Susan, About That Precedent Thing

Sen. Susan Collins (R-ME), the dowager senator* from Maine, has said that she won’t support a Supreme Court nominee who might overturn Roe v. Wade.

From her interview a week ago on ABC’s This Week:

“It has been established as a constitutional right for 46 years — 45 years, and was reaffirmed 26 years ago,” Collins said. “So a nominee position, whether or not they respect precedent, will tell me a lot about whether or not they would overturn Roe v. Wade. A candidate of this import position who would overturn Roe v. Wade would not be acceptable to me, because that would indicate an activist agenda that I don’t want to see a judge have. And that would indicate to me a failure to respect precedent of fundamental tenet of our judicial system.”

This leads me to wonder whether Collins would have supported a nominee of a President Hillary Clinton who supported abortion but was committed to overturning both Heller and McDonald. I would be hard pressed to argue that she would not have.

My point in not to argue one way or another on abortion but I have watched numerous judges at both the District Court and Court of Appeals level who have thumbed their nose at Heller and McDonald in the ten and eight years respectively since they’ve been decided. You could put most judges in the 4th and 9th Circuits on that list. Moreover, the right to privacy was a right that was created out of whole cloth unlike the right to keep and bear arms which is an enumerated right found in the Bill of Rights.

Whomever President Trump announces as his nominee to replace Anthony Kennedy will presumably respect precedent. I just hope that her or she will have the gumption to say no to the lower courts who have ignored the precedent supposedly established in Heller and McDonald.

* I call Collins the dowager senator because she essentially inherited the position from former Sen. William Cohen whom she had served as a staffer early in her career.

President Trump’s SCOTUS List, Part 5

These are the final five potential nominees for the Supreme Court to replace Justice Anthony Kennedy. Of the five, Thapar seems to be the one who may or may not be on the finalist short list. He has been interviewed in the last week or so by President Trump and is reported to be a favorite of Senate Majority Leader Mitch McConnell (R-KY).

Amul  R. Thapar

Personal:

49 y.o, married to Kim Schulte Thapar, and has three children. Raised culturally Hindu but converted to Catholicism as an adult.

Current Position:

Judge, 6th Circuit Court of Appeals. Nominated by Pres. Donald Trump and confirmed by the Senate on May 25, 2017.

Education:

Boston College, B.S., 1991
University of California, Berkeley, Boalt Hall School of Law, J.D., 1994

Clerkships:

Judge S. Arthur Spiegel, U.S. District Court, Southern District of Ohio, 1994-1996
Judge Nathaniel R. Jones, 6th Circuit Court of Appeals, 1996-1997

Previous Positions:

Adjunct professor, University of Cincinnati College of Law, 1995-1997, 2002-2006
Private practice, Washington, D.C., 1997-1999
Trial advocacy instructor, Georgetown University Law Center, 1999-2000
Assistant U.S. attorney, District of Columbia, 1999-2000
General counsel, Equalfooting.com, 2000-2001
Private practice, Cincinnati, Ohio, 2001-2002
Assistant U.S. attorney, Southern District of Ohio, 2002-2006
U.S. attorney for the Eastern District of Kentucky, 2006-2007
Judge, US District Court for the Eastern District of Kentucky, 2007-2017

Scholarship:

(With Benjamin Beaton) The Pragmatism of Interpretation: A Review of Richard A. Poser, the Federal Judiciary, 116 Mich. L. Rev. 819 (2017-2018)

Judicial Opinions:

Thapar’s questionnaire for the Senate Judiciary Committee lists 10 of his most important cases in his opinion. A number involved drug trafficking of opiates. The one that got the most attention in the media, US v. Walli, had the jury convicting pacifists including a Catholic nun on charges of destruction of government property and harming the national defense. The nun wanted to get life in prison but Thapar sentenced her to 35 months. The 6th Circuit threw out the convictions on harming the national defense but affirmed the destruction of government property convictions.

Opposition:

The Alliance for Justice accused Thapar of being “a narrow-minded elitist who would protect corporations, the wealthy, and the powerful over all Americans.” I presume this is because some of his cases involved coal companies as would be expected in eastern Kentucky. There were critical of him in one of his more notable cases, US v. Walli, where antiwar pacifists broke into the Y-12 National Security Complex in Oak Ridge, TN and threw blood on enriched uranium. His decision was reversed in part and affirmed in part by the 6th Circuit.

Timothy M. Tymkovich

Personal:

61 y.o., married to Western novelist Suzanne Lyon, and has two sons, Michael and Jay. Tymkovich is a third generation Coloradan.

Current Position:

Chief Judge, 10th Circuit Court of Appeals. Nominated by Pres. George W. Bush and confirmed by the Senate on April 1, 2003. Chief Judge since 2015.

Education:

Colorado College, B.A., 1979
University of Colorado Law School, J.D., 1982

Clerkships:

Justice William H. Erickson, Colorado Supreme Court, 1982-1983

Previous Positions:

Private practice, Colorado, 1983-1991
Solicitor general, State of Colorado, 1991-1996
Private practice, Denver, Colorado, 1996-2003

Scholarship:

Colorado Survey: Recent Legislation and Colorado Supreme Court Decisions Referendum and Rezoning, 53 U. Colo. L. Rev. 745, (1982)
William H. Erickson, 63 Denv. U. L. Rev. 11 (1985-1986)
(With John Dailey and Paul Farley) A Tale of Three Theories: Reason and Prejudice in the Battle over Amendment 2, 68 U. Colo. L. Rev. 287 (1997)
The Law Review and the Judiciary, 75 U. Colo. L. Rev. [i] (2004)
The Problem with Pretext, 85 Denv. U. L. Rev. 503 (2007-2008)
Are State Constitutions Constitutional, 97 Minn. L. Rev. 1804 (2012-2013)
William H. Erickson (1924-2010), 47 Colo. Law. 72 (2018)

Judicial Opinions:

Tymkovich wrote a dissenting opinion in Bonidy v. USPS in which he argued that post office parking lots were not sensitive places and that the Second Amendment applies outside the home. Tymkovich also wrote the 10th Circuit’s opinion in the Hobby Lobby case in finding that they were not obligated to provide certain forms of birth control due to their religious objections under ObamaCare.

Opposition:

The Alliance for Justice accuses Tymkovich of being hostile to LGBTQ rights and women’s reproductive rights. They also said he opposed Denver’s efforts to ban “assault weapons” which is OK in my book.

Don R. Willett

Personal:

51 y.o., married to Tiffany Willett (also an attorney), and has three children. Willett is the first in his family to attend, much less graduate, college. Adopted father died when Willett was 6 and his mother had to become a truck stop waitress to support the family. Death of his father without a will is what planted the seed in his mind to become a lawyer. Was named Texas Twitter Laureate by Texas House of Representatives.

Current Position:

Judge, 5th Circuit Court of Appeals. Nominated by Pres. Donald Trump. Confirmed by the Senate on Dec. 13, 2017.

