Friends, The new Alliance Alert Daily Digest is finally here! You can subscribe to the daily e-mail here: Subscribe to our mailing list * indicates required Email Address * First Name * Last Name *
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.
The National Law Journal: Numbers don’t justify more judicial appointments, so why is Obama pushing? Politics, of course.
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.
Minneapolis Star Tribune (AP): One of the most influential news outlets covering the Supreme Court sets up shop on big decision days not in the pressroom with other reporters, but in the court’s cafeteria. The justices themselves read the award-winning SCOTUSblog, but unlike other media it has no official status in the marble courthouse.
Religion Clause Blog: In Tores v. State of Florida, (FL App., Nov.6, 2013), a Florida state appellate court reversed a 30-year sentence imposed on defendant for sexual battery and remanded for sentencing by a different judge because of religious comments made in imposing the original sentence.
Is the Supreme Court Punting on Controversial Issues? Okla. Coalition for Reproductive Justice v. Cline
PJTV (video): Amy Howe of the SCOTUSBlog joins Michelle Fields to discuss a recent abortion case that almost went to the Supreme Court. The Supreme Court initially indicated it would take the controversial Oklahoma abortion case, and then changed its mind. Click to find out if an abortion case could end up at the Supreme Court.
LifeNews: It will be a sad day in our country when a judge faces disciplinary action for stating a scientific fact during a hearing—but that is exactly what abortion rights advocates want. NARAL Pro-Choice America and RH Reality Check filed a formal complaint against Judge Peter Bataillon with the Nebraska Commission on Judicial Qualifications, in part because he stated from the bench that abortion kills a child.
Rasmussen Reports: A new Rasmussen Reports national telephone survey finds that 39% of Likely U.S. Voters think most judges in their rulings try to make new law they like better. Only 33% believe most judges in their rulings follow the letter of the law.
Talking Points Memo: For the first time, Senate Majority Leader Harry Reid (D-NV) has opened the door — slightly — to reforming the filibuster for judges with the so-called nuclear option if Republicans persist in their mass blockade of President Barack Obama’s top judicial nominees.
Pruitt v. Nova Health Systems 12-1170
NY Times: An amendment to the New York State Constitution raising the mandatory retirement age to 80 for judges on the Supreme Court and on the Court of Appeals went down in defeat in a referendum on Tuesday, handing Chief Judge Jonathan Lippman a stinging rebuke.
The Republic: The Republican party won the biggest political plum on Pennsylvania’s 2013 election ballot — an open seat on the Superior Court — but Democrats won more of the major local offices up for grabs.
Ed Whelan at National Review Online: One peculiarity of the case of Burt v. Titlow that the Supreme Court decided today (and that I discussed briefly here) is that the imprisoned habeas petitioner, Vonlee Nicole Titlow, is a transgender male—i.e., a man who thinks he’s a woman.
Pensylvania Independent: Even though Pennsylvania voters get a chance to vote against sitting Supreme Court justices once each decade, the races are rarely close and justices are usually retained by wide margins. But this year, Chief Justice Ron Castille and Justice Max Baer could be in for a close call.
Emily Bazelon and Dahlia Lithwick at Slate: It’s been a day of body blows for reproductive rights. On Thursday night, the U.S. Court of Appeals for the 5th Circuit reversed a lower court’s decision to temporarily block a provision of the omnibus Texas abortion law that requires doctors performing abortions to have admitting privileges at a local hospital.
Alex Seitz-Wald at The Atlantic: America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years.”
Charleston City Paper: According to state law, justices on the South Carolina Supreme Court have 60 days to file their decisions from the time a term ends after hearing a case. But ask any lawyer who’s had a case before the High Court if the turn-of-the-century law is always followed, and they’ll likely laugh in your face.
Ilya Somin at Volokh Conspiracy: Supreme Court Justice Anthony Kennedy recently explained that he does not perform marriages because of concerns about the implications for federalism [HT: Josh Blackman] . . .
Washington Examiner: Justice Department attorneys are advancing an argument at the Supreme Court that could allow the government to invoke international treaties as a legal basis for policies such as gun control that conflict with the U.S. Constitution, according to Sen. Ted Cruz, R-Texas.
Blog of the Legal Times: The Senate Judiciary Committee today advanced the nomination of Judge Robert Wilkins for the U.S. Court of Appeals for the D.C. Circuit. The committee voted 10-8 along party lines . . .
George F. Will at Washington Post: “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
AP: Senate Republicans blocked President Barack Obama’s nominees to lead an influential federal court and a housing agency on Thursday, despite Democratic warnings of a return to last summer’s partisan brawl over who wields power in the Senate.
AP: Republicans accused Democrats of trying to turn an influential federal court into a rubber stamp for President Barack Obama’s policies as a showdown approached over Senate confirmation for a nominee to that court.
Jess Bravin at the Wall Street Journal: Supreme Court Justice Anthony Kennedy said he was surprised the issue of gay marriage came to the high court so soon, before the nation had time to become more accustomed to the idea.
National Review: While the Left tries to make President Obama’s D.C. Circuit appointments be about, in Nan Aron’s words, “stresses on the D.C. Circuit,” “the importance of its legal mission,” and constitutional appointment powers, as Carrie argued yesterday, they’re actually about “facilitat[ing] the president’s aggressive political agenda.”
Blog of the Legal Times: The judicial hopefuls want to replace Judge Kathryn Oberly after she steps down Dec. 15. The local group that vets judicial applicants, the D.C. Judicial Nomination Commission, will recommend three lawyers to the White House.
AP: Retired Justice Sandra Day O’Connor has officiated at the wedding of a gay couple at the Supreme Court, at least the second such ceremony at the court since its June decision that expanded federal recognition of same-sex marriage.
Milwaukee Sentinel Journal: The state Supreme Court would elect its chief justice and drop the 124-year-old practice of awarding that post by seniority, under a constitutional amendment moving quickly through the Legislature.
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. More information here.
ABA Journal: At issue in Hunter v. Virginia State Bar (PDF) was a blog maintained by Horace F. Hunter, one of the two attorneys at Hunter & Lipton in Richmond. The noninteractive blog, This Week in Richmond Criminal Defense, which is accessible through the firm’s website, discussed a variety of legal issues and cases. But most of the posts described cases in which Hunter obtained favorable results for clients.
National Review: And now they are gearing up to fight President Obama’s court-packing plan on the D.C. Circuit. In a letter sent to Senators this morning, a group of attorneys general . . . urged senators to “reject President Obama’s nominees to the D.C. Circuit, and to join your colleagues in allocating those judicial resources where they are needed by passing S.699, the ‘Court Efficiency Act of 2013.”