#ReleaseTheList

The ultra-progressive group Demand Justice released a list of 32 potential nominees for the Supreme Court. They want Democrat presidential candidates to adopt this list or to release one of their own. This is what then-candidate Donald J. Trump did in 2016 to good effect.

I agree. Release the list! If the list(s) adopted by any of the Democrat candidates is anything like the Demand Justice list, it will be full of radicals, with little judicial experience, chosen to appease constituent groups.

Professor Josh Blackman provides a convenient grouping on The Volokh Conspiracy.

Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),


Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),


Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)


Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)


State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court)

Let’s look at the sitting judges first. All of the Federal judges were appointed by President Barack Obama. They have between five and nine years of experience and only one of them is on a Circuit Court of Appeals.

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This Reporter Gets It

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Kimberly Strassel is a journalist and member of the Wall Street Journal’s editorial board. Unlike many in her profession, she is a conservative. Moreover, she has been steadfast in her support of Judge Brett Kavanaugh and has been very vocal about it on Twitter.

Yesterday, Sen. Lisa Murkowski (RINO-AK) broke with her Republican colleagues and voted against invoking cloture on the nomination of Judge Kavanaugh. While saying that Kavanaugh was a good man she said he was not the right man for the Supreme Court “at this time”.

Strassel, in a pair of tweets, points out what Murkowski is really standing for.

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Cloture Invoked On Kavanaugh Nomination

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The Senate voted 51-49 to invoke cloture on debate regarding the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. This means that a final vote can be taken as early as Saturday afternoon. Cloture was invoked at 10:36am EDT which started the 30 hour clock on debate. If the Democrats relinquish the floor at anytime during that 30 hour period, the final vote can be called.

The only Democrat to vote for cloture was Sen. Joe Manchin (D-WV) while the only Republican to vote against it was Lisa Murkowski (R-AK). Manchin is up for re-election this year while Murkowski doesn’t have to face Alaska voters until 2022. President Trump won both states in the 2016 election.

If this vote holds without any more Republican defections, then Judge Kavanaugh will become Justice Kavanaugh. The one wrinkle in this right now is Sen. Steve Daines (R-MT) who plans to be out of town on Saturday to attend his daughter’s wedding. Too bad she didn’t have a June wedding!

The ayes and nays are below:

Grouped By Vote Position 

YEAs —51
Alexander (R-TN)
Barrasso (R-WY)
Blunt (R-MO)
Boozman (R-AR)
Burr (R-NC)
Capito (R-WV)
Cassidy (R-LA)
Collins (R-ME)
Corker (R-TN)
Cornyn (R-TX)
Cotton (R-AR)
Crapo (R-ID)
Cruz (R-TX)
Daines (R-MT)
Enzi (R-WY)
Ernst (R-IA)
Fischer (R-NE)
Flake (R-AZ)
Gardner (R-CO)
Graham (R-SC)
Grassley (R-IA)
Hatch (R-UT)
Heller (R-NV)
Hoeven (R-ND)
Hyde-Smith (R-MS)
Inhofe (R-OK)
Isakson (R-GA)
Johnson (R-WI)
Kennedy (R-LA)
Kyl (R-AZ)
Lankford (R-OK)
Lee (R-UT)
Manchin (D-WV)
McConnell (R-KY)
Moran (R-KS)
Paul (R-KY)
Perdue (R-GA)
Portman (R-OH)
Risch (R-ID)
Roberts (R-KS)
Rounds (R-SD)
Rubio (R-FL)
Sasse (R-NE)
Scott (R-SC)
Shelby (R-AL)
Sullivan (R-AK)
Thune (R-SD)
Tillis (R-NC)
Toomey (R-PA)
Wicker (R-MS)
Young (R-IN)
NAYs —49
Baldwin (D-WI)
Bennet (D-CO)
Blumenthal (D-CT)
Booker (D-NJ)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Coons (D-DE)
Cortez Masto (D-NV)
Donnelly (D-IN)
Duckworth (D-IL)
Durbin (D-IL)
Feinstein (D-CA)
Gillibrand (D-NY)
Harris (D-CA)
Hassan (D-NH)
Heinrich (D-NM)
Heitkamp (D-ND)
Hirono (D-HI)
Jones (D-AL)
Kaine (D-VA)
King (I-ME)
Klobuchar (D-MN)
Leahy (D-VT)
Markey (D-MA)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Murkowski (R-AK)
Murphy (D-CT)
Murray (D-WA)
Nelson (D-FL)
Peters (D-MI)
Reed (D-RI)
Sanders (I-VT)
Schatz (D-HI)
Schumer (D-NY)
Shaheen (D-NH)
Smith (D-MN)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-NM)
Van Hollen (D-MD)
Warner (D-VA)
Warren (D-MA)
Whitehouse (D-RI)
Wyden (D-OR)

