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Sen. Leahy Won't Vote for Kavenaugh

Sen. Patrick Leahy has an op-ed in the Washington Post today explaining why he won't vote for Brett Kavenaugh.

Time and again, Kavanaugh appears to have misled the Senate under oath.


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Kavenaugh's Rough Week

Democrats gave Supreme Court nominee Brett Kavenaugh a tough time during his confirmation hearings this week.

I have not seen much discussion of where he stands on criminal justice issues: the rights of the accused, sentencing policy, drug law, immigrants and refugees, or the death penalty. I am more interested in his positions on those issues than on whether he would potentially give Trump a legal pass by upholding a refusal by Trump to comply with a subpoena from Mueller. The Federal Defender for the District of Columbia, A.J. Kramer, will be testifying today in support of Kavenaugh (personally, not on behalf of his office). His written remarks are here.

So long as Trump gets to pick the nominee, one will just be worse than the next. That's why elections matter so much. At Vox today, a presidential historian explains Donald Trump in one sentence:

“The fish rots from the head,” he told me, “and the stench of this administration starts at the very top.”

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Justice Kennedy Announces Retirement

Just yesterday I wrote about how important it is to consider that whoever is elected president will decide who serves on the Supreme and other federal courts. Today Justice Kennedy announced his retirement. Unfortunately, since voters in some important states that should have gone blue in 2016 voted for Donald Trump, we are in for a dismal few years of replacement judges.

Hypocritical Republicans of course want the Senate to swiftly confirm whoever Trump picks. Not so fast. Remember when Republicans wouldn't vote on Obama's choice for a Supreme Court justice because it was too close to the election and they wanted the victor in the election to choose? Well, what's good for the goose may be good for the gander. Sen. Schumer is promising there will be no vote on a Trump-selected replacement for Kennedy before the elections.

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Supreme Court Rules Warrant Needed for Cell Site Location Data

Huge, ground-breaking decision from the Supreme Court today! In a 7 to 2 ruling, the Court said a search warrant is needed for cops to obtain cell site location information from phone companies.

The opinion is here.

The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made orreceived calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents.


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Judge Kozinski Announces Retirement

9th Circuit appeals court judge Alex Kozinski is resigning immediately due to 15 allegations of sexual harassment.

In a statement provided by his lawyer, Kozinski apologized, saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike” and that, “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace.”

"It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent,” he said. “For this I sincerely apologize."

His full statement is here.

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Supreme Court Upholds Grandparent Exemption to Travel Ban

The Supreme Court has dispensed with Trump's appeal of the Hawaii court order on his travel ban in a very short Order, available here.

The Court upheld the 'Grandparent' Exemption To Trump Travel Ban'. It also stayed the Hawaii Court's exemption of refugees, pending resolution by the full 9th Circuit.

The justices, in a brief order, rejected the administration’s request that it clarify the scope of their decision last month temporarily reinstating the ban but allowing people with “a credible claim of a bona fide relationship with a person or entity in the United States” to enter the country. The court said the United States Court of Appeals for the Ninth Circuit, in San Francisco, should address the question.

And no surprise here: The judges who would have blocked implementation of the Hawaii Court's order, even on grandparents, as the case winds through the 9th Circuit Appeals Court: Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.

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Supreme Court Approves Part of Trump's Travel Ban

I knew I should have stayed away from the news entirely today. I just saw this: Supreme Court Okays Part of Trump's Travel Ban:

The Supreme Court agreed Monday to allow a limited version of President Trump’s ban on travelers from six mostly Muslim countries to take effect and will consider in the fall the president’s broad powers in immigration matters in a case that raises fundamental issues of national security and religious discrimination.

The court made an important exception: It said the ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”


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Trump Nominates 10 Conservatives For Federal Court Judgeships

Donald Trump has nominated ten people to serve as federal judges. All are conservatives.

