Journal-Sentinel: State Supreme Court Justice Patience Roggensack contacted Republican state senators urging support of an amendment to the state constitution that could put her in charge of Wisconsin’s high court.
Blog of the Legal Times: As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama’s appointments.
AP: Fresh from shackling the traditional blocking ability of the Senate’s minority party, Democrats are ready to muscle through President Barack Obama’s nominees for pivotal judgeships and other top jobs.
Politico: The nominees that top Democrats are racing to approve are: Janet Yellen to lead the Federal Reserve, Jeh Johnson to lead the Department of Homeland Security, Rep. Mel Watt (D-N.C.) to oversee the Federal Housing Finance Agency and D.C. Circuit judicial nominees Patricia Millett, Nina Pillard and Robert Wilkins.
Tom Goldstein at SCOTUS Blog: Things get more complicated when the Court grants review in two consolidated, related cases, but the interests of the respective petitioners and respondents don’t correspond — for example, if the government is the petitioner in one case but the respondent in the other. How should the case be briefed then? That issue has come up in the two cases the Justices have agreed to hear presenting challenges to the “contraceptive insurance” Rule of the Department of Health and Human Services under Affordable Care Act: No. 13-354, Sebelius v. Hobby Lobby Stores (the government is the petitioner, the plaintiffs are the respondents); and No. 13-356, Conestoga Wood Specialties v. Sebelius (in which the roles are reversed).
Ken Klukowski at Breitbart: Winning a battle that costs you a war is no victory. The silver lining from President Obama’s and Senate Democrats’ unprecedented power grab last week is that now a conservative Republican president can appoint a Supreme Court that will restore the Constitution to its historical place in our nation’s life, revitalizing limited government and safeguarding fundamental rights.
Real Clear Politics: Thank you, Mr. Chairman. The danger is quite severe. The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch.
McCall: The Easton Area School District on Tuesday urged the U.S. Supreme Court to consider whether a ban on the phrase “I ♥ boobies!” violates the First Amendment. In a 217-page filing, district solicitor John E. Freund contends a federal appeals court overstepped its bounds in deciding that the popular rubber wristbands worn by two middle-school girls are appropriate for school.
The Hill: Nonetheless, allies of the White House predict a “good chunk” of their priority nominees will clear before the Senate concludes its final two weeks of work in 2013. Here are the nominations Obama wants the most.
Public Information Office of the Ninth Circuit: Internet users will soon have a seat in the courtroom when exceptionally important cases are argued before the United States Court of Appeals for the Ninth Circuit.
Adam Liptak at NY Times: Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.
Volokh Conspiracy: Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.
LifeNews: “Early in the 2010 election cycle WyWatch warned voters that then Gubernatorial Candidate Matt Mead was not pro-life,” Becky Vandeberghe, the chair of the WyWatch PAC told LifeNews today. “Today he solidified that perception in thousands of pro-life voters’ minds when he publicly announced he has appointed previous NARAL Attorney and advocate, Kate Fox to the Wyoming Supreme Court.”
Jeremy W. Peters at NY Times: Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.
Robert Barnes at Washington Post: Instead of the usual 12 cases that the court has been hearing in recent years during its two-week block of oral arguments, the justices have only seven scheduled for what the court calls the February sitting .
Detroit Free Press: But the Michigan Attorney General’s Office is arguing that immunity shouldn’t stop its suit to block the Bay Mills tribe from opening a casino outside tribal lands, because the federal government has, so far, declined to act.
Bloomberg: One day I hope some young turk’s lawsuit complaining about an unpaid internship makes it all the way to the U.S. Supreme Court, because there it would put a spotlight on a great irony: The Supreme Court has unpaid interns, too.
Ed Whelan at National Review Online: There is in fact no reason to believe that any of the nominees is genuinely a moderate. For example, Patricia Millett, supposedly the most moderate of the three, is a member of the board of trustees of the left-wing Lawyers’ Committee for Civil Rights Under Law.
