Podcast: How the legal community is reacting to the Senate vote on Kavanaugh

Brett Kavanaugh protest picAt this point, more than 1,700 law professors have signed a petition saying Supreme Court nominee Brett Kavanaugh lacks the temperament and judicial restraint necessary to sit on the high court. Kavanaugh’s nomination has not only divided the country; it has also divided the legal community. NPR has more on how members of the legal profession are reacting to the Senate’s vote on whether to confirm Kavanaugh.

Video: CNN analyst Jeffrey Toobin criticizes Trump comments on the ‘poor plight of white men’

Supreme CourtCNN analyst and author Jeffrey Toobin says Donald Trump, Jr.’s comments about the “poor plight of white men” is “garbage.

“If you sexually assault someone in high school, your life should be ruined,” Toobin added. “You life should be pursued. I mean the idea that this is somehow unjust—remember, this all started with accusations of sexual assault. How about the lives of the women who were sexually assaulted in high school?”

Meanwhile, President Trump told reporters Tuesday that “It is a very scary time for young men in America, where you can be guilty of something you may not be guilty of.” According to CNN, Trump added that “women are doing great.”

The Trumps’ comments come as the controversy surrounding Supreme Court nominee Brett Kavanaugh continues to agitate people on both sides.

Video: Ford’s lawyer explains why she wants an FBI investigation of Kavanaugh

FBI sealThe attorney for Christine Blasey Ford, the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when they were teenagers, says she wants the FBI to investigate the charges before she’ll testify to Congress. She told CNN’s Anderson Cooper that Ford has been forced into hiding because of death threats made against her since her name was revealed.

The trouble with Kavanaugh

Supreme CourtPresident Trump’s nomination of Brett Kavanaugh to the Supreme Court has reached a barrier that may not be surmountable: A college professor is accusing Kavanaugh of sexual assaulting her while they were teenagers. Some analyses at The Week offer insight into the GOP’s dilemma. Scott Lemieux wonders why Republicans are adamantly standing by the troubled nominee. His argument is that the GOP could easily find someone else on The Federalist Society’s Top 25 list to replace Kavanaugh and have them approved before the midterm election. Meanwhile, David Faris writes that The American judiciary is in serious trouble, and accuses Republicans of abusing their power:  

The GOP’s abuse of its power of judicial appointments is so widespread at this point as to feel commonplace, and it goes far beyond the behavior of Vichy Republicans in Congress. Party elites at all levels are acting like bank robbers feverishly stuffing stacks into sacks even as they hear the sirens approaching in the distance.

Ryan Cooper says Kavanaugh’s nomination reveals “the utter moral corruption of American conservatism.  And at Salon, Bob Brigham says former RNC Chairman Michael Steele claims Republicans have been privately discussing ways to remove Kavanaugh’s nomination. MSNBC’s Chris Matthews says the Kavanaugh nomination is really all about Trump.

How a Kavanaugh Court Could Nullify Roe v. Wade Without Overruling It

Supreme CourtBy WMU-Cooley Law School Constitutional Law Professor Brendan Beery

Most constitutional cases involve a bilateral construct: an individual seeks to vindicate some constitutional right, and the government claims either that no such right exists or that it—the government—has some interest of its own that overcomes the individual’s. Abortion cases are different because they arguably involve more than two interests: a woman’s interest in ending a pregnancy, the state’s interest in regulating medical procedures, and the interest of the unborn (which would seem at odds with the woman’s interest, leaving the state to advocate for that interest, too).

That is why the legal framework that has developed in abortion cases is, frankly, a hodgepodge of vague terms, categories, exceptions and exceptions to exceptions and, most recently, ad hoc balancing. In the Court’s most recent high-profile abortion decision (Hellerstedt), a case in which the now-departed Justice Kennedy sided with the Court’s four liberal justices, the Court announced that, as to any law restricting a woman’s right to end a pregnancy during pre-viability, a court must weigh the burden against the benefits derived from the law.

Under this balancing approach, the Court invalidated two Texas laws: one that required physicians at abortion clinics to have admitting privileges at a nearby hospital (even though most of them already had admitting privileges), and one that required that clinics have hospital-grade surgical facilities onsite (even though many medically induced abortions involve no surgical procedures at all). Because the laws caused the closing of many facilities altogether without producing any real benefits, the Court struck them down.