Not a single criminal defense attorney was nominated. Several are long term prosecutors. A few were law clerks to Justice Clarence Thomas or deceased Justice Anton Scalia. Some only have state court or academic experience. [More..]

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Republicans Threaten Nuclear Option to Confirm Gorsuch

Democrats are close to having the required votes to defeat Neil Gorsuch. Republicans will then change the rules to allow passage by 51 votes (the nuclear option.)

If that means that radical right justices like William Pryor can be confirmed by 51 votes, I am not in favor of the filibuster. Trump may get to name several supreme court judges over the next few years, if he stays in office that long, and the damage he will do to the Supreme Court and federal judiciary where there are 100 vacancies, is enormous. I'm not a supporter of Gorsuch or his opinions, but he's not in the same league as William Pryor (or John Yoo, for that matter -- how long before his name comes up?)

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Neil Gorsuch Confirmation Hearings

Donald Trump is the rudest person ever. He's interrupted Neil Gorsuch's confirmation hearing to have Spicy give a press conference. CNN is out of service on my TV, Fox and MSNBC are airing the presser. Online is the only place for the hearing right now.

While I was driving, I heard him talk about civil litigants needing access to the courts. He talks a lot about himself and sports. He's not the most exciting personality.

I have no doubt he'll be confirmed, but I can think of a lot worse choices Trump could have made. I suspect Trump's aides went through their "opinions matching Scalia" file and he came up on top. [More...]

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Trump Loses in 9th Circuit: No Stay of Lower Court Immigration Order

The 9th Circuit Court of Appeals rejected Donald Trump's request for an emergency stay of a lower court order blocking implementation of his Executive Order denying visas to persons from seven countries for 90 days as unconstitutional:

{W]e hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

You can read the 9th Circuit's ruling here. [More...]

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9th Circuit to Live Stream Trump Immigration Argument

Bump and Update:

Hearing begins in two hours (3 pm PT)

From the 9th Circuit Court of Appeals:

The oral argument scheduled for Tuesday, February 7, 2017 at 3:00 p.m. PST will be available for live streaming through the court’s public website.

Here is the direct link to the live-stream.

Here is the reply brief arguing against Trump's request for an emergency stay of the lower court order. Lots of amicus briefs have been filed on both sides. Former government officials, including John Kerry, Madeline Albright and more, have filed a statement opposing Trump's request for a stay of the lower court order. They explain in detail why Trump's order endangers the United States. [More...]

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Trump Milks Media Time to Announce Supreme Court Justice

Trump picks 10th Circuit Justice Neil Gorsuch for Supreme Court.

In 5 minutes, Donald Trump will name his nominee to the Supreme Court.

In typical over-the top carnival style, he has asked two of his contenders fly to DC to appear with him, when only one will get the nod. [More...]

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Supreme Court Strikes Down TX Abortion Restrictions

The Supreme Court ruled today that a Texas law limiting access to abortions was unconstitutional:

The Supreme Court’s 5 to 3 decision ruled unconstitutional a 2013 Texas law that required all abortion providers to meet ambulatory surgical standards and physicians to have admitting privileges at a nearby hospital. Supporters of the regulations under House Bill 2 said they aimed to protect women’s health. Abortion advocates called the mandates unnecessary, expensive and an “undue burden” on women’s rights.

...In the court opinion, the justices said lawmakers couldn’t prove the rules actually protected women’s health. The move suggested restrictive abortion measures won’t stand unless policy designers prove they keep women from harm.

The opinion is here. [More...]

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Obama's Supreme Court Pick

I read the other contenders withdrew from the race.

I couldn't disagree more with Obama's announcement that he's tapped Merrick Garland for the Supreme Court.

We don't need another Alito on the Court. It's got enough conservative law and order type former prosecutors.

Republicans will love this choice. It seems to me Obama just wants to appease them and get them to back off their position that the next president should get to choose Scalia's replacement.

So disappointed.

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