Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
Page 35
LIKE REGNERY ON FACEBOOK
FOLLOW US ON TWITTER
Notes
Chapter One: The Primary
1. Adam Liptak and Maggie Haberman, “Inside the White House’s Quiet Campaign to Create a Supreme Court Opening,” New York Times, June 29, 2018, A1.
2. Obergefell v. Hodges, 576 U.S. ___ (2015).
3. Roe v. Wade, 410 U.S. 113 (1973).
4. Jeffrey Toobin (@JeffreyToobin), “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months. #SCOTUS,” Twitter, June 27, 2018, 11:06 a.m., https://twitter.com/jeffreytoobin/status/1012034512312832001.
5. Adam Liptak and Maggie Haberman, “Inside the White House’s Quiet Campaign to Create a Supreme Court Opening,” New York Times, June 29, 2018, A1.
6. Neera Tanden (@neeratanden), “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy has been ruling in favor of the Trump Administration position for 2 years as the Court decides 5-4 case after 5-4 case,” Twitter, June 29, 2018, 4:54 a.m., https://twitter.com/neeratanden/status/1012665534297624577.
7. Salvador Rizzo, “The thinly sourced theories about Trump’s loans and Justice Kennedy’s son,” Washington Post, July 12, 2018, https://www.washingtonpost.com/news/fact-checker/wp/2018/07/12/untangling-the-links-between-trump-deutsche-bank-and-justice-kennedys-son/; Katie Akin, “Did Justice Kennedy quit due to family ties to Trump and Russia?” Politifact, July 10, 2018, https://www.politifact.com/truth-o-meter/statements/2018/jul/10/blog-posting/did-justice-kennedy-quit-due-family-ties-trump-and/.
8. Ian Millhiser, “Justice Kennedy deserves this nasty, unflinching sendoff,” ThinkProgress, https://thinkprogress.org/kennedy-was-a-bad-justice-76e464024d78/.
9. Chris Matthews, “Justice Kennedy Announces Retirement From Supreme Court,” MSNBC Live with Katy Tur, MSNBC, June 27, 2018, https://archive.org/details/MSNBCW_20180627_180000_MSNBC_Live_With_Katy_Tur/start/2106/end/2166.
10. Mitch McConnell, “Senator McConnell on Justice Kennedy Retirement and Replacement,” C-SPAN, video file, June 28, 2018, https://www.c-span.org/video/?447582-3/senator-mcconnell-justice-kennedy-retirement-replacement.
11. “SCOTUS Agrees with Kavanaugh,” Senate RPC, July 24, 2018, https://www.rpc.senate.gov/policy-papers/scotus-agrees-with-kavanaugh.
12. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2007), 61.
13. Jeffrey Toobin, “Holding Court,” New Yorker, March 19, 2012, https://www.newyorker.com/magazine/2012/03/26/holding-court.
14. Dan Burns, “Online bettors see Kavanaugh as likely U.S. Supreme Court nominee,” Reuters, June 27, 2018, https://www.reuters.com/article/us-usa-court-kennedy-bets/online-bettors-see-kavanaugh-as-likely-u-s-supreme-court-nominee-idUSKBN1JN350.
15. Michael D. Shear and Maggie Haberman, “Trump Interviews 4 Supreme Court Prospects in Rush to Name Replacement,” New York Times, July 2, 2018, https://www.nytimes.com/2018/07/02/us/politics/trump-supreme-court-nomination.html.
16. Michael D. Shear and Thomas Kaplan, “Court Vacancy in Election Year Jolts the Parties,” New York Times, June 29, 2018.
17. Ruth Graham, “Amy Coney Barrett Is Allegedly a Member of a Religious Group That’s Been Called a ‘Cult,’ ” Slate, July 3, 2018, https://slate.com/human-interest/2018/07/amy-coney-barretts-alleged-religious-group-people-of-praise-what-is-it.html.
18. JCN, “Judicial Crisis Network Launches #AnotherGreatJustice, a Seven-Figure Ad-Buy on Supreme Court Vacancy,” Judicial Crisis Network, June 27, 2018, https://judicialnetwork.com/in-the-news/judicial-crisis-network-launches-anothergreatjustice-a-seven-figure-ad-buy-on-supreme-court-vacancy/.
19. Edith Roberts, “Potential nominee profile: Brett Kavanaugh,” SCOTUSblog, June 28, 2018, https://www.scotusblog.com/2018/06/potential-nominee-profile-brett-kavanaugh/.