Email Subject Line Of The Day

You have to hand it to the gun prohibitionists. Those that don’t have Mike Bloomberg’s money at their disposal will find any reason to ask for money. This is especially true of that cult of personality known as Giffords.

Here is the subject line of their latest email missive asking for money.

Gabby and Mark need you to rush an emergency donation to help us stop Brett Kavanaugh’s nomination to serve on the Supreme Court. Let me explain why this request is so important.

Don’t wait. Don’t think about it. Send money now. Operators are standing by. A donation of only $3 will feed a starving prohibitionist for a day. Wait, I think I’m getting these pleas for donations confused a bit.

The email goes on to promise, “We are no doubt going to send a number of emails about Brett Kavanaugh’s Supreme Court nomination.” At least that is honest of  their Executive Director Peter Ambler to acknowledge that this just the first in a series of emails. Having been on their mailing list for a few years, I can assure you that each and every one of them will have some “ask” for a donation or to sign up on their mailing list.

GOA Supports Kavanaugh Nomination

This is one endorsement from a gun right group I didn’t see yesterday morning. It is from Gun Owners of America. There endorsement is a bit more tempered than that of the NRA or SAF. In my opinion, it is like that of some of us in the gun rights community or that of social conservatives. We had favorites other than Kavanaugh but can live with him as he will help solidify the conservative majority on the Supreme court.

From GOA:

Erich Pratt, Executive Director of Gun Owners of America (GOA), issued the following statement on Pres. Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court:

“Gun Owners of America is optimistic that Judge Brett Kavanaugh will be a huge improvement over the retiring Justice Anthony Kennedy on many constitutional issues, including the Second Amendment.

“Initial reports suggest that Judge Kavanaugh deeply respects the Second Amendment, even though he was not the strongest of the finalists.

“Nevertheless, Judge Kavanaugh filed a pro-gun dissent in Heller II, arguing that Washington, DC’s ban on semi-automatic firearms was arbitrary and unlawful.

“In fact, his dissent was so well argued that GOA’s subsequent legal briefs have repeatedly held up his dissent as the model to follow.

“In another case, Kavanaugh correctly interpreted the Firearm Owners Protection Act to find that a defendant could not be sentenced to 30 years in prison for use of a fully-automatic firearm if he was unaware that the gun fired automatically.

“Kavanaugh also supported the prevailing opinion in the Citizens United case, which affirmed GOA’s voice in the political arena.

“GOA hopes that the Senate will confirm Kavanaugh — and that the Supreme Court will take up more Second Amendment cases, thus repealing the onerous and unconstitutional restrictions on the right to keep and bear arms that exist throughout the country.”

And Now The Reactions From The Prohibitionists, Part 3

Let it not be said that the cult of personality known as Giffords would be left out of making their opposition to Judge Brett Kavanugh known. While I may have serious doubts that Ms. Giffords actually wrote her piece in opposition, it does go out over her name.

From Giffords and Giffords Law Center:

July 9, 2018 — Giffords, the gun safety organization founded by former Congresswoman Gabrielle Giffords and Captain Mark Kelly, released the following statements after the announcement of President Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court following the retiring of Justice Anthony Kennedy.

Former Representative Gabrielle Giffords:

“In nominating Judge Kavanaugh to be the next Supreme Court justice, the Trump Administration is once again showing brazen disregard for the people it claims to protect. Judge Kavanaugh’s dangerous views on the Second Amendment are far outside the mainstream of even conservative thought and stand in direct opposition to the values and priorities of the vast majority of Americans. America needs a Supreme Court justice who respects the Second Amendment but who also realizes reasonable regulations that reduce gun violence do not infringe on anyone’s constitutional rights. But that’s not the kind of justice President Trump nominated today.