But Judge Brett Kavanaugh would likely have voted with the four conservatives to uphold the restrictions, and the question has even arisen whether he would provide the fifth vote for overruling Roe v. Wade outright. That seems doubtful; Chief Justice John Roberts, something of an institutionalist, has a track record of trying not to rock the historical boat. It is more likely that the Court will hollow out the core holding of Roe—that a woman has a fundamental right to terminate a pregnancy before the point of fetal viability—without expressly overruling it. In this way, the Court will seek to maintain its stated respect for prior precedents while at the same time, in effect, turning those precedents on their heads.

And in Hellerstedt, the Court unwittingly paved the way for the new majority to do just that. Balancing tests are a strange species of legal analysis: not all balancing tests are equal—or, more precisely, in equilibrium. Sometimes the Court adopts a neutral balancing approach: whoever has the weightier interest wins, plain and simple. But other times, the Court puts a thumb on one side of the scale. When it perceives that no sacrosanct individual right is at stake, it puts its thumb on the government’s side of the scale, applying a deferential balancing approach. When an individual asserts a fundamental liberty interest like free speech, the Court has put its thumb on the individual’s side of the scale, applying a skeptical and aggressive balancing approach.

The majority in Hellerstedt explicitly created a balancing test, but never said what kind of balancing test—deferential, neutral, or skeptical—should apply. That is a gap the new majority will exploit, veering sharply to the deferential side with a rule that goes something like this: a burden on a woman’s ability to have an abortion is only invalid if the burden is clearly excessive in relation to the benefit (that being the preservation of potential human life). By using that kind of language, the Court may uphold many if not all abortion restrictions while at the same time claiming that it is merely applying, and not overruling, prior precedents.

Over 100 Attorneys Across Country Join Statement to Senate Opposing President Trump’s Supreme Court Nominee Based on Civil Rights Record

Lawyers’ Committee Also Released Its Report Evaluating The Available Civil Rights Record Of Judge Kavanaugh.

WASHINGTON, D.C. – The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) released its report evaluating the available civil rights record of Supreme Court nominee Judge Brett Kavanaugh. The report offers a careful and comprehensive examination of Kavanaugh’s record on cases concerning civil rights matters, including criminal justice, voting rights, fair housing, education, reproductive rights, environmental justice and access to justice issues – matters central to the Lawyers’ Committee’s mission. The report is based primarily on the opinions authored or joined by the judge during his time on the D.C. Circuit.

In addition to the report, the Lawyers’ Committee also issued a statement opposing Judge Kavanaugh’s nomination to the Court – joined by over 100 members of its Board of Directors, including former judges, bar association presidents, law firm leaders, General Counsels and more, located across the country. The report was presented to Senate Majority Leader Mitch McConnell, Minority Leader Charles Schumer, Judiciary Committee Chairman Chuck Grassley, and Ranking Member Diane Feinstein urging the Senate to closely and carefully examine Judge Kavanaugh’s record on civil rights matters.

“We do not arrive at this position lightly, having taken several weeks to carefully asses Judge Kavanaugh’s record both on and off the bench, with a focus on the implications that this nomination will have on African American communities across the country,” said Lawyers’ Committee President and Executive Director Kristen Clarke.  “Simply put, we do not find that Judge Kavanaugh brings a commitment to protecting and safeguarding civil rights.  The Supreme Court has always occupied a central place in American democracy as the arbiter of some of the most impactful cases that typically arise across our country.  We urge the Senate to focus on Judge Kavanaugh’s record concerning the interpretation and application of the Constitution and federal civil rights laws. We make this request recognizing that hundreds of thousands of documents concerning Judge Kavanaugh’s time at the White House remain outstanding, significantly impairing the ability of the Senate to carry out its constitutional obligation to provide advice and consent.”

Judge Shira Scheindlin, Co-Chair of the Judicial Nominations Committee of the Lawyers’ Committee for Civil Rights Under Law, stated: “The Senate Judiciary Committee must closely examine Judge Kavanaugh’s record to determine whether he truly brings a commitment to fairly interpreting the Constitution and federal civil rights laws.  Our country deserves a Justice who will be faithful to the principle of equal justice under law.”

Adam Klein, Co-Chair of the Lawyers’ Committee for Civil Rights Under Law stated: “The Lawyers’ Committee for Civil Rights Under Law is driven by a Board comprised of attorneys from across our country who believe that the Supreme Court plays a special role in our society.  The Senate Judiciary Committee must ensure that Judge Kavanaugh will fairly handle all matters that come before the Court, including civil rights matters.”

Edward Correia, a Member of the Judicial Nominations Committee, stated: “At its finest moments, the Supreme Court has promoted racial tolerance, protected the rights of the disadvantaged, and made sure that every person, including Presidents, are subject to the rule law. The question for the Senate is whether Judge Kavanaugh will advance those goals.”