20. Christopher Jacobs, “How Potential SCOTUS Pick Brett Kavanaugh Wrote a Roadmap For Saving Obamacare,” The Federalist, July 2, 2018, http://thefederalist.com/2018/07/02/potential-scotus-pick-brett-kavanaugh-wrote-roadmap-saving-obamacare/.
21. David French, “Brett Kavanaugh Is an Excellent Judge, but Is He the Best Choice?,” National Review, July 5, 2018, https://www.nationalreview.com/2018/07/brett-kavanaugh-supreme-court-potential-pick/.
22. Sarah E. Pitlyk, “Judge Brett Kavanaugh’s Impeccable Record of Constitutional Conservatism,” National Review, July 3, 2018, https://www.nationalreview.com/2018/07/judge-brett-kavanaughs-impeccable-record-of-constitutional-conservatism/.
23. Ed Whelan, “Contra Ben Shapiro on Judge Kavanaugh,” National Review, June 28, 2018, https://www.nationalreview.com/bench-memos/contra-ben-shapiro-on-judge-kavanaugh/.
24. Ben Shapiro, “THE RUN-DOWN: Here’s What You Need To Know About Trump’s Top 5 Possible Nominees,” The Daily Wire, June 27, 2018, https://www.dailywire.com/news/32411/run-down-heres-what-you-need-know-about-trumps-top-ben-shapiro.
25. Richard Wolf, “Basketball, Popeyes, 2 Live Crew: The year Neil Gorsuch and Brett Kavanaugh clerked for Anthony Kennedy,” USA Today, August 30, 2018, https://www.usatoday.com/story/news/politics/2018/08/30/brett-kavanaugh-neil-gorsuch-learned-supreme-court-ropes-together/1050836002/.
26. Benny Johnson, “Movement Conservatives Fume at Trump SCOTUS Favorite: ‘This is the Low-Energy Jeb Bush Pick,’ ” Daily Caller, July 3, 2018, https://dailycaller.com/2018/07/03/conservatives-trump-supreme-court-brett-kavanaugh/.
27. Such requests for feedback have a lengthy history. George Washington reportedly kept correspondence from people proposing themselves or others to the Supreme Court in a drawer in his New York office. When visitors would arrive, he’d spread out the letters on the top of his desk and solicit their thoughts. John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore, Maryland: Johns Hopkins University Press, 1995), 24.
28. Maggie Haberman and Jonathan Martin, “McConnell Prods Trump On Nominee To the Court,” New York Times, July 8, 2018, A16.
29. Mark Landler and Maggie Haberman, “President Has the Perfect Template for His Second Nominee: His First. Order Reprints,” New York Times, July 6, 2018, A15.
30. Philip Elliott, “Inside Donald Trump’s Supreme Court Deliberations,” Time, July 8, 2018, http://time.com/5332628/inside-donald-trumps-supreme-court-deliberations/.
31. 2 Corinthians 12:7–10, New American Bible (Revised Edition).
Chapter Two: The List
1. His speech took place four months, nine days before the November 3, 1992, election and six months, twenty-six days before Bush left office. “Biden in 1992: President Should Not Name Supreme Court Nominee Until After The November Election,” RealClearPolitics, February 22, 2016, https://www.realclearpolitics.com/video/2016/02/22/biden_in_1992_bush_should_not_name_a_nominee_until_after_the_november_election.html.
2. “Private: Text of Senator Schumer’s Speech,” American Constitution Society, ACSblog, July 27, 2007, https://www.acslaw.org/acsblog/text-of-senator-schumers-speech/.
3. Burgess Everett and Glenn Thrush, “McConnell throws down the gauntlet: No Scalia replacement under Obama,” Politico, February 13, 2016, https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248.
4. Ted Barrett, Manu Raju, and Laurie Ure, “Kirk blasts GOP leaders for inaction on Supreme Court nominee,” CNN, March 29, 2016, https://www.cnn.com/2016/03/29/politics/merrick-garland-supreme-court-republican-meeting/index.html.
5. Manu Raju, “In reversal, GOP senator says he does not favor hearings for Garland,” CNN, April 1, 2016, https://www.cnn.com/2016/04/01/politics/jerry-moran-merrick-garland-supreme-court-obama/index.html.
6. Mike DeBonis, “GOP senator ‘more convinced than ever’ that Garland should get hearing,” Washington Post, April 5, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/04/05/gop-senator-more-convinced-than-ever-that-garland-should-get-hearing/.