Washington Post: White House aides and their allies said they have yet to finalize plans for how to push through another 186 executive nominees and 50 judicial nominees awaiting confirmation in the Senate.
Washington Post: The gradual diminishment of the filibuster is inevitable now that Democrats have set off the “nuclear option,” experts say, and that could have much broader ramifications down the line. “From here on in, the filibuster is likely to be eroded, bit by bit,” Michael Mezey, political scientist at DePaul University, said Friday in an email.
Bipartisan approval lends a sense of balance to the judiciary | J. Harvie Wilkinson III at Washington Post
J. Harvie Wilkinson III at Washington Post: It is far beyond my purview to comment on the impact last week’s events will have on the Senate as an institution, but the impact on the institution of the federal courts will, over time, be severe. A return to bipartisan understandings in the judicial nominations process would help to keep the courts above political rancor and would serve this country well.
Wall Street Journal: The federal judiciary, already ideologically polarized over contentious legal questions, may see the divide grow deeper after the Senate voted Thursday to permit confirmation of lower-court nominees by simple majority vote.
When the Swing Justice Doesn’t Swing: Rumors of Anthony Kennedy as a moderate on abortion are wildly overblown.
David S. Cohen at Slate: The so-called swing justice, Anthony Kennedy, has voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court since he became a justice.
Blog of the Legal Times: Sherry Trafford of the Public Defender Service for the District of Columbia and Steven Wellner, an administrative law judge in the D.C. Office of Administrative Hearings, were nominated last night.
Will Baude at Volokh Conspiracy: What has the Senate actually done so far, with respect to the filibuster? Some of the reports of what happened today say that the Senate has adopted “new rules” eliminating the filibuster for some purposes. I’m not sure that’s true, in a formal sense. As I understand what happened, the Senate voted to ignore the current filibuster rule (on constitutional grounds). It did not vote to change it.
Jonathan Adler at Volokh Conspiracy: In May 2005, the NYT editorial board insisted that the filibuster of judicial nominations was “part of the Senate’s time-honored deliberative role and of its protection of minority rights.” Invocation of the “nuclear option,” the Times insisted, would “desecrate” this tradition. “The damage would be incalculable,” the Times warned.
The Hill: “This has been escalating for a long period of time and it was time to stop it and that’s what we did this morning,” Harkin said. “Now we need to take it a step farther and change the filibuster rules on legislation.”
The Hill: The heart of this action is directed at packing the D.C. Circuit because that is the court that will review the lawless behavior of the Obama administration implementing ObamaCare,” he said.
NY Times: “This is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country,” declared Senator Lamar Alexander, Republican of Tennessee. “It’s another raw exercise of political power to permit the majority to do whatever it wants whenever it wants to do it.”
Washington Post: New Jersey Gov. Chris Christie (R) will ask the Supreme Court to allow sports gambling in state casinos after a federal appeals court said late Friday it would not rehear the case.
USA Today: That’s because the little-known appeals court has vast jurisdiction over the federal government’s powerful bureaucracy — its myriad departments and agencies, and the thousands of regulations and executive actions that get churned out without much fanfare.
Fox News: Majority Leader Harry Reid, moving quickly following days of speculation, used the so-called “nuclear option” to pass the change. Typically, major changes like this take 67 votes, but he did it with just a simple majority.
Jonathan Adler at Volokh Conspiracy: In February 2003, Miguel Estrada became the first ever nominee to a federal appellate court to be successfully filibustered when a majority of Senate Democrats voted against cloture on his nomination. Estrada had been nominated to fill on a seat on the U.S. Court of Appeals for the D.C. Circuit, and was widely seen as a potential Supreme Court nominee.
TIME: Senate Democratic leadership aides tell TIME that the move is preemptive; when the Republicans eventually take over the Senate, the aides assert that the Republicans will push the button. “That’s just pure fantasy,” says Cornyn.” But, he adds, “Once you decide that a simple majority of the Senate can change the Senate rules, then that’s a two-way street.”