Education:

Baylor University, B.B.A., 1988
Duke University School of Law, J.D., 1992
Duke University, M.A., Political Science, 1992
Duke University School of Law, LL.M., 2016

Clerkships:

Judge Jerre S. Williams, 5th Circuit Court of Appeals, 1992-1993

Previous Positions:

Associate, Haynes & Boone, Austin, Texas, 1993-1996
Director of research and special projects, Office of Gov. George W. Bush, Texas, 1996-2000
Domestic policy and special projects advisor, George W. Bush presidential campaign and transition team, 2000-2001
Special assistant to President George W. Bush, White House Office of Faith-Based and Community Initiatives, 2001-2002
Deputy assistant attorney general, Office of Legal Policy, U.S. Department of Justice, 2002-2003
Deputy attorney general for legal counsel, State of Texas, 2003-2005
Justice, Supreme Court of Texas, 2005-2017. Appointed by Gov. Rick Perry.

Scholarship:

(With T. Vance McMahan) Hope from Hopwood: Charting a Positive Civil Rights Course for Texas and the Nation, 10 Stan. L. & Pol’y Rev. 163 (1998-1999)
Book Reviews – An Inconvenient Truth: Conservatives Acting Charitably, 12 Tex. Rev. L. & Pol. 181 (2007-2008)
Foreward, 64 S.M.U. L. Rev. 1 (2011)
Pre-“Originalism”, 36 Harv. J. L.& Public Pol’y 277 (2013)
Don’t Stop the Presses: Texas High Court Justices Help Revitalize a Revered Judicial Journal, 78 Tex. B. J. 628 (2016)
(With John Browning) Rules of Engagement: Exploring Judicial Use of Social Media, 79 Tex. B. J. 100 (2016)
As A Texas Justice, I Know Antonin Scalia Was A Giatn in American Law and Culture, Indep. J. Rev., (Apr 2016)

Judicial Opinions:

Willett served as an Associate Justice on the Texas Supreme Court for over 12 years. In that time he has authored hundreds of opinions. Google Scholar has a list of them here. Interestingly, the first one I read, Tanner v. Nationwide Mutual Fire Ins. Co, found for the injured and against the insurance company. Imagine that. Willett’s first opinion on the 5th Circuit included his usual brand of humor including the conclusion that, “Maturino’s plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.” How can you not love that?

Opposition:

Let’s face it and conclude that Don Willett’s up from the poor by his own bootstraps background must stick in the craw of his opponents. That plus his sense of humor seems to be off-putting to his opponents on the left. As such, the Alliance for Justice is throwing everything plus the kitchen sink at him. Anti-women’s rights. Check. Anti-gay. Check. Anti-worker. Check. Anti-square cornbread. Check. Oh wait, that last one wasn’t on their list but I’d be surprised if it wasn’t.

Patrick R. Wyrick

Personal:

37 y.o., married to Jamie Talbert Wyrick, and has twin sons and a daughter. Played baseball for the University of Oklahoma. Drafted by the Montreal Expos in 1999. Wife Jamie is a physical therapist who played basketball for OU, is a physical therapist, and is an ovarian cancer survivor.

Current Position:

Associate Justice, District 2, Oklahoma Supreme Court. Nominated by Pres. Donald Trump to be US District Court Judge for the Western District of Oklahoma in April 2018. Passed out of Judiciary Committee and waiting for Senate confirmation.

Education:

University of Oklahoma, BA, 2004
University of Oklahoma School of Law, JD, 2007

Clerkships:

Judge James H. Payne, US District Court for Districts of Eastern, Northern, and Western Oklahoma, 2007-2008

Previous Positions:

RH Relief Pitcher, GCL Marlins and Jamestown Jammers, Minor League Baseball, 2002
Associate, Gable Gotwals, Oklahoma City, OK, 2008-2011
Solicitor General, Oklahoma Attorney General’s office, 2011-2017

Scholarship:

(With Dale Cottingham) “Schedules of Use” for Appropriated Streamwater – What Every Municipality Should Know, 81 Okla. Bar J. 1867 (2010)

Judicial Opinions:

Wyrick has only served on the Oklahoma Supreme Court for about a year and a half. Thus, he has had limited opportunity to establish a long record of judicial opinions. However, as his Senate Judiciary Committee questionnaire makes clear, he has authored both majority opinions and dissenting opinions. He has found in favor of both insurance companies as well as the injured. Wyrick did dissent in a case involving a claim of permanent disability where the person had never had an actual adjudication of his disability and thus wasn’t entitled to payments from a special fund. He also authored an opinion regarding the constitutionality of an OK law that levied “smoking cessation fees” on cigarettes. He found that it was a revenue bill and its method of passage without a super-majority violated the state constitution.

Opposition:

The Alliance for Justice is strongly opposing Wyrick for both the SCOTUS and to be a US District Court judge. They accuse him of being too close to former Oklahoma AG (and former EPA Administrator) Scott Pruitt among other things. On gun rights Wyrick signed an OK AG Opinion saying that Oklahomans can carry concealed or openly if they have a permit from another state. That is anathema to the AFJ. The bulk of their criticism of Wyrick comes from his tenure as Solicitor General and not on his work on the Oklahoma Supreme Court.

Robert P. Young Jr.

Personal:

67 y.o., married to Dr. Linda Hotchkiss, a psychiatrist, and has two grown children.

Current Position:

Partner, Dickinson Wright, Lansing, MI
Adjunct Professor, Michigan State University School of Law

Education:

Harvard University, AB, 1974
Harvard University Law School, JD, 1977

Previous Positions:

Associate and Partner, Dickinson Wright, Detroit, MI, 1978-1992
General Counsel, AAA of Michigan, 1992-1995
Judge, Michigan Court of Appeals, 1995-1999
Associate Justice, Michigan Supreme Court, 1999-2011
Chief Justice, Michigan Supreme Court, 2011-2017

Scholarship:

Co-Editor, Michigan Civil Procedure During Trial, 2d Ed. (1989)
Co-Editor, Michigan Civil Procedure (1999)
State Jurisprudence, the Role of the Courts and the Rule of Law. 8 TEX. REV. LAW & POL. 299 (2004)
A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial Philosophy, 33 Okla. City U. L. Rev. 263 (2008)
“Active Liberty and the Problem of Judicial Oligarchy,” in The Supreme Court and the Idea of the Constitutionalism (2009) Co-Editor, Michigan Civil Procedure, 2d Ed. (2012)

Judicial Opinions:

A year before the US Supreme Court decided the Kelo case, the Michigan Supreme Court ruled in an opinion authored by Justice Young that the Michigan constitution placed strong restrictions on the use of eminent domain for private purposes and the cases in questions did not meet those restrictions. In another case, he authored an advisory ruling by the Michigan Supreme Court saying that requiring voter identification was a “reasonable, nondiscriminatory” requirement to ensure fair elections. He concluded that the right to vote also include the assurance that one’s vote will not be cancelled out by fraudulent votes. Young angered environmentalists when he wrote that in clean water cases under the Michigan Environmental Protection Act plaintiffs must suffer a concrete injury that is actual or imminent in order to have standing and not some hypothetical injury.

Opposition:

The Alliance for Justice mentions both the voter ID and the clean water cases in their muted opposition to Young. I presume it is muted because he is 67 years old and out of the expected age range for Kennedy’s replacement. 

