Below is my column in The Hill newspaper on the rising pressure on Sen. Susan Collins over her vote on Supreme Court nominee Brett Kavanaugh. There is considerable anger over Collins maintaining that she would never vote for a nominee hostile to Roe v. Wade but refusing to acknowledge the widespread view of Kavanaugh as not only hostile to the reasoning of Roe but appointed by a president who promised only to nominate an anti-Roe justice. As with Neil Gorsuch, Collins appears inclined to vote for Kavanaugh despite her oft-repeated pledge. She insists that she is comfortable after Kavanaugh told her that Roe is “settled” law. However, many have put Collins’ position as falling somewhere between hopeful thinking and willful blindness. As discussed below, the unsettling thing about settled law is that only five votes make anything truly settled on the Court.
I will have the pleasure of participating in the annual Supreme Court review today previewing the upcoming October term. The other panelists will be former Solicitor General Gregory Garre, NAACP Legal Defense and Educational Fund President and Director-Counsel Sherrilyn Ifill. Associate Dean (and Supreme Court litigator) Alan Morrison will moderate the panel.
Below is my column in The Hill newspaper on the Kavanaugh confirmation hearing and the opening statement of Sen. Sheldon Whitehouse attacking the conservatives on the Supreme Court as a virtual ideological cabal. I have always found Whitehouse an articulate and insightful member of the Congress. He was not alone in these attacks. However, I found the attack on the current justices to be unwarranted and distorted. There is a tendency when you disagree with a decision like Hobby Lobby to conclude that the motivations of the justices must therefore be raw politics. The possibility that the justices, including Justice Kennedy, are following a coherent jurisprudential view is dismissed in favor of partisanship.
There is an interesting C-SPAN survey out this week where ninety-one percent of citizens agreed that decisions on the Supreme Court impacted the lives of every American but a majority lack the ability to name a single justice.
For over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel. The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate. Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel. The decision came as part of the grand jury investigation into Trump confidant Roger Stone.
While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command. This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court. Kavanaugh is a long critic of Morrison. However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer. However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.
Below is my column in the Hill newspaper on the nomination of Brett Kavanaugh to replace retiring Associate Justice Anthony Kennedy. It seems likely that Kavanaugh will be confirmed absent some earth-shattering disclosure in the confirmation process.
President Donald Trump has nominated Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia to replace retiring Associate Justice Anthony Kennedy. Kavanaugh was opposed by some conservatives and is not viewed as strongly anti-abortion as Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. However, he is highly intelligent and accomplished. I have a column out this morning in The Hill newspaper.
Below is my column in the Hill newspaper on why the most creative and productive individuals are often disfavored in our modern confirmation system. With the announcement of the new nominee this evening by President Donald Trump, we will have the state of a counterintuitive process that favors those who are the least forthcoming or open about their views.
Below is my column in USA Today on politics over Roe and the Supreme Court vacancy. The new vacancy and the the earlier pro-life pledge of President Donald Trump is something of a bill come due for Republicans. It is a bill that some Republicans privately do not want to pay.
Below is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller. It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.
Below is my column in the Washington Post on the implications of the resignation of Associate Justice Anthony Kennedy and his own decisions setting aside prior precedent. Indeed, Kennedy’s last week before announcing his resignation reenforced the very arguments that could be used by a new conservative majority to strip away his legacy. Indeed, Kennedy spent the last week eagerly sawing away on the branch on which he and his legacy rests.
The announced retirement of Associate Justice Anthony Kennedy has rocked Washington. I have columns that will be coming out in both the Washington Post and The Hill addressing different aspects of this news. However, the departure of the last Reagan nominee is obviously the end of an era for the Supreme Court as an institution. As someone with well-known libertarian leanings, I have always had a strong identification with Kennedy’s jurisprudence. While conservative in his approach, Kennedy believed that the most sacred role of the Constitution was to protect individuals in quest for meaning and identification in their lives. I always found Kennedy both personally and judicially to be a man of grace and profound sensitivity. I have long dreaded his leaving the Court, which will be the worst for his departure.
For decades, law professors have discussed the 1944 decision in Korematsu v. United States as one of the most disgraceful and indefensible opinions ever issued by the United States Supreme Court. Yet, the Court has continued to cite Korematsu and has never expressly disavowed its denial of basic constitutional rights to Japanese Americans. In a virtual aside by the majority in Trump v. Hawaii, Chief Judge John Roberts Jr. puts a well-aimed stake through the heart of the case and finally declares it to be overturned.
I’ll admit that I had no idea who was serving as Chaplain of the House of Representatives until the recent controversy over the forced resignation of Fr. Patrick Conroy, S.J. But if someone had told me only that a Catholic priest had just been fired as House Chaplain, I would have guessed that he was a Jesuit.
The Society of Jesus has been a thorn in the side of princes and popes for centuries. Jesuits have been periodically banned by kings and suppressed by the Church, but they have always returned to continue speaking truth to power, inspired by a rich tradition of Ignatian spirituality and a fierce intellectual independence. My own alma mater, Jesuit High School in El Paso, Texas, occupied a campus built by Mexican Jesuits during a period of anti-clerical political repression in Mexico.
While I was still contemplating the meaning of the termination, the resulting political outcry resulted in Paul Ryan’s capitulation to political reality and Fr. Conroy’s reinstatement. But the question remains: what was behind the request for his resignation? The explanation initially provided, that he was not meeting the “pastoral needs” of his congressional flock, struck me as contrived. Nor did I buy into the excuse that he was a victim of generalized anti-Catholic attitudes among certain House members. The correct answer, I believe, lies behind Fr. Conroy’s own comments that he had been asked to “stay out of politics” following a prayer before the opening of a House session on the then pending tax overhaul bill. The words of that prayer suggest that Fr. Conroy’s sin was primarily theological.