ETA: Regarding the latest rejection (on jurisdiction grounds basically since he is no longer an appellate judge) of ethical complaints on Kavanaugh: the House Judiciary Committee requested some records. Since some of the ethical complaints referenced alleged misstatements involving that time period, there is overlap. It only touches upon part of the problem (including his sexual crimes and the slipshod nature of the confirmation process involving the FBI etc.), but it is a start. The request also flagged the issue of ethical guidelines for judges and justices, a continuing concern.
There has been repeated concerns that the courts did not come up in the Democratic debates except in passing by Buttigieg:
Since it is "Order Day," we can focus on the courts here and again there has been a lot of angst there. It does to some degree fall on moderators, but the fact is that the courts enter into any number of issues covered. (If LGBT and other areas also not covered was addressed, same thing though abortion often is in this case too much seen as a judicial matter alone.) Racism? Well, the courts have an important place in interpreting various questions there as well as addressing it in civil and criminal trials.
Dahlia Lithwick cries out the Dems need to talk about the courts. and though somewhat thin, suggests various issues. A basic thing is that presidents nominate, senators help vet and then confirm judges. This is ultimately about who is in power and it is okay to say so. Judges might be "umpires" [they aren't merely umpires, but let's pretend] but the party of the nominator seems to matter a lot. Plus, yes, there is a responsibility for the actors here other than merely raw power. With another judicial panel saying Judge Kavanaugh is no longer their responsibility, both the House (impeachment/oversight) and the Senate (oversight/addressing their confirmation power) have a role to play.
[An aside on that "no opinion on Brown thing. I don't quite know what that is all about, but figure the concern is that once they state an opinion on that one ruling, Dems will have an open season to talk about others. It is not that they find the opinion wrong or something. Conservatives these days are fine with accepting it and opposing affirmative action and use of race even in mild ways to uphold its legacy. They are not "denialists" from what I can tell though that to some is the unsurprising implication.
In that respect, it seems like over the top hard line tactics that is if anything counterproductive. If understandable given the people involved. OTOH, if the Dems are going to let it go, what stops them? Why make it easy for them? It's a somewhat small thing at the end of the day but you need to draw a line somewhere.]
It is unclear how -- other than simply regaining control -- how the Dems are supposed to go after McConnell. For good reasons, Dems ended the filibuster for judicial nominations under Obama. Dragging out lower tier nominations (such as district judges) is also long term a dubious policy. There might be some benefit to play hardball to have some role (see blue slips) in the process. But, without the filibuster, Dems really don't have much power here though there are ways to slow things down, especially if they want to use non-judicial legislation as a means. Specifics might be useful, but also a lot of this would be more up to the Senate.
So what does a presidential candidate talk about? The article talks about dark money, a repeat concern of Sen. Whitehouse. As noted above, this underlines how other topics overlap with judicial matters. There is a wariness to promise specific results in the courts (one law professor said just to promise moderate qualified judges) but this goes beyond that. There is also the more controversial talk of term limits and the packing. Buttigieg has some Rube Goldberg device there. Ethical rules and sexual harassment is another potential area of discussion. SCOTUS being most touchy. Finally, there might be ways to tinker in some fashion with jurisdiction.
Other than leaving certain things open, it is unsurprising that candidates do not want to address some of these things. OTOH, discussing the importance of the courts and the role of political actors in the system is fine. Some concern for a smooth system of nomination/confirmation (citing Kavanaugh as an example of what not to do) would recognize this important area of executive power and responsibility. Plus, the dark money in the nomination process is an area rich in opportunity. Finally, one thing to talk about is openness. Supporting television or even audio (for opinion announcements and so forth) would be an easy thing to toss in.
One other issue that touches upon the importance of the courts and respects the importance of handling their effects is basically policy-making that respects the possibility of court review. Conservative courts will threaten progressive legislation. Government action needs to factor this in and has over the years -- courts are only so powerful and tend to act in ways that at least partially leave open other options. So U.S. v. Lopez allowed a slightly amended law to mostly address guns near schools as before. As with presidents having a long term plan on how to deal with congressional intransigence (including in nominations), this too is important.
===
These entries provide other material given the basic reality that summer orders -- though the border wall order shows stand-alone jokers do arise -- tend to be boring. This does not warrant totally ignoring them any more than other order lists, since they remain an important part of their job. Thousands of cases are in some fashion handled each term even if only a fraction are given special attention (70 odd full opinions, various others sent back for application of those opinions and a few more given special notice by some justices, though perhaps via separate comment).
The average person knows little though the Supreme Court doesn't really help the situation much. I again support use of specific cases here to help give a taste of the matters at hand or at least more FAQ type clarification on the website with a sample of that sort. For instance, last time a bail denial provided a chance to do so, including in an inside the fold article in some publication. It had some colorful facts as I noted last time. Justice Sotomayor, the justice who was directly involved, also would have been a good person to do this given her overall concerns.
Last summer order day, there was a quirky bail request denied. This time: "The motion of petitioners to dispense with printing the joint appendix is granted." We regularly have such housekeeping type orders in these order lists. As is usual, there is also a list of rehearings denied regarding lower court cases. And, there is a short list of attorney discipline orders. The final scheduled summer order is August 23rd. There are also a few executions scheduled this month that I will address as they come.
(I missed it -- SCOTUSBlog, e.g., not concerned about such things -- but SCOTUS dropped media advisories on Friday regarding press seating for DACA and GLBT employment rights cases. They do this for a few high profile cases. Again, why isn't this televised?)