“America’s gun violence epidemic weighs daily on the minds of so many families in our country. Parents live in fear of hearing their children describe to them what it’s like to go through an active shooter drill. Too many people in communities across the country live in fear of being shot in their neighborhoods. In states across the country, students and voters have been speaking up, taking to statehouses, and demanding that lawmakers pass effective gun safety legislation. Their advocacy is delivering results: just since the massacre in Parkland, more than 50 gun safety bills have passed in 26 states. Should the Senate confirm the nomination of Judge Kavanaugh, we have every indication to believe that he will prioritize an agenda backed by the gun lobby, putting corporate interests before public safety. Make no mistake, the progress we’ve achieved passing firearm laws that save lives every day will be in serious danger.”

Hannah Shearer, Staff Attorney and Second Amendment Litigation Director at Giffords Law Center

“Judge Kavanaugh has expressed a dangerous hostility toward reasonable gun regulations and made clear he believes the government’s power to address gun violence is extremely limited. Judge Kavanaugh rejects the idea that courts should consider public safety when judging gun cases and would strike down bedrock gun laws like those that restrict civilian use of the dangerous, military-style weapons regularly used in mass shootings.

“Even Justice Scalia, one of the most conservative Supreme Court justices in modern history, endorsed reasonable firearm regulations like the ones Judge Kavanaugh would strike down. Judge Kavanaugh’s positions on the Second Amendment are outliers far outside the mainstream, and confirming him to the Supreme Court could negatively impact efforts to fight gun violence for many years to come. The notion of Judge Kavanaugh serving on our nation’s highest judicial bench should worry Americans who care about the safety of their families and communities. Now is the time for them to speak up and demand a nominee who will respect centuries of American legal tradition, recognize that gun rights have always gone hand-in-hand with responsible regulations, and put the life and liberty of all Americans ahead of the interests of the gun lobby.”

Since District of Columbia v. Heller was decided by the Supreme Court ten years ago, the lower courts have overwhelmingly upheld reasonable gun safety laws more moderate than the handgun ban Heller invalidated. The United States Supreme Court has not granted review in a significant Second Amendment case since Heller and its companion case, McDonald, and they have denied review in more than 80 cases. The confirmation of Judge Kavanaugh could mean that the Supreme Court intervenes more in these lower-court cases and overturns decisions that have consistently protected public safety.

In the near future, the Supreme Court may have the opportunity to rule on a variety of Second Amendment issues that are pending in the lower courts. For example, a series of NRA-backed lawsuits were filed this spring to challenge strong concealed carry permitting laws in New Jersey, Maryland, and New York. The NRA has also filed or supported a number of suits challenging critical gun safety measures adopted after the Parkland massacre, including laws that restrict access to the large capacity magazines used in Parkland and other mass shootings. Any one of these cases could be the next major Second Amendment case to reach the Supreme Court, with critical implications for public safety.

Frankly, I do hope Hannah Shearer is correct in her assumption that the Supreme Court might finally start hearing Second Amendment cases. Their failure to do so merely has encouraged judges in lower courts who disagreed with Heller to ignore that opinion and to use the Supreme Court as a doormat.

And Now The Reactions From The Prohibitionists, Part 2

The Brady Campaign wasted no time in signalling their opposition to Judge Kavanaugh. I’m sure like the opponents marching on the steps of the Supreme Court last night, they had pre-printed press releases with the names Hardiman, Kethledge, and Barrett inserted in them.

From the Brady Campaign:

Washington, D.C., July 9, 2018 – This evening, President Trump announced his nomination of Judge Brett Kavanaugh for the Supreme Court, replacing retiring Justice Anthony Kennedy. The Brady Campaign and Center to Prevent Gun Violence expressed serious apprehension over the nomination, citing Judge Kavanaugh’s previous hostility to common-sense gun safety laws.

Brady Campaign co-president Avery Gardiner:

“We don’t have to guess when it comes to Judge Kavanaugh’s track record on gun laws – he’s made it quite clear where he stands. And for a president who took more than $30 million from the NRA, Judge Kavanaugh is a perfect fit. This is a judge who sees no difference between assault weapons and handguns, and who has stated that there is no judicial role when it comes to regulating gun ownership. We call on Judge Kavanaugh to tell the American people clearly and plainly how he interprets the Second Amendment. If he is as hostile to gun laws as he appears to be, then we will fight this nomination tooth and nail.”

