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Live blog of confirmation hearing | September 6, 2018

We live-blogged the third day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee. Senators completed their second and third rounds of questioning for the nominee.

3rd & 7 37yd

As to Hamdan, some of the great moments in Supreme Court history have been those when court demonstrated judicial independence in times of crisis.

by Edith Roberts 9/6/2018 8:17:38 PM
Here's a deep dive into Kavanaugh's record on national-security cases:
Judge Kavanaugh’s record in national-security cases - SCOTUSblog
SCOTUSblogJonathan Hafetz is a senior staff attorney in the Center for Democracy at the American Civil Liberties Union and a professor of law at Seton Hall Law School. In his 12 years on the bench, Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, has accumulated an extensive record in

by Andrew Hamm 9/6/2018 8:17:45 PM
Hamdan was a case about how the rule of law protects everyone who comes into court, no matter who you are.

by Edith Roberts 9/6/2018 8:18:33 PM
Flake turns to technology now. Congress is struggling with questions about digital privacy and regulating internet providers.

by Edith Roberts 9/6/2018 8:19:30 PM
How would Kavanaugh deal with balancing privacy with innovation, security with freedom?

by Edith Roberts 9/6/2018 8:19:57 PM
As Flake and Kavanaugh discuss technology and the Fourth Amendment, here's our case page on Riley v. California:
Riley v. California - SCOTUSblog
SCOTUSblogThe Supreme Court of the United States blog

by Andrew Hamm 9/6/2018 8:20:48 PM
And here's Carpenter v. U.S.
Carpenter v. United States - SCOTUSblog
SCOTUSblogThe Supreme Court of the United States blog

by Andrew Hamm 9/6/2018 8:21:24 PM
Kavanaugh: Agrees that technological developments will come before the court frequently. Chief Justice Roberts has been instrumental in writing decisions in these areas, as with this term's decision in Carpenter. Willing to update the old rule that you lose Fourth Amendment rights when you turn information over to a third party, which makes little sense in digital era when so much information is in hands of internet service providers.

by Edith Roberts 9/6/2018 8:21:55 PM
And here's our deep dive into Kavanaugh and the Fourth Amendment:
Judge Kavanaugh on the Fourth Amendment - SCOTUSblog
SCOTUSblogOrin S. Kerr is the Frances R. and John J. Duggan Distinguished Professor of Law at the University of Southern California Gould School of Law. Judge Brett Kavanaugh’s views of the Fourth Amendment have drawn significant interest following his recent nomination to the Supreme Court. This post take

by Andrew Hamm 9/6/2018 8:22:34 PM
Kavanaugh mentions other recent Supreme Court decisions that recognize need to refine Fourth Amendment doctrine to take account of new technologies.

by Edith Roberts 9/6/2018 8:22:51 PM
Kavanaugh: Judges are not Republican or Democrat, we are United States judges, so to with religious beliefs.

by Andrew Hamm 9/6/2018 8:23:37 PM
Sen. Blumenthal, D-Conn., now up.

by Andrew Hamm 9/6/2018 8:24:00 PM
Blumethal: I asked yesterday if you took positions that not all legal scholars believe Roe is settled. You said that the Supreme Court could, and declined to commit to not overturning it.

by Andrew Hamm 9/6/2018 8:24:34 PM
Blumenthal: An email has been made public in which you took that position that Roe can be overturned. Did anyone suggest to you that I would ask about this email?

by Andrew Hamm 9/6/2018 8:25:00 PM
Kavanaugh: I'm not remembering.

by Andrew Hamm 9/6/2018 8:25:17 PM
Blumenthal: Did anyone show you this email during the session yesterday at any point?

by Andrew Hamm 9/6/2018 8:25:32 PM
Kavanaugh: I've had these emails, I think. I'm not remembering.

by Andrew Hamm 9/6/2018 8:25:42 PM
This is the same email Feinstein was talking about earlier.

by Edith Roberts 9/6/2018 8:26:10 PM
Blumenthal: You were asked by Sen. Harris about conversations about special counsel investigations with anyone outside DC Circuit judges. Your answer was vague, as it was this morning. Have you discussed the special counsel investigation with anyone outside the judges?

by Andrew Hamm 9/6/2018 8:26:40 PM
Kavanaugh: I've had no inappropriate discussions with anyone?

by Andrew Hamm 9/6/2018 8:26:51 PM
Blumenthal: Appropriate or inappropriate?

by Andrew Hamm 9/6/2018 8:27:07 PM
Kavanaugh: I've made no foreshadowing. Our courthouse has a lot of activity, so those are discussions.

by Andrew Hamm 9/6/2018 8:27:25 PM
"If you're walking around in America, people are discussing it."

by Edith Roberts 9/6/2018 8:27:33 PM
Blumenthal: Have you ever talked to anyone in the White House?

by Andrew Hamm 9/6/2018 8:27:37 PM
Kavanaugh: No

by Andrew Hamm 9/6/2018 8:27:44 PM
Blumenthal: Have you ever talked about the special counsel investigation with Don McGahn or anyone else? Yes or no?

by Andrew Hamm 9/6/2018 8:28:17 PM
Kavanaugh: I'm not remembering.

by Andrew Hamm 9/6/2018 8:28:25 PM
Blumenthal: What discussions have you had?

by Andrew Hamm 9/6/2018 8:28:34 PM
Kavanaugh: There were moot preparations.