Michael Moreland and Patrick Brennan at Public Discourse: Governor Jerry Brown’s recent veto of a California bill seeking to extend the statute of limitations for certain sex abuse cases reminds us of a basic principle of law: like cases must be treated alike.
Tonya Kowalski at Appellate Advocacy Blog: While many factors go into writing a truly persuasive brief, the best and earliest opportunity to convey the client’s case theory is the issue statement. In a recent Seventh Circuit appeal involving religion and the new federal health insurance laws, the briefs provide instructive examples of how to take fuller advantage of that opportunity—or not.
Ed Whelan at NRO Bench Memos: I will note, though, that I don’t see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
National Review Bench Memos: The Washington Post reports that Senator Reid is set to invoke the nuclear option before Thanksgiving . . . I hope he does conservatives the favor. To quote Senator Grassley, “There are a lot more Scalias and Thomases that we’d love to put on the bench.
Blog of the Legal Times: Supreme Court Justice Sonia Sotomayor said Tuesday night that the lack of diversity in race, gender and background poses a “huge danger” to the judiciary, both federal and state. She also slammed the legal profession for perpetuating the glass ceiling, asserting that the number of minority partners in law firms is “dismally small.”
Conscience is not simply self-will, it is subject to the moral law | Robert George at Public Discourse
Robert George at Public Discourse: Conscience and Its Reviewers: A Response to Kevin Doyle
Kevin Doyle’s review of Robert George’s new book is based on a fundamental error. Conscience, rightly understood, is not simply self-will. Rather, conscience identifies one’s duties under the moral law.
Ken Klukowski at Breitbart: When asked last week how he ended up on the Supreme Court of the United States, Justice Clarence Thomas said, “It was totally Forrest Gump,” in a revealing—and hilarious—on-stage interview at last week’s Federalist Society National Lawyers Convention.
Karen Sloan at National Law Journal: But when it came making offers, candidates with J.D.s from top schools dominated. They accounted for 68 percent of applicants and 82 percent of those hired. Drilling down even further, candidates with J.D.s from Harvard Law School, Yale Law School and Stanford Law School—highly prestigious schools known for turning out large numbers of future professors—together were 27 percent more likely to land jobs than those from all other law schools.
The Hill: Democrats warned that changes to the Senate’s practices through a ruling of the chair sustained by a simple majority vote would destroy the institution. “I would never, ever consider breaking the rules to change the rules,” Reid told colleagues in April of 2006 during the Senate debate.
Politico: Senate Republicans continued rejection of President Barack Obama’s judicial nominees threatens “the integrity of the Senate and the future of our country,” Senate Majority Leader Harry Reid said Tuesday.
The Hill: Senate Republicans on Monday blocked a third nominee of President Obama’s to the D.C. Circuit Court of Appeals. In a 53-38 vote, the Senate failed to get the 60 votes necessary to break a Republican filibuster and move to a final confirmation vote on nominee Robert Leon Wilkins.
Christian Science Monitor: The US Supreme Court on Monday refused to consider whether the NSA, in collecting and storing information about the phone calls of virtually every American, overstepped its authority under the law.
Washington Post Editorial: Senate Republicans on Monday are likely to take a vote that is unfair, unwise and bad for the functioning of the government. Again.
Politico: The Senate is careening down a path toward yet another war over the filibuster. With Republicans set on Monday to block Robert Wilkins’s nomination to the D.C. Circuit Court of Appeals, both parties’ positions appear hopelessly intractable.
Washington Post: In front of an adoring crowd of 1,300 conservatives, being gently interviewed by Judge Diane S. Sykes of the U.S. Court of Appeals for the 7th Circuit in Chicago, the 65-year-old Thomas was full of “love”: for his colleagues, for his law clerks, for his life.