President Trump’s SCOTUS List, Part 4

This group of judges includes the only Article I judge, Judge Margaret Ryan of the US Court of Appeals for the Armed Forces, who unlike the others does not serve a life term of office. The other judges on this list – Newsom, Pryor, Stras, and Sykes – are Article III Court of Appeals judges with a liftetime appointment.

Kevin C. Newsom

Personal:

46 y.o., married to Deborah Wilgus Newsom, and has two sons. Raised by a single mother as his alcoholic father was mostly absent. Sister has a rare genetic disorder called Smith-Lemli-Opitz syndrome which left her physically and mentally disabled.

Current Position:

Judge, 11th Circuit Court of Appeals. Appointed by President Trump in 2017 and confirmed on August 1, 2017

Education:

Samford University, B.A. summa cum laude, 1994
Harvard Law School, J.D. magna cum laude, 1997

Clerkships:

Judge Diarmuid F. O’Scannlain, U.S. Court of Appeals for the Ninth Circuit, 1997-1998
Justice David H. Souter, Supreme Court of the United States, 2000-2001

Previous Positions:

Associate, Covington & Burling LLP, Washington, D.C., 1998-2000, 2001-2003
Adjunct professor of law, Georgetown University Law Center, 2002
Solicitor general, State of Alabama, 2003-2007
Partner, Bradley Arant Boult Cummings LLP, Birmingham, Alabama, 2007-2017
Adjunct professor, Samford University, Cumberland School of Law, 2009-2011
Adjunct professor, Vanderbilt University Law School, 2011

Scholarship:

Suspicionless drug testing and the Fourth Amendment: Vernonia School District 47J v. Acton, 115 S. Ct. 2386, 19 Harv. J.L. & Pub. Pol’y 209 (1995)
Constitutional Law. Establishment Clause. Seventh Circuit Invalidates Illinois Law Mandating Good Friday School Closure. Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), 109 Harv. L. Rev. 693 (1996)
The Supreme Court, 1995 Term – Leading Cases, 110 Harv. L. Rev. 277 (1996)
Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000)
Discrimination, Retaliation, and Implied Private Rights of Action, 6 Engage: J. Federalist Soc’y Prac. Groups 50 (2005)
(With MJ Ayers) A Brave New World of Judicial Recusal? – The United States Supreme Court Enters the Fray, 70 Ala. Law. 369 (2009)
(With Anna Manasco Dionne) Commentary: Practice trumps theory in McDonald v. City of Chicago, Nat’l Law J. July 21, 2010
(With Jack Wilson) Commentary: The Court on class arbitration, Nat’l Law J. Oct. 18, 2010
The State Solicitor General Boom, 32 App. Prac. 6 (2013)
(With Anna Manasco) On the Merits: Brown v. Electrolux Home Products, Inc., Wash Legal Found., Wash. D.C., Sept 11, 2015

Judicial Opinions:

Newsom’s first opinion after joining the 11th Circuit involved a tax case dealing with the deductibility of expenses for in vitro fertilization by a gay man. The unanimous court panel said no and also it didn’t deny him due process because hetrosexual couples using IVF weren’t allowed the deduction either. He opened his opinion stating, “This is a tax case. Fear not, keep reading.” In another case, Newsom joined the majority for a 2-1 decision against a prisoner in Brevard County, FL who claimed inhumane and unconstitutional conditions. The People for the American Way (sic) highlighted this per curium decision in their blog (and it should be noted they opposed his confirmation from the get-go). In another case, Newsom joined in the unanimous decision in favor of a female LEO who was demoted by an Alabama police department for seeking to breastfeed her child.

Opposition:

To say that the Alliance for Justice doesn’t like Newsom is an understatement. They accuse him of being anti-civil rights because he has criticized substantive due process which they claim would be bad for women’s and LGBTQ rights and Title IX cases. They also castigate him for his defense of Alabama death penalty cases while serving as Solicitor General of Alabama which was, you know, kinda his job. What they and the People for the American Way are really mad about is that Alabama’s then senators refused to sign a blue slip for Judge Abdul Kallon, an African-American, to be on the 11th Circuit Court of Appeals and Newsom got the job instead.

William H. Pryor, Jr.

Personal:

56 y.o., married to Kristan Wilson Pryor, and has two daughters. Catholic.

Current Position:

Judge, 11th Circuit Court of Appeals. Recess appointment on Feb. 20, 2004. Appointed by Pres. George W. Bush and confirmed on June 9, 2005.

Education:

Northeast Louisiana University (now University of Louisiana at Monroe), B.A., 1984
Tulane University Law School, J.D.  Magna Cum Laude, 1987

Clerkships:

Judge John Minor Wisdom, U.S. Court of Appeals for the Fifth Circuit, 1987-1988

Previous Positions:

Associate, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, AL, 1988-1991
Partner, Walston, Stabler, Wells, Anderson & Bains, Birmingham, AL, 1991-1995
Adjunct professor, Samford University, Cumberland School of Law, 1989-1995
Deputy attorney general, State of Alabama, 1995-1997
Attorney general, State of Alabama, 1997-2004
Visiting Prof., University of Alabama Law School, 2006-Present

Scholarship:

Note, The Single Incident Inference of Municipal Liability Under Section 1893: City of Oklahoma City v. Tuttle, 60 Tul. L. Rev. 874 (1986)
(With Benjamin Rowe) A Survey of Alabama Law Pertaining to Improper Closing Arguments, 50 Ala. Law. 9 (1989)
Applying Batson in Civil Trials: The Greatest Sideshow on Earth, 22 Cumb. L. Rev. 49 (1991-1992)
A Comparison of Abuses and Reforms of Class Actions and Multigovernment Lawsuits, 74 Tul. L. Rev. 1885 (1999-2000)
“Comment,” 31 Seton Hall L. Rev: 604 (2001)
(With Francis McGovern & Ronald Rychlak) Regulation through Litigation – Panel, 71 Miss. L.J. 613 (2001-2002)
Madison’s Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 Ala. L. Rev. 1167 (2001-2002)
The Demand for Clarity; Federalism, Statutory Construction, and the 2000 Term, 32 Cumb. L. Rev. 361 (2001-2002)
Christian Duty and the Rule of Law, 34 Cumb. L. Rev. 1 (2003)
Lessons of a Sentencing Reformer from the Deep South, 105 Colum. L. Rev. 943 (2005)
The Murder of Father James Coyle, The Prosecution of Edwin Stephenson, and the True Calling of Lawyers, 20 Notre Dame J. L. Ethics & Pub. Pol’y 401 (2006)
The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol’y Rev. 347 (2006)
Foreign and International Law Sources in Domestic Constitutional Interpretation, 30 Harv. J.L. & Pub. Pol’y 173 (2006-2007)
Judicial Independence and the Lesson of History, 68 Ala. Law. 389 (2007)
Not-So-Serious Threats to Judicial Independence, 93 Va. L. Rev. 1759 (2007)
The Perspective of a Junior Circuit Judge on Judicial Modesty, 60 Fla. L. Rev. 1007 (2008)
Moral Duty and the Rule of Law, 31 Harv. J. L. & Pub. Pol’y 153 (2008)
Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2010-2011)

Judicial Opinions:

Given that Pryor has served on the 11th Circuit for over 14 years, he has served on a lot of cases and rendered a number of opinions. Here is a list of his notable decisions. None of these seem to implicate the Second Amendment. With regard to the Second Amendment, Pryor has always indicated his strong support for an individual right to keep and bear arms and was very critical of the Clinton Administration’s attempts at lawfare against the firearms industry.