Brady Campaign co-president Kris Brown:

“The NRA paid good money to get this nomination, and make no mistake – they’re popping champagne as we speak. Wayne LaPierre called this no less than the ‘ultimate prize,’ and we can all expect the gun lobby to outspend the million dollars they spent during the last Supreme Court nomination to push for Judge Kavanaugh. We at Brady are not going to let that happen without a fight, and without demanding a rigorous and exacting standard of questioning for Judge Kavanaugh about his judicial record. Brady has been at the frontlines of the legal battles for gun safety for nearly three decades, and we will press forward with this important fight in the weeks, months, and years to come.”

Brady VP of Litigation Jonathan Lowy:

“Judge Kavanaugh must tell the American public whether he will protect their most important right — the right to be safe from gun violence — or whether he will cater to the gun lobby’s agenda to let virtually anyone carry any gun, any time, anywhere. At the end of the day, it’s a simple question. Do you believe that the right to guns overrides the right to be safe from being shot? If the answer is yes, you simply aren’t fit for a lifetime appointment to America’s highest court.”

BACKGROUND

Judge Brett Kavanaugh has a history of opposition to common-sense measures to promote gun safety.

  • In Heller v. District of Columbia (note: this is a different case than the landmark Supreme Court decision in 2008), Judge Kavanaugh dissented from the panel opinion that upheld a city law banning possession of semi-automatic rifles and requiring registration of all guns. In his dissent, Kavanaugh wrote that “there is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.”
    Kavanaugh further wrote that “semi-automatic rifles have traditionally not been banned and are in common use today, and are thus protected” by the Second Amendment. This would run counter to what numerous federal courts have ruled, placing the viewpoint far outside the mainstream legal opinion.
  • The dissent also read that there is an “absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulation,” indicating that Kavanaugh would potentially rule against any sort of common sense gun safety laws.
  • Of the panel of three Republican-appointed judges, Kavanaugh was the only one to dissent and argue that the assault weapon ban is unconstitutional.
    The Brady Center also recently published a report on the 10-year anniversary of the landmark D.C. v. Heller Supreme Court case. 


The report:

  • Discusses the reality of what Heller does and does not allow, including that there are clear and valid reasons for certain firearms, such as assault weapons, to be banned from personal use and possession;
  • Explores the ongoing position, held by Brady and which numerous courts have agreed with, that the Heller decision can coexist with reasonable gun measures and laws; and
  • Examines key developments over the past ten years, over which approximately 1,200 Second Amendment challenges have been considered by state and federal courts. Many of the disputes have focused on common-sense gun laws regarding public carry, assault weapons and large capacity magazine bans, prohibited purchasers and background checks, and gun safety regulations. In over 90% of these cases, the courts have sided with Brady’s interpretation of Heller. Notably, the Supreme Court has only agreed to hear one major Second Amendment case in the decade since Heller; a Court featuring Kavanaugh could choose to hear many more cases in the near future.


Jonathan Lowy knows that the US Constitution does not include a “right to be safe from gun violence (sic)” nor does it explicitly include a right to privacy. It does, however, have the enumerated individual right to keep and bear arms. Hmm.

They are correct that the Supreme Court might finally agree to hear cases in the future involving the Second Amendment. Since McDonald, with the exception of Caetano v. Massachusetts, the Supreme Court has not heard a Second Amendment challenge and Caetano didn’t involve firearms but rather stun guns.

Just because courts have misconstrued and ignored Heller and McDonald doesn’t mean they are right. That is akin to saying in 1910, 90% of white southerners thought segregation was correct. It wasn’t.

Finally, and I find this amusing, in the clearest indication that the Brady Campaign is not sharing in the largesse of Michael Bloomberg, they have resorted to promoting high priced lipstick as a means of fund raising.

And Now The Reactions From The Prohibitionists, Part 1

Just as sure as the sun comes up in the East, so too is the opposition by the gun prohibitionists to anyone that President Trump might have picked to replace Anthony Kennedy on the Supreme Court. It wouldn’t have mattered if it was a DC insider like Kavanaugh or an outsider like Hardiman or Kethledge. If they ever said or wrote anything that was pro-gun rights, then they were anathema.