&nbs
p; 7. Burgess Everett, “Flake says it might be Garland time,” Politico, October 20, 2016, https://www.politico.com/story/2016/10/jeff-flake-merrick-garland-vote-supreme-court-230109.
8. “Grassley Statement on Justice Scalia,” Chuck Grassley Senate website, News Releases, February 13, 2016, https://www.grassley.senate.gov/news/news-releases/grassley-statement-justice-scalia.
9. Jennifer Steinhauer and David M. Herszenhorn, “Charles Grassley Faces Formidable Challenger in Iowa Senate Race,” New York Times, March 3, 2016, https://www.nytimes.com/2016/03/04/us/politics/charles-grassley-patty-judge-iowa-senate-race.html.
10. Julie Hirschfeld Davis and David M. Herszenhorn, “White House Is Said to Be Vetting Iowa Judge for Supreme Court Seat,” New York Times, March 2, 2016, https://www.nytimes.com/2016/03/03/us/politics/white-house-vetting-jane-kelly-judge-supreme-court.html.
11. Federal judges hold their seats for life but become eligible for “senior” status after age sixty-five based on a formula combining their age and years on the bench. Senior judges officially vacate their seat and no longer take part in circuit-wide “en banc” hearings or interim motions. They often remain relatively engaged in the business of judging, however, opting to carry up to a full load of regular cases or traveling to sit on cases in other circuits. A major incentive to take senior status is the generous pension: full salary at the time of retirement, plus cost-of-living increases; “Pro-life Women Sound the Alarm: Donald Trump is Unacceptable,” Susan B. Anthony List, January 26, 2016, https://www.sba-list.org/home/pro-life-women-sound-the-alarmdonald-trump-is-unacceptable.
12. Paige Winfield Cunningham, “How the November election could alter the future of abortion,” Washington Examiner, January 31, 2016, https://www.washingtonexaminer.com/how-the-november-election-could-alter-the-future-of-abortion.
13. “Donald Trump: The Full ‘With All Due Respect’ Interview,” interview by Mark Halperin and John Heilemann, Bloomberg, August 26, 2015, https://www.bloomberg.com/news/videos/2015-08-26/donald-trump-the-full-with-all-due-respect-interview.
14. Paige Winfield Cunningham, “How the November election could alter the future of abortion,” Washington Examiner, January 31, 2016, https://www.washingtonexaminer.com/how-the-november-election-could-alter-the-future-of-abortion.
15. Mark Hemingway, “Cruz Control,” National Review, April 16, 2009, https://www.nationalreview.com/magazine/2009/05/04/cruz-control/.
16. Washington Post Staff, “Wednesday’s GOP Debate Transcript, annotated,” Washington Post, September 16, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/09/16/annotated-transcript-september-16-gop-debate/.
17. Sahil Kapur, “Ted Cruz Vows to Put Hard-Core Conservatives on Supreme Court,” Bloomberg, December 2, 2015, https://www.bloomberg.com/news/articles/2015-12-02/ted-cruz-vows-to-put-hard-core-conservatives-on-the-supreme-court.
18. While federal judges are generally nominated by the president and must be confirmed by the Senate before taking office, the Constitution provides for unilateral appointments by the president for vacancies that occur “during the recess of the Senate.” U.S. Constitution, Article II, section 2. Judges so appointed must be confirmed by the Senate before the next session of Congress ends or their appointment expires. Both Warren and Brennan were ultimately confirmed by the Senate.
19. Eisenhower did carry the historically Catholic and Democrat strongholds of New Jersey, Rhode Island, Massachusetts, and New York in the 1956 election, just one month after Brennan was confirmed. It is not clear how much Brennan’s appointment contributed to this victory, however, as he had won those same states in 1952 as well. See Stephan J. Wermiel, “The Nomination of Justice Brennan: Eisenhower’s Mistake? A Look at the Historical Record,” Constitutional Commentary 11 (1995): 533.
20. Patricia Brennan, “Seven Justices, On Camera,” Washington Post, October 6, 1996, Y06.
21. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
22. Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township v. Schempp, 374 U.S. 203 (1963).
23. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); Katz v. United States, 389 U.S. 347 (1967).