Opposition:

Angered some social conservatives because while serving as Alabama’s Attorney General he removed Chief Justice Roy Moore from office for violating a Federal court order. As might be expected, he is hated by the left because he characterized both Miranda and Roe “as the worst cases of judicial activism”. He also ruled in a 2009 case that requiring a voter ID as in Georgia placed an “insignificant burden” on voters.

Margaret A. “Meg” Ryan

Personal:

54 y.o., married to Michael Collins. No children. Attended law school under the Marine Corps Legal Education Program. Deployed with II & III MEF to Philippines and Saudi Arabia (Desert Storm)

Current Position:

Judge, Court of Appeals for the Armed Forces. Nominated in 2006 by Pres. George W. Bush for a term of 15 years. Confirmed by a Senate voice vote on Dec. 9, 2006.

Education:

Knox College, BA Cum Laude, 1985
University of Chicago, 1985-1986, no degree
USMC Communications Electronics Officers School, Honor Graduate, 1988
University of Notre Dame Law School, JD, Summa Cum Laude, 1995
Naval Justice School, Graduated with honors, 1995

Clerkships:

Judge J. Michael Luttig, 4th Circuit Court of Appeals, 2000-2001
Justice Clarence Thomas, Supreme Court of the United States, 2001-2002

Previous Positions:

Enlisted, US Marine Corps Reserve, 1986-1987
Major (final rank), platoon/company commander, staff officer, operations officer, and Judge Advocate, US Marine Corps, 1987-1999
Aide de Camp, Commandant of the Marine Corps Charles Krulak, 1997-1999
Associate, Cooper Carvin & Rosenthal, Washington, DC, 1999-2000
Partner, Bartlit Beck Herman Palenchar & Scott LLP, Denver, CO, 2002-2004
Partner, Wiley Rein & Fielding LLP, Washington, DC, 2004-2006

Judicial Opinions:

In US v. Wilcox, she found that for a service member to be charged under Article 134, UCMJ, for speech discrediting the military, that the speech must be shown to have a clear and palpable connection to the military mission or environment. In US v. Elespuru, she found that the lower court’s conviction on multiple charges brought due to the “exigencies of proof” constituted double jeopardy. More of her decisions can be found here.

Opposition:

There seems to be no opposition to Judge Ryan which may indicate that while she is on Trump’s SCOTUS list she isn’t considered likely to get the nod.

David R. Stras

Personal:

44 y.o., married to Heather Stras, and has two children. Jewish. Paternal grandparents are Holocaust survivors.

Current Position:

Judge, 8th Circuit Court of Appeals. Nominated by Pres. Donald Trump in 2018. Confirmed by the Senate on Jan. 30, 2018. Originally nominated on May 8, 2017; no Senate vote.

Education:

University of Kansas, B.A., 1995
University of Kansas School of Business, M.B.A., 1999
University of Kansas School of Law, J.D., 1999

Clerkships:

Judge Melvin Brunetti, 9th Circuit Court of Appeals, 1999-2000
Judge J. Michael Luttig, 4th Circuit Court of Appeals, 2000-2001
Justice Clarence Thomas, Supreme Court of the United States, 2002-2003

Previous Positions:

Associate, Sidley Austin, Washington, D.C., 2001-2002
Hugo Black faculty fellow, University of Alabama School of Law, 2003-2004
University of Minnesota Law School, 2004-2011

  • Associate professor of law, 2004-2010
  • Co-director, Institute for Law and Politics, 2007-2010
  • Associate professor of political science (through affiliation), 2008-2010
  • Vance K. Opperman research scholar, 2009-2010
  • Adjunct professor, 2011

Visiting professor of law, Washington University School of Law, 2008
Of Counsel,Faegre & Bensen, Minneapolis, Minnesota, 2009-2010
Associate justice, Minnesota Supreme Court, 2010-2018. Appointed by Gov. Tim Pawlenty.
Visiting professor, Vanderbilt University Law School, 2012
Adjunct professor, Indiana University Maurer School of Law, 2013
Adjunct faculty member, University of Iowa College of Law, 2014-

Scholarship:

Comment, An Invitation to Discrimination: How Congress and the Courts Leave Most Partners and Shareholders Unprotected from Discriminatory Employment Practices, 47 U. KAN. L. REV. 239 (1998)
(With Ryan Scott) Retaining Life Tenure: The Case for a “Golden Parachute”, 83 Wash. U.L.Q. 1397 (2006)
(With Karla Vehrs) Foreward: The Future of the Supreme Court: Institutional Reform and Beyond, 90 Minn. L. Rev. 1147 (2006)
(With Ryan Scott) Are Senior Judges Unconstitutional?, 92 Cornell L. Rev. 453 (2007)
The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947 (2007)
(With Ryan Scott) An Empirical Analysis of Life Tenure: A Response to Professors Calabresi & Lindgren, 30 Harv. J. L. & Pub. Pol. 791 (2007)
Why Supreme Court Justices Should Ride Circuit Again, 91 Minn. L. Rev. 1710 (2007)
Understanding the New Politics of Judicial Appointments, 86 Tex. L. Rev. 1033 (2008)
(With Ryan Scott) Navigating the New Politics of Judicial Appointments, 101 NW. L. Rev. 1869 (2008)
Pierce Butler: A Supreme Technician, 62 Vand. L. Rev. 695 (2009)
(Stephen Burbank, Charles Cooper, and James Lindgren) Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Non-renewable Terms?, 12 Barry L. Rev. 173 (Spring 2009)
(With Arthur Hellman and Lauren Robel) Federal Courts: Cases and Materials on Judicial Federalism and the Lawyering Process (Ed. 1 – 4, 2009-2017)
(With Lauren Robel et al) Judicial Code Supplement: Title 28 and Related Statutes (2010,2013, 2015, & 2016)
(With Shaun Pettigrew) The Rising Caseload in the Fourth Circuit: A Statistical and Institutional Analysis, 61 S. C. L. Rev. 421 (2010)
The Supreme Court’s Declining Plenary Docket: A Membership-Based Explanation, 27 Const. Comm. 151 (2010)
(With James Spriggs), Explaining Plurality Opinions, 99 Georgetown L. J. 515 (2011)
(With Ryan Owens and David Simon) Explaining the Supreme Court’s Shrinking Docket, 53 William and Mary L. R. 1219 (2012)
(With Diane Sykes and James Wynn Jr) Panel Discussion: Judges’ Perspectives on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (2014)
Keynote Address: Secret Agents: Using Law Clerks Effectively, 98 Marq. L. Rev. 151 (2014)
(With Timothy Johnson and Ryan Black) Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments, 98 Marq. L. Rev. 21 (2014)
(With Aaron Caplan et al) How the First Amendment Procedures Protect First Amendment Substance, 65 Cath. U. L. Rev. 185 (2015)

Judicial Opinions:

While on the 8th Circuit Court of Appeals, Stras has authored only one opinion in his short time on the court. In Brazil v. Arkansas Dept of Human Resources, a case involving claims of employment discrimination, the matter was whether the plaintiff was entitled to injunctive relief regarding a transfer. Given she had already accepted a transfer, the case was remanded with instructions to dismiss for lack of subject matter jurisdiction. Stras has heard 22 cases on the court since his confirmation. The only Second Amendment case involved a person convicted of having unregistered silencers and unregistered short barreled rifles in violation of the NFA. In a per curium unpublished opinion, the court found that the District Court had made no errors and thus denied the appeal.

