From the NYT: Trump’s Supreme Court List: Ivy League? Out. The Heartland? In.

All current members are from Harvard, Yale or Columbia. That seems likely to change.

- Click here for the article.

If the list has a main theme, it is that there are plenty of good judges who went to law school at places like Notre Dame, Marquette, the University of Georgia and the University of Miami.

About half of Mr. Trump’s candidates sit on state supreme courts, and almost all those who sit on federal appeals courts do so in the heartland. (The exception is Judge Margaret A. Ryan of the United States Court of Appeals for the Armed Forces, in Washington.)

The résumés of the justices currently on the Supreme Court, by contrast, reflect a legal profession that is deeply hierarchical, obsessed with credentials and dominated by lawyers on the two coasts. Mr. Trump’s list, like his campaign, is a revolt against the elites.

At the same time, Mr. Trump’s candidates are, unsurprisingly, committed judicial conservatives. Mr. Trump credited two leading conservative policy groups — the Heritage Foundation and the Federalist Society — with helping to draw up his list.

“You had an awful lot of conservatives during the campaign who were incredibly skeptical, to put it mildly, about Donald Trump,” said John G. Malcolm, a Heritage Foundation official who suggested a number of names that appeared on the list. “But they certainly cared a lot about the Scalia vacancy and the direction of the court. And that list was a very, very sober list, and it was greatly reassuring.”

The list is a good reflection of Mr. Trump’s dual priorities, said William M. Jay, a lawyer with the firm of Goodwin Procter and a former law clerk to Justice Scalia.

“It was consistent with the message he was trying to send: that he was not going to be naming establishment choices but that the establishment might well be happy with the people he chose from Alabama and Iowa and places like that,” Mr. Jay said.

The top priority for conservatives, Mr. Malcolm said, was to avoid another disappointment like Justice David H. Souter, who was appointed by President George Bush in 1990 but whose voting record on the Supreme Court turned out to be decidedly liberal.

What happens to the Supreme Court after the election?

Some - not all - Republican Senators promise to block all nomination to the court if Clinton wins.

- ScotusBlog offers the following thoughts.

At Reuters, Lawrence Hurley reports that several “intriguing scenarios could unfold after Tuesday’s U.S. election to break the deadlock over filling a Supreme Court vacancy that has provoked a bitter nine-month standoff between President Barack Obama and Senate Republicans.” Burgess Everett reports in Politico that Republican Sen. David Perdue has called “plans for a unilateral blockade” of Supreme Court nominations if Hillary Clinton is elected tomorrow a “’dereliction of duty.’”At Slate, Dahlia Lithwick breaks down the Senate Republicans who have spoken out recently about the possibility of a blockade, into “two distinct teams,” listing the members of what she terms “Team Obstruction” and “Team Responsible Governance,” and hoping that the latter “team wins the day.” At Think Progress, Ian Millhiser contends that a blockade would precipitate a “constitutional crisis.” But in an op-ed in The Hill, Chris Bryant contends that an eight-member court offers advantages, observing that “the Justices are obliged to cooperate and driven to rule on narrow grounds, disposing of the actual cases that come before them while refraining from sweeping pronouncements,” and suggesting that this enforced moderation promises “in turn to diminish, over time, the intense divisiveness currently characterizing Supreme Court nominations.”

In a New York Daily News op-ed, Rick Hasen argues that the election constitutes “an all-out ideological war over the future of the Supreme Court.” Additional commentary on the court and the election comes from the editorial board of The New York Times, which argues that in “the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake.” More pleas to keep the Supreme Court nomination process free from partisan politics come from the editorial boards of the Chicago Sun-Times and the Boston Globe, and the Walla-Walla Union-Bulletin. In an op-ed for Bloomberg, Jonathan Bernstein argues that if “there’s ever any hope for effective conservative government in the U.S., the first job is to reclaim the Republican Party for conservatives who actually try to do the hard work of governing.”

From the NYT: Obama to Nominate Merrick Garland to Supreme Court

- Click here for the article.

President Obama on Wednesday will nominate Merrick B. Garland as the nation’s 113th justice, according to White House officials, choosing a centrist appeals court judge widely respected even by Republicans in hopes his choice will be considered by the Senate.

In choosing Judge Garland, a well-known moderate who has drawn bipartisan support over decades, Mr. Obama was essentially daring Republicans to press their election-year confirmation fight over a judge many of them have publicly praised and who would be difficult for them to reject, particularly if a Democrat were to win the November presidential election and they faced the prospect of a more liberal nominee in 2017.

For more on Garland:

- Wikipedia: Merrick Garland.
- Scotusblog: Afternoon round-up: President nominates Garland to Supreme Court.
- Vox: Merrick Garland is President Obama's choice to replace Antonin Scalia on the Supreme Court.

From the NYT: Before Scalia’s Death, a Clash Between G.O.P. and Obama Over Appellate Judges

Checks and balances, and the struggle over the future of the Judiciary.

- Click here for the article.