There has been repeated concerns that the courts did not come up in the Democratic debates except in passing by Buttigieg:
The piece argues the Dems have not done enough to address the structural reforms necessary to address our current situation. This isn't really surprising (even when Bernie Sanders wants to reform basic ways we do things he seems to want to do it within our existing system, even opposing changing the filibuster) given we are a conservative country in that respect. Plus, change there is hard especially coming from insiders. Also, when we have so many horrible actors and policies, structure seems a bit indulgent. "Let's defeat Trump." But, why do we have the results we have now?[This is] the conversation that we have been having for the last 20 years. Of course, we need to get money out of politics, but when I propose the actual structural democratic reforms that might make a difference — end the Electoral College, amend the Constitution if necessary to clear up Citizens United, have DC actually be a state, and depoliticize the Supreme Court with structural reform — people look at me funny, as if this country was incapable of structural reform.
Since it is "Order Day," we can focus on the courts here and again there has been a lot of angst there. It does to some degree fall on moderators, but the fact is that the courts enter into any number of issues covered. (If LGBT and other areas also not covered was addressed, same thing though abortion often is in this case too much seen as a judicial matter alone.) Racism? Well, the courts have an important place in interpreting various questions there as well as addressing it in civil and criminal trials.
Dahlia Lithwick cries out the Dems need to talk about the courts. and though somewhat thin, suggests various issues. A basic thing is that presidents nominate, senators help vet and then confirm judges. This is ultimately about who is in power and it is okay to say so. Judges might be "umpires" [they aren't merely umpires, but let's pretend] but the party of the nominator seems to matter a lot. Plus, yes, there is a responsibility for the actors here other than merely raw power. With another judicial panel saying Judge Kavanaugh is no longer their responsibility, both the House (impeachment/oversight) and the Senate (oversight/addressing their confirmation power) have a role to play.
[An aside on that "no opinion on Brown thing. I don't quite know what that is all about, but figure the concern is that once they state an opinion on that one ruling, Dems will have an open season to talk about others. It is not that they find the opinion wrong or something. Conservatives these days are fine with accepting it and opposing affirmative action and use of race even in mild ways to uphold its legacy. They are not "denialists" from what I can tell though that to some is the unsurprising implication.
In that respect, it seems like over the top hard line tactics that is if anything counterproductive. If understandable given the people involved. OTOH, if the Dems are going to let it go, what stops them? Why make it easy for them? It's a somewhat small thing at the end of the day but you need to draw a line somewhere.]
It is unclear how -- other than simply regaining control -- how the Dems are supposed to go after McConnell. For good reasons, Dems ended the filibuster for judicial nominations under Obama. Dragging out lower tier nominations (such as district judges) is also long term a dubious policy. There might be some benefit to play hardball to have some role (see blue slips) in the process. But, without the filibuster, Dems really don't have much power here though there are ways to slow things down, especially if they want to use non-judicial legislation as a means. Specifics might be useful, but also a lot of this would be more up to the Senate.
So what does a presidential candidate talk about? The article talks about dark money, a repeat concern of Sen. Whitehouse. As noted above, this underlines how other topics overlap with judicial matters. There is a wariness to promise specific results in the courts (one law professor said just to promise moderate qualified judges) but this goes beyond that. There is also the more controversial talk of term limits and the packing. Buttigieg has some Rube Goldberg device there. Ethical rules and sexual harassment is another potential area of discussion. SCOTUS being most touchy. Finally, there might be ways to tinker in some fashion with jurisdiction.
Other than leaving certain things open, it is unsurprising that candidates do not want to address some of these things. OTOH, discussing the importance of the courts and the role of political actors in the system is fine. Some concern for a smooth system of nomination/confirmation (citing Kavanaugh as an example of what not to do) would recognize this important area of executive power and responsibility. Plus, the dark money in the nomination process is an area rich in opportunity. Finally, one thing to talk about is openness. Supporting television or even audio (for opinion announcements and so forth) would be an easy thing to toss in.
One other issue that touches upon the importance of the courts and respects the importance of handling their effects is basically policy-making that respects the possibility of court review. Conservative courts will threaten progressive legislation. Government action needs to factor this in and has over the years -- courts are only so powerful and tend to act in ways that at least partially leave open other options. So U.S. v. Lopez allowed a slightly amended law to mostly address guns near schools as before. As with presidents having a long term plan on how to deal with congressional intransigence (including in nominations), this too is important.
===
These entries provide other material given the basic reality that summer orders -- though the border wall order shows stand-alone jokers do arise -- tend to be boring. This does not warrant totally ignoring them any more than other order lists, since they remain an important part of their job. Thousands of cases are in some fashion handled each term even if only a fraction are given special attention (70 odd full opinions, various others sent back for application of those opinions and a few more given special notice by some justices, though perhaps via separate comment).
The average person knows little though the Supreme Court doesn't really help the situation much. I again support use of specific cases here to help give a taste of the matters at hand or at least more FAQ type clarification on the website with a sample of that sort. For instance, last time a bail denial provided a chance to do so, including in an inside the fold article in some publication. It had some colorful facts as I noted last time. Justice Sotomayor, the justice who was directly involved, also would have been a good person to do this given her overall concerns.
Last summer order day, there was a quirky bail request denied. This time: "The motion of petitioners to dispense with printing the joint appendix is granted." We regularly have such housekeeping type orders in these order lists. As is usual, there is also a list of rehearings denied regarding lower court cases. And, there is a short list of attorney discipline orders. The final scheduled summer order is August 23rd. There are also a few executions scheduled this month that I will address as they come.
(I missed it -- SCOTUSBlog, e.g., not concerned about such things -- but SCOTUS dropped media advisories on Friday regarding press seating for DACA and GLBT employment rights cases. They do this for a few high profile cases. Again, why isn't this televised?)
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