Opposition:

The Alliance for Justice opposed Stras’ nomination to the 8th Circuit and continues to oppose Stras. They have called him an “ultra-conservative” who votes against persons with disabilities and voting rights. I think they are also mad at him for disparaging Sonia Sotomayor’s testimony at her confirmation hearings as wooden and describing her as a “mediocrity”. I can’t disagree.

Diane Sykes

Personal:

60 y.o., divorced, formerly married to Charlie Sykes, political commentator and talk show host from 1980-1999. Has two children with Sykes.

Current Position:

Judge, 7th Circuit Court of Appeals. Nominated by Pres. George W. Bush and confirmed on June 24, 2004.

Education:

Northwestern University, B.S., 1980
Marquette University Law School, J.D., 1984

Clerkships:

Judge Terence T. Evans, U.S. District Court for the Eastern District of Wisconsin, 1984-1985

Previous Positions:

Journalist, Milwaukee Journal, 1980-1981
Associate, Whyte & Hirschboeck, Milwaukee, Wisconsin, 1985-1992
Judge, Wisconsin Circuit Court, Milwaukee County, 1992-1999
Justice, Wisconsin Supreme Court, 1999-2004

Scholarship:

Reflections on the Wisconsin Supreme Court, 89 Marq. L. Rev. 723 (2005-2006)
Of a Judiciary Nature: Observations on Chief Justice’s First Opinions, 34 Pepp. L. Rev. 1027 (2006-2007)
Religious Liberties: The Role of Religion in Public Debate, 20 Regent U. L. Rev. 301 (2007-2008)
Citation to Unpublished Orders under New FRAP Rule 32.1 and Circuit Rule 32.1: Early Experience in the Seventh Circuit, 32 S. Ill. U. L.J. 579 (2007-2008)
Independence v. Accountability: Finding a Balance Amidst the Changing Politics of State-Court Judicial Selection, 92 Marq. L. Rev. 341 (2008-2009)
Gender and Judging, 94 Marq. L. Rev. 1381 (2010-2011)
The New Federalism: Confessions of a Former State Supreme Court Justice, 38 Okla. City U. L. Rev. 367 (2013)
Minimalism and Its Limits, 2014-2015 Cato Sup. Ct. Rev. 17 (2014-2015)
(With David Stras and James Wynn Jr) Judges’ Perspectives on Law Clark Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (2014-2015)

Judicial Opinions:

The key case for our purposes involving Judge Sykes was Ezell v. City of Chicago (2011) where Sykes wrote the opinion. She found that Chicago’s ban on gun ranges violated the Second Amendment. The follow-on Ezell II case also featured an opinion by Sykes who said Chicago’s zoning of ranges was so restrictive that only 2.2% of the area qualified and none in places where they would commercially viable.

Opposition:

Sykes was criticized by the Alliance for Justice for her decision in Ezell (no surprise!), for refusing an en banc hearing for a discrimination case involving AutoZone, for reinstating Wisconsin’s Voter ID law, and finally for saying that for-profit companies could challenge the contraception mandate of ObamaCare.

President Trump’s SCOTUS List, Part 3

These next five potential nominees include the only non-judge on the list – Sen. Mike Lee (R-UT) and the only District Court or non-appellate level judge on the list – Federico Moreno of the Southern District of Florida. My gut feeling is that only Sen. Mike Lee might make the short list if President Trump rolls the dice and takes the chance that a few Democrats will support one of their own colleagues.

One thing I have noticed is that both Joan Larsen and Mike Lee were associates at Sidley Austin at the same time period that our favorite 2A attorney, Alan Gura, was an associate there.

Joan L. Larsen

Personal: 

49 y.o., married to Adam Pritchard who is a professor of law at the University of Michigan Law School, and has two children.


Current Position: 

Judge, 6th Circuit Court of Appeals. Nominated by Pres. Donald Trump and confirmed Nov. 1, 2017.

Education: 

University of Northern Iowa, B.A., Summa Cum Laude, 1990
Northwestern University School of Law, J.D., 1st in class, 1993

Clerkships: 

Judge David B. Sentelle, U.S. Court of Appeals for the District of Columbia Circuit, 1993-1994
Justice Antonin Scalia, Supreme Court of the United State, 1994-1995

Previous Positions: 

Associate, Sidley Austin LLP, Washington, DC, 1995-1997
Visiting Asst Prof., Northwestern University School of Law, 1998
Visiting Prof of Law, University of Michigan School of Law, 1998-2001
Dep. Asst. Attorney General, Office of Legal Counsel, US Department of Justice, 2002-2003
Lecturer in Law & Adjunct Prof., University of Michigan School of Law, 2003-present
Visiting Asst Prof., University of Iowa School of Law, 2006
Associate Justice, Michigan Supreme Court, 2015-2017

Scholarship: 

Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b), 87 Nw. U. L. Rev. 651 (1993)
One Person One Office: Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1993-1994)
Constitutionalism without Courts, 94 Nw. U. L. Rev. 983 (2000)
Importing Constitutional Norms from a Wider Civilization: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283 (2004)
Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J 959 (2010)
Incompatibility Clause in The Heritage Guide to the Constitution, 2nd Ed. (2014)

Judicial Opinions: 

For a review of her judicial decisions, see this the blog post from The Vetting Room and this profile from the SCOTUSBlog. Her record on the Michigan Supreme Court tends to be conservative but has voted with the more liberal justices. Since Larsen has been on the 6th Circuit, she participated in eight cases with a published opinion and 28 cases with an unpublished opinion. The cases involved a variety of criminal issues, disability cases, immigration appeals, and financial transactions. None involved any issue concerning the Second Amendment.

Opposition: 

The opposition from the Alliance for Justice is centered on Larsen’s scholarship and her time with the Office of Legal Counsel. They accuse Larsen of siding with the wealthy and powerful over the rights of workers while on the 6th Circuit. Interestingly, they ignore a case where she found for a union instead of the non-union worker along with another case where she found the administrative law judge had improperly denied disability benefits. I’d say they engaged in cherry-picking to come to their conclusion. People for the American Way (sic) say in a letter opposing Larsen when she was nominated for the 6th Circuit accused her of being someone who would “diminish the rights of ordinary Americans and enable dangerous abuses of power by the president.”

Michael S. “Mike” Lee

Personal: 

47 y.o., married to Sharon Burr Lee, and has three children. Mormon. His father, Rex Lee, was US Solicitor General during the Reagan Administration and later was the 10th President of BYU. Is the younger brother of Thomas R. Lee. Sen. Tom Udall (D-NM) is a second cousin.

