School of Law argued that Lee was similar to Scalia in being "capable of pressing the intellectual case for following the Constitution as written" because of Lee "has pioneered the application of corpus linguistics to law," and further wrote that if elevated to the U.S. Supreme Court, "Lee would create a transmission belt from the best work of originalists in the academy to the Supreme Court."
Hannah Clayson Smith, writing in the National Review, praised Lee as a possible successor to Scalia because of Lee's similar jurisprudential style to the late Justice, but noted that with respect to Lee's views on judicial precedent, "Justice Lee is more like Justice Thomas than like Justice Scalia." Smith noted that Lee (like Thomas) has repeatedly advocated for overruling precedent that he views as "contrary to the original meaning of the Utah constitution," even if precedent takes a different approach.
There is someting to be said for a prolific writer from the bench with a lot of Scalia-ness.
As for people with much experience on the Federal bench, anyone nominated between Jan 1989 and Jan 2017 was nominated by either a Bush, a Clinton, or an Obama. That could make recent Trump appointees from State benches look attractive. Their bench history would be better known to the Trump administration and the Federalist Society (advising Trump) than the general public. Once someone is named, their bench history would be scrutinized in a hurry.
Limited experience on the bench. Whatever experience she has on the bench is that much more than Mike Lee. I would favor someone with a proven track record on the bench. Another Gorsuch would do fine.
In hindsight, they should have gone with Hardiman first, then gone with Gorsuch for this second seat. But hindsight provided us no guides at the time and Gorsuch whet the voters' appetite for more. And probably helped Kennedy decide to quit now.
Like you, Trump's judge team seems to value those with a record on the bench, more than some undocumented newbie.
Like you, Trump's judge team seems to value those with a record on the bench, more than some undocumented newbie.
Justice Thomas is an example of a justice who had very limited judicial experience when appointed to the Supreme Court. He is famous for not asking questions in oral argument, and once went over ten years without asking a question. Such presumably unforeseen behavior must limit his influence on the Court. I believe Trump wants justices who are forceful in oral argument and in written opinions, and who will influence the Court.
For a well-known dissenting opinion by Kavanaugh, see Seven-Sky v. Holder where he wrote a lengthy opinion arguing against Obamacare. Kavanaugh's dissent starts at page 39.