Blog of the Legal Times: The commission is accepting public comments on the senior judges through Jan. 3, 2014. Senior judges are reviewed every four years, or ever two years after age 74; associate judges sit for 15-year terms.
The Hill: Members passed the Lawsuit Abuse Reduction Act, H.R. 2655, in a 228-195 vote. Democrats opposed the bill during debate, and that showed up in the final vote, when just three Democrats supported the bill.
Paul O. Carrese at Public Discourse: The French philosopher Montesquieu’s principle of moderation taught the founders to reconcile Lockean liberalism, classical republicanism, and Christianity—a balance we could use today.
Blog of the Legal Times: In a speech today at the Federalist Society’s National Lawyers Convention, Senator Ted Cruz (R-Texas) attacked the Obama administration’s record before the U.S. Supreme Court, characterizing the Justice Department’s positions as “radical advocacy for unchecked federal authority.”
SCOTUS Blog: In reply, U.S. Solicitor General Donald B. Verrilli, Jr., and other Justice Department lawyers argued that the Circuit Court decision is less sweeping than the NRA has said. Even so, the new brief argued, the Circuit Court “would have been justified in rejecting [this] Second Amendment challenge based on historical evidence indicating that restrictions on the purchase of firearms by those under 21 have long been viewed as consistent with the Second Amendment” and similar provisions in state constitutions.
Detroit News: Gov. Rick Snyder signed into law Tuesday a controversial bill that makes major changes to the way Michigan residents can sue state government, including his administration.
Richard Meyers at Mirror of Justice: On November 7-8, 2013, Washington & Lee University School of Law hosted a conference marking the 40th anniversary of Roe v. Wade. The conference, Roe at 40: The Controversy Continues,http://law.wlu.edu/lawcenter/page.asp?pageid=1620 , was largely organized by Sam Calhoun. The conference was co-sponsored by University Faculty for Life, ACLU of Virginia, Virginia NOW, the Frances Lewis Law Center, the Washington and Lee Law Review, and the Provost’s Office of Washington and Lee University.
Federalist Society: The Federalist Society’s 2013 National Lawyers Convention is scheduled for Thursday, November 14 through Saturday, November 16 at the Mayflower Hotel in Washington, D.C. The topic of this year’s convention is: Textualism and the Role of Judges.
David Bernstein at Volokh Conspiracy: But there is a reason for this. The faculties at elite law schools are able to define what was “mainstream” in constitutional law simply by who they hire to join them.
The Hill: Senate Majority Leader Harry Reid (D-Nev.) is short of the 50 votes he would need to advance President Obama’s stalled judicial nominees via the “nuclear option,” according to sources who have advocated for filibuster reform.
Religion Clause Blog: In the case in which plaintiffs are suing over contracting hepatitis C from a doctor covered by the Health Plan HMO, the judge stepped out after plaintiffs claimed that the attorney representing the HMO held a position of authority over the judge in the Mormon Church.
National Review Bench Memos: On Wednesday, the U.S. Supreme Court will hear arguments in a case involving the rights of employees targeted in a unionization drive. Unions, plagued by decades of declining membership, obviously have a keen interest in the outcome of Unite Here Local 356 v. Mulhall. So, too, does the Obama administration, which filed a strong brief on behalf of organized labor that told the Court, in essence, “nothing to see here.”
AP: Senators planned to vote on Obama’s selection of Georgetown University law professor Cornelia Pillard to fill one of three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit.
Robert Barnes at Washington Post: There were 234 winners at the Supreme Court last week: The justices decided not to take their cases . . . The justices have almost total discretion over their docket, and last term they picked 77 cases for oral arguments out of about 7,500 petitions filed.
Blog of the Legal Times: For the second year in a row, Jones Day has hired six law clerks who worked for Supreme Court justices in the term just ended. “It’s a wonderful kind of deja vu,” hiring partner Beth Heifetz said.