Current Position: 

United State Senator representing Utah. First elected in 2010. 

Education 


:
Brigham Young University, BA, 1994
Brigham Young University J. Reuben Clark School of Law, JD, 1997

Clerkships: 

Judge Dee Benson, US District Court for the District of Utah, 1997-1998
Justice Samuel Alito, Supreme Court of the United States, 1998-1999

Previous Positions: 

Associate, Sidley Austin, Washington, DC, 1999-2002
Asst. US Attorney, District of Utah, 2002-2005
General Counsel, Office of Gov. Jon Huntsman, Salt Lake City, UT, 2005-2006
Partner, Howrey LLP, Salt Lake City,UT, 2006-2010

Scholarship: 

The Freedom Agenda: Why a Balanced Budget Amendment is Necessary to Restore Constitutional Government (2011)
Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court’s Obamacare Ruling (2013)
Our Lost Constitution: The Willful Subversion of America’s Founding Document (2015)
Written Out of History: The Forgotten Founders Who Fought Big Government (2017)

Opposition: 

The National Review said if Mike Lee was picked he would be hard to “Bork” as he has a long record of bipartisanship. He has co-sponsored bills with 36 out of the 49 sitting Democrats in the Senate including Chuck Schumer, Kamala Harris, Cory Booker, Dick Durbin, and Elizabeth Warren. If selected, Lee would be the 16th senator to sit on the Supreme Court and the first since Hugo Black. Lee has a solid conservative record from all the usual sources which upsets the opposition. The Alliance for Justice says, “Senator Lee’s views of the Constitution are radically conservative, even when compared with the record of his former boss Justice Alito. Like D.C. Circuit Judge Janice Rogers Brown, Lee is part of a movement of the wealthy and powerful to restore the “Lochner era” and use the Constitution as pretext to roll back progress made on economic and social rights throughout the 20th century.”

Thomas R. Lee

Personal: 

53 y.o., married to Kimberly Lee, and has six children. Mormon. His father, Rex Lee, was US Solicitor General during the Reagan Administration and later was the 10th President of BYU. Is the younger brother of Sen. Mike Lee. Sen. Tom Udall (D-NM) is a second cousin.
Current Position:
Associate Chief Justice, Utah Supreme Court. Appointed to the court by Gov. Gary Herbert in 2010.

Education: 

Brigham Young University, BA Summa Cum Laude, 1988
University of Chicago Law School, JD, 1991

Clerkships: 

Judge J. Harvie Wilkinson III, 4th Circuit Court of Appeals, 1991-1992
Justice Clarence Thomas, Supreme Court of the United States, 1994-1995
Previous Positions:
Shareholder, Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, UT, 1995-1997
Of Counsel, Howard Phillips & Andersen, Salt Lake City, UT, 1997-2004, 2005-2010
Rex and Maureen Rawlinson Professor of Law, Brigham Young University J. Reuben Clark School of Law, 1997-2010 (on leave 2004-2005)
Dep. Asst. Attorney General, Civil Division, US Department of Justice, 2004-2005
Distinguished Lecturer, Brigham Young University J. Reuben Clark School of Law, 2010- Present

Scholarship: 

Comment: The Standing of Qui Tam Relators Under the False Claims Act, 57 U.Chi. L.Rev. 542 (1990)
Pleading and Proof: The Economics of Legal Burdens, 1997 BYU L. Rev. 1 (1997)
Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647 (1999)
Stare Decisis in Economic Perspective: An Economic Analysis of the Supreme Court’s Doctrine of Precedent, 78 N.C. L. Rev. 643 (2000)
In Rem Jurisdiction in Cyberspace, 75 Wash. L. Rev 97 (2000)
The Anastasoff Case and the Judicial Power to “Unpublish” Opinions, 77 Notre Dame L.Rev. 135 (2001)
Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109 (2001)
The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an ‘Actual Enumeration’, 77 Wash. L. Rev. 1 (2001)
“To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (with Orrin Hatch), 16 Harv. J.L. & Tech. 1 (2002)
Demystifying Dilution, 84 B.U. L. Rev. 859 (2004)
Abercrombie Unveiled: A Theoretical and Empirical Analysis of Trademark Distinctiveness, Working Draft, SSRN 1319409 (2008)
Sophistication, Bridging the Gap, and the Likelihood of Confusion: An Empirical and Theoretical Analysis, https://ssrn.com/abstract=1319188, (2008)
Trademarks, Consumer Psychology, and the Sophisticated Consumer, 57 Emory L.J. 575 (2008)
Judicial Activism, Restraint, & the Rule of Law, 26 Utah Bar J. 12 (2013)
Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical (with Stephen C. Mouritsen), 126 Yale L.J. Forum 21 (2016)
Judging Ordinary Meaning, 127 Yale L.J. 788 (2018)
Data-Driven Originalism, U. Pa. L. Rev. (forthcoming)

Judicial Opinions: 

With regard to Lee and the Second Amendment, the SCOTUSBlog had this to say:

During Lee’s time on the Utah Supreme Court, he has had only few cases dealing, albeit indirectly, with the rights of gun owners, and it is difficult to glean much about his position on the scope of the Second Amendment from those cases. The case most directly on point is Herland v. Izatt, a 2015 lawsuit against a gun owner who allowed an intoxicated woman to hold his loaded handgun. The woman then accidentally, but fatally, shot herself in the head. Lee joined the other members of his court in holding that the lawsuit could go forward. The court, in an opinion by Chief Justice Matthew Durrant, acknowledged that the “right to bear arms is enshrined in both the United States and Utah Constitutions. But with that right,” the court continued, “comes responsibilities,” and the state legislature has placed some restrictions on gun use and ownership – for example, by enacting a bar on supplying guns to children and people with mental illnesses. For that reason, the court concluded, gun owners have a duty “to exercise reasonable care in supplying their guns to intoxicated individuals.” However, the court cautioned, that duty “does not mean that” gun owners “will necessarily be liable for damages when those individuals injure themselves, because in most cases the intoxicated individual’s negligence will likely exceed that of the gun owner as a matter of comparative negligence.”

Lee also takes a narrow view of the deference courts should give to agency interpretations of laws and regulations. He said that the courts have the prerogative of interpreting the law. Lee is also a very strong originalist

Opposition: 

Last year when President Trump was deciding on the replacement for Justice Scalia, a group of academics did an empirical study as to which potential nominee would be the closest to Scalia in judicial philosophy. They said it was Lee. If you look at his body of scholarship above, I think you can see why. The SCOTUSBlog said Lee had a “storied legal background”.  As to opposition, the Alliance for Justice, not surprisingly, thinks he’s a bad choice based on Utah Supreme Court decision dealing with reproductive rights, criminal justice, employee rights, and the environment. I’m surprised they didn’t go after him for just being a Mormon.

Edward M. Mansfield

Personal: 

61 y.o., married to Elizabeth Hall-Mansfield, and has three children. 

Current Position: 

Associate Justice, Supreme Court of Iowa. Appointed by Gov. Terry Branstad in 2011 to replace a justice recalled by Iowa voters. Returned to the court by voters in 2012. 