24. Griswold v. Connecticut, 381 U.S. 479 (1965).
25. Ibid., 484–85.
26. Ibid., 507 (Black, J., dissenting), 527 (Stewart, J., dissenting).
27. Ibid., 521 (Black, J., dissenting).
28. Roe v. Wade, 410 U.S. 113, 152 (1973).
29. No less an originalist scholar than Robert Bork called Brown “a great and correct decision,” but added that it “was supported by a very weak opinion.” While making his own originalist case for why the Fourteenth Amendment’s Equal Protection Clause did require overturning Jim Crow laws, he worried that the decision appeared to legitimize a type of judging that put results before reasoning. Judging by the Brown decision, the Court clearly didn’t think the “obvious moral rightness” of the result was supported by the history and text of the Constitution itself. So it viewed itself as “depart[ing] from the original understanding in order to do the socially desirable thing.” The irony, from Bork’s perspective, is that the original understanding in fact compelled that very result. See Robert H. Bork, The Tempting of America (New York: The Free Press, 1990), 75–76. Other originalists, like Michael McConnell, have presented persuasive evidence that the generation that ratified the Fourteenth Amendment believed it required the desegregation of schools and other public facilities. See Michael W. McConnell, “The Originalist Case for Brown v. Board of Education,” Harvard Journal of Law and Public Policy 19 (1995): 457.
30. Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (New York: Atheneum, 1986), 54–55.
31. Benjamin Eric Sasse, “The Anti-Madalyn Majority: Secular Left, Religious Right, and the Rise of Reagan’s America,” Dissertation for the Graduate School of Yale University, May 2004, https://blurblawg.typepad.com/files/sasse-dissertaiton.pdf.
32. Reynolds v. Sims, 377 U.S. 533 (1964).
33. William G. Ross, “The Role of Judicial Issues in Presidential Campaigns,” Santa Clara Law Review 42 (2002): 429–30.
34. The Miranda dissenters were eloquent in their criticism of the Court’s creation of new law in that case. Justice Harlan wrote, “Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette . . . ‘This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.’ ” Miranda, 384 U.S. at 525–26 (Harlan, J., dissenting). Justice White added, “The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.” Ibid., 526 (White, J., dissenting). White also lambasted the majority for not even examining the facts of the cases they decided to determine whether coercion was present. Neither law nor fact mattered where there was a convenient opportunity to change the Constitution in a direction for which they had five votes.
35. Ross, “The Role of Judicial Issues in Presidential Campaigns,” 436.
36. In a 1969 memo favorably received by President Nixon, aide Tom Charles Huston said judicial nominations were the “least considered aspect of Presidential power,” and urged the president to establish “his criteria” and “his machinery for insuring that the criteria are met.” When done, the “appointments will be his, in fact, as in theory.” Nixon responded, “Have this analysis in mind when making judicial nominations.” John Anthony Maltese, The Selling of Supreme Court Nominees, (Baltimore: Johns Hopkins University Press, 1995), 2–4.
3
7. George F. Will, “George Will: Unleash the high court,” Washington Post, June 15, 2012, http://www.washingtonpost.com/opinions/george-will-unleash-the-high-court/2012/06/15/gJQAMwvpfV_story.html.
38. Ford specifically endorsed Stevens’s views on “the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress.” He also praised the justice’s wit and sense of humor. Letter from Gerald R. Ford to William Michael Treanor (September 21, 2005), reproduced in William Michael Treanor, “Introduction: The Jurisprudence of Justice Stevens Symposium,” Fordham Law Review 74 (2006): 1559.
39. Chevron v. National Resources Defense Council, 467 U.S. 837 (1984).
40. District of Columbia v. Heller, 554 US 570 (2008).
41. “Republican Party Platform of 1980,” The American Presidency Project, July 15, 1980, https://www.presidency.ucsb.edu/node/273420.
42. Elizabeth Olson, “Justice Potter Stewart, who has served on the Supreme. . .,” UPI, June 18, 1981, https://www.upi.com/Archives/1981/06/18/Justice-Potter-Stewart-who-has-served-on-the-Supreme/7197361684800/.
43. “Transcript of Ronald Reagan’s Remarks at News Conference in Los Angeles,” New York Times, October 15, 1980, A24.
44. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2007), 13.
45. Senator Howell Heflin joked about the Italian American lovefest during Scalia’s hearing, trying to find his own excuse to praise Scalia’s heritage. “I would be remiss if I did not mention the fact that my great-great-grandfather married a widow who was married first to an Italian American.” Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Sarah Crichton Books, 2009), 110.