The vow by Senate Republicans to block whomeverPresident Obama nominates to fill the sudden vacancy on theSupreme Court presages a prolonged election year struggle, but the clash is less a new front against the White House than an escalation of a battle that had begun at the appeals court level before Justice Antonin Scalia died.

Since Republicans took control of the Senate in January 2015, the process that would enable Mr. Obama to fill vacancies on the 12 regional federal courts of appeal has essentially been halted. Mr. Obama has managed only one appointment because Republican senators have refused to sign off ahead of time on nominees for judgeships in their states — a traditional step before a president makes a nomination.
In the weeks before Justice Scalia’s death, influential conservativegroups and commentators called on Senate Republicans to ensure that Mr. Obama appointed no more appeals court judges.

Among those commentators was Ed Whelan, a former clerk to Justice Scalia and a prominent commentator. He said in an interview Monday that conservatives could not compromise over any appointments to the upper ranks of the judiciary — including the appeals courts, which get the last word on matters the Supreme Courtdoes not review and often serve as a breeding ground for future justices.

From the NYT: The Endless Battle Over Judicial Nominees

The author tests the idea that Obama's judicial appointees have been treated worse than W. Bush or Clinton. He finds the record mixed.

First he points out why a controversy even exists over these nominations: 

Judicial nominations tend to be drawn-out, process-heavy affairs, as do the trials and appeals over which federal judges ultimately preside. Yet in the last few years alone, federal judges have shaped policy on climate change, health care, voting rights, labor relations, contraception, gun control and campaign finance, among other issues. Congressional action may get the bigger headlines, but federal judges often have the last word.

He then points out that the picture varies depending on whether the appointment is for a district court, or a circuit court judge.

. . . Mr. Obama has been roughly as successful as his recent predecessors in getting his circuit court nominees confirmed. He has placed a handful fewer judges because he has nominated fewer. His fifth-year failure rate (14 percent of nominees not confirmed) is actually somewhat lower than Mr. Bush’s (22 percent) and Bill Clinton’s (21 percent).

. . . The district courts, where federal trials occur, are a different story. There, Democratic presidents really have had a harder time winning Senate confirmation for their nominees.

The Senate failed to confirm only 3 percent of Mr. Bush’s district court nominees through June of his fifth year in office (and 1 percent by the end of his presidency). The fifth-year failure rate for Mr. Clinton was 11 percent, and it has been 8 percent for Mr. Obama. If every recent president had a confirmation rate as high as Mr. Bush’s, Democrats might have placed 25 more trial judges on the federal bench.

The difference is especially notable, legal experts say, because Democratic presidents have generally avoided nominating passionate liberals, while Mr. Bush did not shy away from putting strong conservatives in the mold of Justice Antonin Scalia on appellate courts.

Republicans, in other words, have played a tougher brand of politics with federal trial courts. Depending on one’s perspective, that strategy is more partisan or more successful — or both.

He finds that vacancies in trial courts happen mostly in states with two Republican Senators. 

From The Hill: Labor fight one front in GOP war

The Hill describes the strategies congressional Republicans are using to thwart President Obama's ability to both govern and influence the judiciary through appointments. 2305's might fuind these strategies reminiscent of this semester's Ornstein book. It shows how a concentrated disciplined minority can reign in the majority, both involve preventing nominees of executive agencies and the courts from going forward. Their principle focus is on limiting the National Labor Relations Board and the DC Circuit Court.

Just as GOP filibusters have stalled President Obama’s legislative agenda in the Senate, the party is pursuing a parallel strategy of preventing the administration from governing by blocking nominees for boards and agencies.

. . . The NLRB, along with the Consumer Finance Protection Bureau and appellate courts, is a key target for the GOP’s cynical — but successful — strategy of negating the American people’s decision to twice elect a liberal Democrat as president. Republicans are trying to deny him the control he should rightfully have over who should run government agencies.

Destroying the NLRB is only a secondary effort in the overall GOP strategy.

The more audacious move is to choke off the president’s power to put people of his choosing on the federal courts.

There are now 17 appeals court vacancies and Republicans in the Senate have blocked confirmation votes for six nominees.

That strategy is so brassy that Sen. Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, has written a bill to cut the number of seats on the D.C. Circuit from 11 to eight. His clear intent is to stop Obama and the Democrats from ever having a majority on the court.

Blocking the second highest court in the nation from properly functioning is a double win for the GOP. Not only do the Republicans keep the White House nominees off the court but they are also halting rulings on the activities of federal agencies. Without court decisions to back them up, the agencies can be blocked at any turn by threats of litigation.

More on the filibuster against Judge Halligan

There are four vacancies on the DC Circuit Court of Appeals and Senate Republicans have been able to prevent President Obama from filling any of them. Democrats are strategizing to figure out how to respond.

From the NYT:

A fresh feud over federal judgeships has again begun to agitate the Senate, with Republicans so far blocking President Obama from filling any of the four vacancies on the nation’s most prestigious and important appeals court.