Education: 

Harvard University, AB, 1978
Yale University Law School, JD, 1982 

Clerkships: 

Judge Patrick Higginbotham, 5th Circuit Court of Appeals, 1982-1983 

Previous Positions: 

Private Practice, undisclosed law firm, Phoenix, AZ, 1983-1996
Partner, Belin McCormick, Des Moines, IA, 1996-2009
Iowa Court of Appeals, 2009-2011
Adjunct Prof of Law, Drake University, 1997 – present. 

Judicial Opinions: 

To my knowledge, Mansfield has not ruled on a gun rights case. He did rule in 2015 against the Iowa State Patrol in an asset forfeiture case and remanded the case back to district court. The person involved did get his money returned. His perhaps most controversial case involved a dentist firing an assistant for being “too attractive”. The dentist fired the assistant when his wife learned the two, both married, were texting back and forth after hours and demanded she be fired. He found that the assistant had not been fired because of her gender but to save his marriage. There was no claim of a hostile work environment or sexual harassment. Mansfield said they weren’t asked to determine if the dentist treated the assistant badly in firing her but only whether it was unlawful sexual discrimination and it wasn’t under Iowa or Federal law. Mansfield dissented in a case this past Friday where the Iowas Supreme Court struck down a law that required a mandatory 72 hour waiting period before having an abortion. 

Opposition: 

There seems to be no real opposition to Mansfield by the Alliance for Justice. I’m guessing that they don’t consider him to be that likely to be picked by Pres. Trump.

Federico Moreno

Personal: 

66 y.o, married to Maria Cristina Morales, and has three children. His daughter Christina is an Asst US Attorney in the Southern District of Florida. Moreno was born in Caracas, Venezuela. Catholic. 

Current Position: 

Judge, US District Court for the Southern District of Florida. Nominated by Pres. George H.W. Bush and confirmed July 16, 1990. 

Education: 

University of Notre Dame, B.A., 1974
University of Miami School of Law, J.D., 1978 

Previous Positions: 

Private practice, Miami, Florida, 1978-1979
Assistant federal public defender, Southern District of Florida, 1979-1981
Private practice, Miami, Florida, 1982-1986
Judge, Dade County [Florida] Court, 1986-1987
Judge, Circuit Court of Florida, Eleventh Judicial Circuit, 1987-1990 

Judicial Opinions: 

Moreno has heard more that 5,000 cases in his time on the bench. One of his most notable ones involved ruling against the Coast Guard who had returned 15 refugees to Cuba under the “wet foot-dry foot” policy. The 15 were found standing on the piling of a former bridge in the Florida Keys. The USCG and the government argued that the pilings were “rooted in the water” and not part of Florida. Moreno disagreed and ordered the government to do what was necessary to allow these 15 to return to the US as refugees. As to Second Amendment cases, I really didn’t find any. 

Opposition: 

The Alliance for Justice doesn’t seem to be overly concerned about Judge Moreno. I believe his age – 66 – and his position as a District Court judge make it highly unlikely that he’ll make the final short list.

President Trump’s SCOTUS List, Part 2

This continues the thumbnails on the potential nominee to succeed Justice Anthony Kennedy on the Supreme Court of the United States. Part 1 had Judge Amy Coney Barrett, GA Justice Keith Blackwell, FL Chief Justice Charles Canady, Judge Steven Colloton, and Judge Allison Eid. As with Part 1, I’m particularly interested in how these potential nominees will impact gun rights and the Second Amendment.

Three of the judges – Hardiman, Kavanaugh, and Kethledge – are considered to be short listed. Hardiman who was widely considered the runner-up to Justice Neil Gorsuch and Kethledge were both on the first short list and virtually all mentions of a current short list include Kavanaugh.

Britt Grant

Personal:
40 y.o., married to Justin Grant who worked for the CIA, and has two sons and a daughter. Baptist.

Current Position: Associate Justice, Georgia Supreme Court. Appointed in 2017 by Gov. Nathan Deal. Currently also a Trump nominee for the 11th Circuit Court of Appeals

Education:
Wake Forest University, BA Summa Cum Laude, 2000
Stanford University Law School, JD, 2007

Clerkships:
Judge Brett M. Kavanaugh, US Court of Appeals for the DC Circuit, 2007-2008

Previous Positions:
Office of Rep. Nathan Deal, 2000-2001
Exec. Asst. to Director, Domestic Policy Council, The White House, 2001-2002
Spec. Asst to Director, USA Freedom Corps, The White House, 2002-2003
Dep. Assoc. Director, Office of Cabinet Affairs, The White House, 2003-2004
Associate – Commercial Litigation, Kirkland and Ellis LLP, Washington, DC, 2008-2012
Counsel for Legal Policy, Georgia Attorney General’s Office, 2012-2014
Solicitor General of Georgia, 2015-2016

Judicial Opinions:
You can find what she considers her most important decisions in the questionnaire that she submitted to the Senate Judiciary Committee when she was nominated for a seat on the 11th Circuit Court of Appeals. More importantly, for our purposes, as Solictor General she joined the amicus brief submitted by 24 states in Friedman v. City of Highland Park asking the US Supreme Court to take the case. This case involved Highland Park’s assault weapons ban. Unfortunately, the Supreme Court did not grant certiorari. She also successfully litigated a water rights case, Florida v. Georgia, that was heard by the Supreme Court under its original jurisdiction which is very, very rare.

Opposition:
The Alliance for Justice asserts that Grant is an “elitist” and is unfit for any Federal judgeship due to being too young and inexperienced. One of the things they objected to was her challenge to ObamaCare. I’m sure they also object to her activities on behalf of The Federalist Society where she has been active since her time in law school. 

Raymond W. Gruender

Personal:
55 y.o. (this week), married to Judy Gruender, no children. Was the victim of an attempted murder-suicide when his father gathered Gruender and his siblings for a group photo. The father than shot Gruender and his teenage sister before killing himself. Catholic.

Current Position:
Judge, 8th Circuit Court of Appeals. Appointed by Pres. George W. Bush and confirmed May 20, 2004

Education:
Washington University in St. Louis, B.A., 1984
Washington University School of Law, J.D., 1987
Washington University in St. Louis, M.B.A., 1987

Previous Positions:
Associate, Lewis, Rice and Fingersh, St. Louis, MO, 1987-1990
Assistant U.S. attorney, Eastern District of Missouri, 1990-1994
Partner, Thompson Coburn, St. Louis, MO, 1994-2000
Assistant U.S. attorney, Eastern District of Missouri,2000-2001
U.S. attorney for the Eastern District of Missouri, 2001-2004

Judicial Opinions:
Given that Judge Gruender has served on the 8th Circuit Court of Appeals for a number of years, he has participated in a number of decisions involving abortion, contraception, voting rights, criminal rights, etc. The SCOTUSBlog covers the major ones here. With regard to the Second Amendment, there were no notable cases. While he served as US Attorney, he did aggressively prosecute gun violations, presumably felons in possession, in Missouri according to former Sen. Kit Bond in Gruender’s confirmation hearing.

Opposition:
It would seem in reading the opposition comments on Gruender that the most significant opposition to him will come from the pro-abortion lobby. In an early decision (2006), he dissented in a case from South Dakota that the 8th Circuit overturned a law requiring the doctor to inform the woman the terminating the pregnancy will end the life of a unique human being. He also wrote the decision that overturned the Missouri law that precluded their DMV from issuing license plates that read “Choose Life” on First Amendment grounds.