by Andrew Hamm 9/6/2018 8:28:45 PM
Blumenthal: It's pretty simple English. So you're saying no?

by Andrew Hamm 9/6/2018 8:29:17 PM
Kavanaugh: I know Mr. Mueller personally from the Bush administration. I've had no discussions of the kinds I think you're asking about.

by Andrew Hamm 9/6/2018 8:29:46 PM
Blumenthal: I'm asking about discussions of the kinds you're thinking about.

by Andrew Hamm 9/6/2018 8:29:59 PM
Kavanaugh: I haven't had any of the kind I'm thinking about.

by Andrew Hamm 9/6/2018 8:30:18 PM
Blumenthal: I'm going to take that as a no under oath.

by Andrew Hamm 9/6/2018 8:30:29 PM
Blumenthal says Kavanaugh is dodging the question.

by Edith Roberts 9/6/2018 8:31:03 PM
Blumenthal: Have you had conversations about the special counsel with anyone at Kasowitz Benson Torres?

by Andrew Hamm 9/6/2018 8:31:03 PM
Kavanaugh: No

by Andrew Hamm 9/6/2018 8:31:17 PM
Blumenthal: We talked about the independence of the judiciary. You've spoken about this and I agree. I think the heroes of this era will be the independent judiciary and the free press.

by Andrew Hamm 9/6/2018 8:31:56 PM
Blumenthal: President Trump's attacks on the judiciary have been blatant.

by Andrew Hamm 9/6/2018 8:32:13 PM
Blumenthal quotes tweet criticizing Justice Ginsburg.

by Andrew Hamm 9/6/2018 8:32:49 PM
Blumenthal quotes another tweet by Trump about Ginsburg calling her incompetent. Do you believe Ginsburg has embarrassed us all?

by Andrew Hamm 9/6/2018 8:33:17 PM
Kavanaugh: I have spoken about all the justices ...

by Andrew Hamm 9/6/2018 8:33:28 PM
Blumenthal: This is a question where less is more.

by Andrew Hamm 9/6/2018 8:33:37 PM
Kavanaugh: I am not going to get drawn into controversy.

by Andrew Hamm 9/6/2018 8:33:46 PM
Blumenthal: This is not political. This is about Justice Ginsburg.

by Andrew Hamm 9/6/2018 8:34:00 PM

Featured Posts

Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann
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The Supreme Court will release orders from the January 18 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.
The justices will meet next for their February 15 conference.
The calendar for the February sitting, which will begin on Tuesday, February 19, is available on the Supreme Court's website.
Recent Decisions
- New Prime Inc. v. Oliveira A court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration; here, truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc. falls within that exception.
- Stokeling v. United States The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.
- Culbertson v. Berryhill The Social Security Act’s fee cap of 25 percent of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.
- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
- City of Escondido, California v. Emmons The U.S. Court of Appeals for the 9th Circuit failed to conduct the analysis required by Supreme Court precedents in determining whether two Escondido police officers were entitled to qualified immunity.
- Shoop v. Hill Because Danny Hill’s intellectual disability claim must be evaluated based solely on holdings of the Supreme Court that were clearly established at the time the state-court decisions were rendered, the U.S. Court of Appeals for the 6th Circuit’s reliance on Moore v. Texas -- which was handed down much later -- was plainly improper.
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Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
- 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.
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Major Cases
- 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.
- Department of Commerce v. U.S. District Court for the Southern District of New York
  Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., 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—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
- 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 »
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Cases argued 43

Cases decided 9

Summary reversals 2

Merits cases granted to date 73

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Jan. 2019

Su	Mo	Tu	We	Th	Fr	Sa
		1 Holiday	2	3	4 Conference	5
6	7 Orders MERCK SHARP & DOHME CORP. V. ALBRECHT (17-290) OBDUSKEY V. MCCARTHY & HOLTHUS LLP (17-1307)	8 HERRERA V. WYOMING (17-532) FOURTH ESTATE PUBLIC BENEFIT CORP. V. WALL-STREET.COM, LLC (17-571) Opinions	9 FRANCHISE TAX BOARD OF CALIFORNIA V. HYATT (17-1299)	10	11 Conference	12
13	14 Orders THACKER V. TENNESSEE VALLEY AUTHORITY (17-1201) RIMINI STREET INC. V. ORACLE USA INC. (17-1625)	15 HOME DEPOT U.S.A. INC. V. JACKSON (17-1471) AZAR V. ALLINA HEALTH SERVICES (17-1484) Opinions	16 KNICK V. TOWNSHIP OF SCOTT, PENNSYLVANIA (17-647) TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION V. BLAIR (18-96)	17	18 Conference	19
20	21 Holiday	22 Orders Opinions	23	24	25	26
27	28	29	30	31

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Justice Sotomayor at Harvard

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.

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.
Silver Gavel Award
Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
American Gavel Award
Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
Webby Award
Awarded the Webby Award for excellence on the internet.

Cases argued	43
Cases decided	9
Summary reversals	2
Merits cases granted to date	73

Editor's Note :

Scribble

Live blog of confirmation hearing | September 6, 2018

We live-blogged the third day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee. Senators completed their second and third rounds of questioning for the nominee.

Featured Posts

Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann

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Merits Case Pages and Archives

Recent Decisions

Current Relists

Conference of January 18, 2019

Major Cases

Recent Special Features

Live Blog Archives

Jan. 2019

Download our App in the Apple Store

First Mondays see all

Videos see all

Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

Webby Award