Since its creation in 1963 at the urging of President John F. Kennedy, the Lawyers’ Committee has been devoted to the recognition and enforcement of civil rights in the United States. While we have seen significant progress, the challenges of unlawful discrimination remain. Recognizing the Supreme Court’s critical role in civil rights enforcement and the central role that the Court plays in our democracy, the Lawyers’ Committee has long reviewed the record of nominees to the Court to determine if the nominee demonstrates views that are consistent with the core civil rights principles for which we have long advocated.

In evaluating nominees to the Court, the Lawyers’ Committee has employed a rigorous standard with two distinct components: (1) exceptional competence to serve on the Court based on education, experience and engagement in the legal system at the highest levels of responsibility, and (2) profound respect for the importance of protecting the civil rights afforded by the Constitution and the nation’s civil rights laws based on a large body of civil rights opinions or comparable information from statements and activities other than service on the bench.

In its report, the Lawyers’ Committee for Civil Rights Under Law outlines its grave concerns regarding the pending nomination of Judge Brett Kavanaugh, with a focus on issues of great concern to our organization and our clients, the majority of whom are African American and other disadvantaged minorities. The report notes that in his criminal justice decisions, Judge Kavanaugh takes a narrow view of constitutional rights, particularly Fourth Amendment rights. The report also raises concern regarding his views on educational opportunities and students with disabilities. In addition, the report notes that Judge Kavanaugh has written a number of opinions on employment law issues in which he has generally affirmed district court decisions dismissing claims asserted by people of color, women, and disabled people. The Lawyers’ Committee also observed that the Senate must explore Judge Kavanaugh’s commitment to fairly interpreting and applying laws such as the Voting Rights Act of 1965, the Affordable Care Act, and the Environmental Protection Act.

A copy of the report is available here.  

A letter signed by close to 100 members of the Board of Directors of the Lawyers’ Committee for Civil Rights Under Law can be found here.

Healthcare Talking Points

As the Supreme Court considers the constitutionality of President Obama’s health-care reform, the Patient Protection and Affordable Care Act of 2010, there are some important points to remember.  The case has been polarizing for the United States: it would provide health insurance to some 32 million Americans lacking coverage, a major social accomplishment for some, but also would force people to buy insurance — an intrusion into civil liberties for others.


Here are four important things to keep in mind as the court weighs the case:

1 – The court may put off ruling on the case until 2014.

  • During the first day of oral arguments, the justices will consider if the federal Anti-Injunction Act prevents them from deciding the case before the federal mandate takes effect in 2014.
  • The Anti-Injunction Act, passed 1867, strips the court of the ability to rule on the constitutionality of a tax before that tax has been paid. The court will have to decide if the individual mandate is essentially a tax.

2 – Conservatives argue the law is “slippery slope” to broccoli mandates.

  • On Tuesday, the court is expected to listen to arguments that if the government can force people to buy insurance then it can also force them to do other things like buy health foods or buy GM cars.
  • Florida’s Republican Attorney General Pam Bondi and others have insisted that if the Affordable Care Act’s individual mandate is allowed to stand then the government could eventually also require people to “buy and consume broccoli at regular intervals” because it would positively impact interstate commerce by making consumers healthier.
  • Others, like President’s Ronald Reagan’s former Solicitor General Charles Fried, say this slippery slope argument is “totally bogus” because the government isn’t forcing people into a market that they are not already in.
  • Acting U.S. Solicitor General Neal Katyal told AFP that striking down the individual mandate, which forces Americans to purchase health insurance, would be a “grave and profound” decision.

“If the Supreme Court struck this down, I think that it wouldn’t just be about health care,” Katyal explained. “It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.”

3 – Unpopularity of health care law unlikely to effect the decision.

  • According to a recent New York Times survey, President Barack Obama’s Affordable Care Act continues to be unpopular with the public, 47-38.
  • The Washington Post‘s Robert Barns noted last week that public opinion was unlikely to sway the conservative-leaning court one way or the other.

“The court has shown it is unafraid to buck public opinion to protect constitutional principles, particularly in free-speech cases,” Barns wrote.

4 – Experts expect law to be upheld.

  • A recent survey of former Supreme Court clerks and lawyers who have argued before the court found that over 50 percent expect the individual mandate to be upheld. Only 35 percent thought it would be struck down.

“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one responded replied. “I think the Court will uphold the statute by a lopsided majority.”

  • If the court does decide that the individual mandate is unconstitutional, only 27 percent thought they they would also strike down the entire law.