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Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

Live blog of confirmation hearing | September 4, 2018

Live blog of confirmation hearing | September 4, 2018

We are live-blogging the first day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee.

We are live-blogging the first day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee.

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3rd & 7 37yd

Feinstein: In the 50s and 60s, I saw what happened to young women who became pregnant. When you look at the statistics during those days (by Guttmacher Institute), it's horrendous.

by Andrew Hamm 9/4/2018 3:00:04 PM
Feinstein: President who nominated you have said he was anti-choice and pro-gun. And we believe what he's said.

by Andrew Hamm 9/4/2018 3:00:29 PM
Feinstein: Last year you drafted a dissent in Garza v. Hargan. I believed you mischaracterized Supreme Court precedent.

by Andrew Hamm 9/4/2018 3:01:30 PM
You are willing to disregard precedent.

by Andrew Hamm 9/4/2018 3:02:14 PM
There is some Supreme Court counter programming coming up momentarily, at least on the East Coast. Justice Sonia Sotomayor will appear on today's season premiere of "The View" on ABC. (Check your local listings.) She is promoting her new books, a middle school version of her memoir called "The Beloved World of Sonia Sotomayor," and a children's illustrated version titled "Turning Pages: My Life Story." I'm going to see if I can get the staff here to switch over one of the TV monitors in the room to that show.

by Mark Walsh 9/4/2018 3:02:42 PM
This case did get to the Supreme Court. Here's our case page, which includes a link to the D.C. Circuit opinion with Kavanaugh's dissent:
Azar v. Garza - SCOTUSblog
SCOTUSblogThe Supreme Court of the United States blog

by Andrew Hamm 9/4/2018 3:02:43 PM
Feinstein: President promised a nominee blessed by NRA. In reviewing your record, it's clear you go beyond being pro-gun.

by Andrew Hamm 9/4/2018 3:03:36 PM
Assumption is that the Chairman has ultimate say about entertaining any motion (and the discussion on adjourning will never be heard) correct?

by michael_mantis 9/4/2018 3:03:52 PM
Sen. Lindsey Graham, Republican of South Carolina, is now here and has taken his seat between Sens. Orrin Hatch and John Cornyn.

by Mark Walsh 9/4/2018 3:03:57 PM
During this time, Feinstein has been talking about how important gun protections are, and she mentions the shootings at Sandy Hook in particular. If the Supreme Court adopts Kavanaugh's views, the number of victims will continue to grow and citizens will be powerless to address this issue.

by Andrew Hamm 9/4/2018 3:06:49 PM
Feinstein: You yourself said that being staff secretary was your period of greatest growth. The only way we can look at that is by reviewing documents from that period. [This goes back to the Democrats' main point from the beginning of the hearing this morning.]

by Andrew Hamm 9/4/2018 3:07:57 PM
Now it's Sen. Hatch's turn. He calls this the most thorough confirmation process he's ever participated in.

by Andrew Hamm 9/4/2018 3:08:38 PM
Hatch is citing his experience with confirmations, including for every current sitting justice. You are a great nominee, he tells Kavanaugh.

by Andrew Hamm 9/4/2018 3:09:31 PM
Hatch: Supreme Court has adopted positions from your opinions no less than 13 times: in administrative law and national security, among other issues.

by Andrew Hamm 9/4/2018 3:10:29 PM
A new crowd has been brought in to the audience, and we just had two more interruptions (including one woman pushed pretty hard).

by Andrew Hamm 9/4/2018 3:11:52 PM
Hatch is complaining about the interruptions.

by Andrew Hamm 9/4/2018 3:12:19 PM
There are chants of "Stop Kavanaugh" and "Hell no" from the people just brought to the hallway. Meanwhile, Hatch is talking about Kavanaugh's personal qualities, including statements of support from his past law clerks of his who are women.

by Andrew Hamm 9/4/2018 3:14:59 PM
These clerks span the political divide, Hatch says. He is showing a capacity to go ahead with his remarks, even as there are points in which the room is quite loud.

by Andrew Hamm 9/4/2018 3:16:37 PM
Hatch: Kavanaugh indisputably qualified. Hatch cites a former lawyer of Bill Clinton who has written a letter in favor of the nomination.

by Andrew Hamm 9/4/2018 3:17:59 PM
Hatch: Judge, I'm sorry you are going to have to go through some of this nonsense.

by Andrew Hamm 9/4/2018 3:19:32 PM
Hatch: I'm not sure if the committee should have to put up with this. These people are so out of line they should not be allowed in the "god damn" room.