After Republicans this week filibustered the nomination of Caitlin J. Halligan of New York to the United States Court of Appeals for the District of Columbia Circuit, Democrats quickly began discussions over how to respond. One possibility is for Mr. Obama to make several simultaneous nominations, in effect daring Republicans to find specific objections in multiple instances. Democrats say Republicans would be hard pressed to come up with legitimate reasons to disqualify all four.

“We need to design a strategy to counter the Republicans, and we are going to need the president,” said Senator Tom Udall, Democrat of New Mexico. “Rather than putting just one up, we should put before the Senate all four and expose what is happening here.”

If Republicans were to continue to steadfastly block a series of appeals court nominees, Democrats say they might then have justification to revisit Senate rules and claim new power to thwart filibusters.

Robert Bork, RIP

Judge Bork's failed nomination to the Supreme Court is held by many political commentators to mark a change in the political landscape in Washington. Bork was already a controversial figure - as a member of the Nixon Administration he fired the man appointed to investigate Watergate - when he was nominated to the court by President Reagan. He was an unusually vociferous conservative nominee. Most previous nominees has been less so, they may have leaned to the left or right, but the pursuit of an ideological vision was not their primary objective.

But his overt criticism of the liberal direction of the court over the previous decades - and the decisions in cases like Brown and Griswold - galvanized liberal opposition to him and led to his defeat. The term "borking" was coined to refer to this process. This process has become more common since then. So his defeat has been argued to be a factor leading to the ideological polarization we see today.

So despite the fact that his nomination was defeated, he's a key figure in recent political history - perhaps because he was defeated. Here are a few stories about the man:

- Washington Post announcement of his death.
- The Atlantic: The Sad Legacy of Robert Bork.
- WSJ: The Wisdom of Robert Bork.
- US News: Robert Bork's Legacy.
- WP Blog: Bork's influence on antitrust law.
- Balkinization: Bork and the Contingencies of History.

From the Wasington Post: Senate reaches deal on federal judicial nominations

Judicial confirmations are perhaps the ultimate in three way checking and balancing. 2302s should note that these battles have become increasingly drawn out over recent years and seem to have kicked up several notches since Obama became president. The battle over the composition of the courts is in many ways a battle over who gets to determine what the Constitution means.

But the Senate leadership may have figured a way to vote up or down on a handful of nominees:

Senate leaders reached a deal Wednesday on judicial nominations, averting what could have been a weeks-long fight over the fate of 17 picks to serve on the federal bench.

After sparring on the issue for the last three days, Senate Majority Leader Harry M. Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) signaled at midday that they had reached a deal. Democratic aides said senators would vote to confirm 12 federal district court nominees and two circuit court picks by May and move next to a vote on a bipartisan jobs bill that passed overwhelmingly last week by the House with White House support.

The agreement, announced after the Senate approved a transportation funding bill by wide margins, appears to be a victory for Republicans, who had pushed Reid to hold a vote on the jobs measure. Democrats, having successfully drawn Republicans in recent weeks into a fight over reproductive rights and religious freedom, instead appeared eager to revive a years-long argument over federal court nominations.

Reid moved Monday to hold an up-or-down vote on 17 nominees to U.S. district courts, noting that 14 of the nominees earned unanimous approval from the Senate Judiciary Committee and that all of them deserved swift confirmation.

American Constitution Society Discussion on 2011 Judicial Nominations | C-SPAN

American Constitution Society Discussion on 2011 Judicial Nominations C-SPAN

On Obama's Judicial Appointees

From the Huffington Post:

As the first congressional session of Obama's presidency draws to a close, what began as a slow process of confirmation has ballooned into a full-blown judicial crisis. The Senate has overseen the slowest pace of judicial staffing in at least a generation, with a paltry 39.8 percent of Obama's judges having been confirmed, according to numbers compiled by Senate Democrats. Of the 103 district and circuit court nominees, only 41 have been confirmed.
By this time in George W. Bush's presidency, the Senate had confirmed 76 percent of his nominees. President Clinton was working at a rate of 89 percent at this point in his tenure.
More:

- Jonathan Chait.
- Jonathan Bernstein.

Ex-Justice O'Connor Argues in Favor of Merit Selection of Judges

Story here. This is timely for my 3 week 2301 since we are about to read through Federalist #51.

Its Elena Kagan

Obama is prepared to make the announcement soon.

Some miscellaneous readings:

- A Climb Marked by Confidence and Canniness
- How conservatives will attack Elena Kagan
- A timeline of Elena Kagan's career
- Kagan's Notable Statements and Writings
- Elena Kagan - Wikipedia, the free encyclopedia

The Upcoming Supreme Court Nominee and Executive Power

Justice Stevens was often the fifth vote against further expansions of executive power. Will the eventual nominee continue in this vein or add to the growing list of justices who seem to favor expansive executive powers?

Looking Back on the Nuclear Option

Not long ago, Republicans in the Senate were talking about doing away with the filibuster as a tactic to defeat judicial nominees. It was called the nuclear option--though Republicans preferred to call it the Constitutional Option.

A collection of 14 moderate Senators--7 from each party, including John McCain--prevented the option from being deployed. Some Republicans are using this as an argument against McCain but Richard Bauer argues that they are being short sighted.