From Michael Bloomberg’s wholly owned Everytown Moms for Illegal Mayors:

“President Trump vowed he’d never let the NRA down, and with the Kavanaugh pick, he chose someone whose judicial record demonstrates a dangerous view of the Second Amendment that elevates gun rights above public safety. We oppose this nomination and urge the Senate to vote it down.”


The Supreme Court made clear in its decision in District of Columbia v. Heller, written by Justice Antonin Scalia, that “Like most rights, the right secured by the Second Amendment is not unlimited.” The Court also confirmed “that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Judges appointed by both Republicans and Democrats since then have repeatedly upheld reasonable gun laws as consistent with the Second Amendment.


MORE INFORMATION ON JUDGE KAVANAUGH’S SECOND AMENDMENT RECORD:


  • Judge Kavanaugh has applied an extreme and dangerous interpretation of the Second Amendment when determining whether a law is constitutional, one that does not take into account a law’s impact on public safety.
  • Judge Kavanaugh has made clear he would strike down prohibitions on the AR-15 and other assault-style weapons. In 2011, he dissented from a decision upholding Washington, D.C.’s prohibition on assault-style weapons and its requirement to register handguns. The dissent put Judge Kavanaugh at odds not only with the two other Republican-appointed judges on the court hearing the case, but also every other federal and state appeals court to address the issue.

That last line says more about how judges have ignored and perverted the Supreme Court’s rulings in Heller and McDonald than it does about Judge Kavanaugh.

NSSF “Backs President’s Selection” Of Kavanaugh

The National Shooting Sports Foundation weighed in on the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy. They approve.

From NSSF:

The National Shooting Sports Foundation® (NSSF®), the trade association for the firearms, ammunition and related industries, tonight expressed its strong support for President Donald Trump’s nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia to become an Associate Justice of the United States Supreme Court.

“We are pleased to lend our support to President Trump’s nomination of Judge Kavanaugh to the Supreme Court and urge the Senate to approve his nomination before the next term begins on the first Monday in October,” said Lawrence Keane, NSSF senior vice president and general counsel. “We are confident that Judge Kavanaugh will serve our nation with distinction as an Associate Justice of our nation’s highest court and that he will make decisions that will serve to protect the Second Amendment and other Constitutionally guaranteed rights of law-abiding Americans.”

Trump Played It Safe With Kavanaugh

As you may have heard a few minutes ago, President Trump will nominate Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit to replace the retiring Justice Anthony Kennedy. Frankly, I’m a bit disappointed. I think Trump played it safe by going with the insider.

If you read my mini-bio on Kavanaugh, you know he is a Yale and Yale Law graduate who clerked for Justice Kennedy. He worked in both the Solicitor General’s Office and the White House under President George W. Bush. The only really controversial thing about Kavanaugh is that he is considered to be the principal author of Independent Counsel Ken Starr’s report on President Clinton that led to his impeachment.

Kavanaugh, a Catholic, grew up in the DC area and attended Georgetown Prep before going to Yale. As a Catholic myself, I think for the legitimacy of the Supreme Court, we need to look to someone other than Catholics or Jews to sit on the Supreme Court. While Catholicism is the largest individual religious denomination, Protestants do make the majority of the Christians in the US.

Kavanaugh does have an OK record on reining in the administrative state as you might expect for a judge on the DC Circuit. While he dissented on Heller II which was good, I’m afraid as Professor Nelson Lund has pointed out, he doesn’t quite get Heller and McDonald.

I thought Judge Amy Coney Barrett would have been the more controversial choice and that Judges Hardiman and Kethledge were much better on the Second Amendment. Moreover, none of those three attended Harvard or Yale schools of law which I saw as a big plus.

I read somewhere today that Trump thought Kethledge was “low energy” which might be how an extrovert tends to think of an introvert. As an introvert myself, I consider this bullshit and that Trump was grossly mistaken.

It is not that Kavanaugh is a bad choice but as a Second Amendment supporter above all else I just want to say, “Meh”.  Another freaking Ivy League law school grad insider just doesn’t make me feel all warm and fuzzy inside.