by Andrew Hamm 9/4/2018 3:20:01 PM
Feinstein is now going to recognize some people in attendance, including Vanita Gupta of the Leadership Conference, Sherrilyn Ifill of NAACP LDF, Kristen Clarke of the Lawyers' Commitee, among others. There is also a survivor of the Parkland shootings.

by Andrew Hamm 9/4/2018 3:21:55 PM
God darned...

by John the Lawyer 9/4/2018 3:21:57 PM
Sen. Leahy is now giving his statement. I've never seen such a dangerous rush to fill a seat.

by Andrew Hamm 9/4/2018 3:22:53 PM
Leahy: Trump said he would appoint judges who would dismantle Roe v. Wade and the Affordable Care Act. That's judicial activism.

by Andrew Hamm 9/4/2018 3:23:25 PM
Leahy: You (Kavanaugh) may also have intrigued Trump because of your unorthodox position that presidents should not be burdened with investigations while in office.

by Andrew Hamm 9/4/2018 3:24:10 PM
Leahy: Hard for me to imagine that these views escaped the notice of President Trump.

by Andrew Hamm 9/4/2018 3:24:26 PM
Kavanaugh taking notes as Leahy mentions previous experience as a political operative in the Bush administration.

by Edith Roberts 9/4/2018 3:25:29 PM
Leahy: The hearing is meant to be an examination of a nominee for a lifetime appointment that gives the American people a genuine opportunity to scrutinize the nominee's philosophy, belief, and character, because nominee may impact lives for generation or more.

by Andrew Hamm 9/4/2018 3:25:51 PM
Leahy: So much has been wrong with the vetting of this nomination, I don't know where to begin. You should not be sitting in front of us today, only after we've completed view of your record. We have abandoned tradition.

by Andrew Hamm 9/4/2018 3:26:29 PM
Leahy: The Republicans refuse to request documents from staff secretary, including abortion, same-sex marriage, and torture. But in private meeting with White House counsel, decision by Republicans made to keep those records off limits.

by Andrew Hamm 9/4/2018 3:27:30 PM
Two more interruptions. Leahy says he does not intend to continue to speak during such an interruption. He doesn't care whose side they are on, he says.

by Andrew Hamm 9/4/2018 3:28:57 PM
Leahy: During Garland nomination, Republicans showed they were willing to have patience in filling vacancies.

by Andrew Hamm 9/4/2018 3:29:35 PM
Leahy: What is being hidden and why? Every document received handpicked by deputy in Bush White House who also represents certain Trump officials. This person decided which documents the Senate and American people got to see.

by Andrew Hamm 9/4/2018 3:31:01 PM
Leahy: No court in this country would accept this as a legitimate document production.

by Andrew Hamm 9/4/2018 3:31:23 PM
Leahy: The notion that anyone here has properly reviewed the available documents is laughable.

by Andrew Hamm 9/4/2018 3:33:27 PM
Leahy (again): What is being hidden and why? Today Senate not simply phoning in vetting obligations, we're discarding it. It's a sham.

by Andrew Hamm 9/4/2018 3:34:31 PM
Leahy: Senate can be and should be the conscious of the nation. Today with this hearing it is not being the conscious of the nation.

by Andrew Hamm 9/4/2018 3:35:19 PM
Leahy: It appears you provided misleading testimony during your hearing for the last nomination. I will return to this during questioning.

by Andrew Hamm 9/4/2018 3:35:48 PM
Leahy: This is most incomplete vetting I've ever seen, and I've seen more nominations than any other senator here today.

by Andrew Hamm 9/4/2018 3:36:41 PM
And another group of spectators, and another round of protests.
Hatch is the first to acknowledge the protestors. "Mr. Chairman, we need to have this loudmouth removed." We assume he's referring to the protestor.

by Mark Walsh 9/4/2018 3:38:09 PM
Sen. John Cornyn, Republican of Texas, now up for his statement.

by Andrew Hamm 9/4/2018 3:39:05 PM
That last post composed a while ago. Again, sorry for the technical difficulties.

by Mark Walsh 9/4/2018 3:39:09 PM
Cornyn: SJC undertakes few more important tasks than SCOTUS confirmations.

by Andrew Hamm 9/4/2018 3:39:43 PM
I just took a walk outside the hearing room. There are still women dressed in Handmaid's Tale costumes in the Hart lobby.

by Mark Walsh 9/4/2018 3:40:39 PM

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
Sigma Delta Chi
Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
National Press Club Award
Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
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Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
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Awarded the Webby Award for excellence on the internet.

Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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