Thomas M. Hardiman

Personal:
53 y.o. (next week), married to Lori Zappala Hardiman, and has three children. First in his family to attend college and worked as a taxi driver throughout high school and college. His brother-in-law, Stephen Zappala Jr. is the District Attorney of Allegheny County (Pittsburgh), PA. Catholic.

Current Position
:

Judge, 3rd Circuit Court of Appeals. Nominated by Pres. George W. Bush. Confirmed March 15, 2007.

Education:
University of Notre Dame, B.A., 1987
Georgetown University Law Center, J.D., Editor, Law Review, 1990

Previous Positions:
Associate, Skadden, Arps, Slate, Meagher and Flom, Washington, DC, 1990-92
Associate and Partner, Titus and McConomy, Pittsburgh, PA, 1992-1999
Partner, Reed Smith, Pittsburgh, PA, 1999-2003
Judge, U.S. District Court for the Western District of Pennsylvania, 2003-2007

Judicial Opinions:
Hardiman has the strongest record on the Second Amendment of all the potential nominees. He had a strong dissent in Drake v. Filko which challenged New Jersey’s may-issue carry laws. He said, in essence, “opining that the majority misreads Heller and McDonald, the Second Amendment applies outside the home, and New Jersey’s law conditioning issuance of a permit to carry a handgun in public on a showing of justifiable need contravenes the Second Amendment.” Hardiman also concurred in the Binderup case regarding the denial of the Second Amendment rights to those convicted of non-violent misdemeanors.

He wrote in his concurrence:

By contrast, we would
hold—consistent with Heller—that non-dangerous persons
convicted of offenses unassociated with violence may rebut
the presumed constitutionality of § 922(g)(1) on an as-applied
basis, and that when a law eviscerates the core of the Second Amendment right to keep and bear arms (as § 922(g)(1) does
by criminalizing exercise of the right entirely), it is
categorically unconstitutional.

Opposition:
The Alliance for Justice noted that Hardiman takes an expansive view of the Second Amendment, that he ruled in favor of the Little Sisters of the Poor in a case involving ObamaCare, and that he was a longtime member of the Federalist Society. While bad in their eyes, sounds good to me. That said, there are some on the right (RedState’s Erick Erickson) who think Hardiman will be Souter 2.0 even though he has been reliably conservative.

Brett M. Kavanaugh

Personal:
53 y.o., married to Ashley Estes Kavanaugh (who was Personal Secretary to Pres. George W. Bush), and has two daughters. Catholic.

Current Position:
Judge, US Circuit of Appeals for the District of Columbia. Nominated by Pres. George W. Bush. Confirmed May 26, 2006

Education:
Yale College, B.A., 1987
Yale Law School, J.D., 1990

Clerkships:
Judge Walter K. Stapleton, US Court of Appeals for the 3rd Circuit, 1990-1991
Judge Alex Kosinski, US Court of Appeals for the 9th Circuit, 1991-1992
Justice Anthony M. Kennedy, Supreme Court of the United States, 1993-1994

Previous Positions
:

Attorney, Office of the Solicitor General, U.S. Department of Justice, 1992-1993
Associate independent counsel, Whitewater investigation, 1994-1997, 1998
Partner, Kirkland and Ellis, Washington, DC, 1997-1998 and 1999-2001
Associate Counsel to the President, The White House, 2001-2003
Senior Assoc. Counsel to the President, The White House, 2003
Assistant to the President and Staff Secretary, The White House, 2003-2006

Scholarship:
Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings, 99 Yale L.J. 187 (1989-1990)
The President and the Independent Counsel, 86 Geo. L.J. 2133 (1997-1998)
Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454 (2009)
A Dialogue with Federal Judges on the Role of History in Interpretation, 80 Geo. Wash. L. Rev. 1889 (2011-2012)
Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907 (2014)
The Courts and the Administrative State, 64 Case W. Res. L. Rev. 711 (2014)
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2015)
The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2015)
Co-Author, Law of Judicial Precedent, 2016
Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions,
92 Notre Dame L. Rev. 1907 (2017)

Judicial Opinions:
It is estimated that Kavanaugh has written well over 275 opinion in his years on the Court of Appeals. He filed a dissent in Heller II which challenged gun registration and the AWB in DC. Because of the nature of the DC Circuit, Kavanaugh has written many opinions that deal with agencies and regulation. The SCOTUSBlog says he tends to take a case-by-case approach to administrative law without resorting to a full frontal challenge on Chevron deference. Nonetheless, he has worked to keep the administrative state in check especially with some of the rules promulgated by the Obama-era EPA. The SCOTUSBlog says, “To Kavanaugh, if Congress has not spoken on a matter of deep economic and political significance, which it had not in this instance, a regulation challenged under the relevant statute is presumed to be invalid.”

Opposition:
The Alliance for Justice in a bit of hyperbole says that a Kavanaugh nomination would “threaten the rights of consumers, workers, and immigrants, as well as women’s reproductive rights and protections for clean air and clean water.” Kavanaugh’s confirmation to the DC Circuit was held up for three years due to his being the principal author of the Starr Report which eventually led to Pres. Bill Clinton’s impeachment (but not conviction). I’m sure the Clinton true believers will continue to hold this against him.



Raymond M. Kethledge

Personal:
52 y.o., married to Jessica Kethledge, and has both a son and daughter. Outdoorsman who hunts and fishes in Michigan’s North Woods. Grandfather, Raymond W. Ketchledge, helped developed the acoustic anti-submarine torpedo during WWII. 

Current Position:
Judge, 6th Circuit Court of Appeals. Nominated by Pres. George W. Bush. Confirmed on June 24, 2008.

Education:
University of Michigan, B.A., 1989
University of Michigan Law School, J.D., 1993 

Clerkships:
Judge Ralph B. Guy, Jr., U.S. Court of Appeals for the Sixth Circuit, 1993-1994
Justice Anthony Kennedy, Supreme Court of the United States, 1997-1998 

Previous Positions:
Judiciary counsel, U.S. Sen. Spencer Abraham, Michigan, 1995-1997
Partner, Honigman, Miller, Schwartz & Cohn, Detroit, MI, 1998-2001
Counsel, Ford Motor Company, 2001-2002
Partner, Feeney, Kellet, Wienner & Bush, Bloomfield, MI, 2002
Co-Founder and Partner, Bush, Seyferth & Paige, Troy, MI, 2003-2008

Scholarship:
U.S. Supreme Court Review: October 1998 Term, 78 Mich. B.J. 1314 (1999)
Co-Author, Lead Yourself First: Inspiring Leadership Through Solitude (2017)
Ambiguities and Agency Cases: Reflections after (Almost) Ten Years on the Bench,
70 Vand. L. Rev. En Banc 315 (2017)

Judicial Opinions:
With regard to the Second Amendment, the major case Kethledge participated in was an en banc hearing of Tyler v. Hillsdale County Sheriffs Department which found that person who had been committed years earlier had the right to have their gun rights restored. Kethledge joined in a concurring opinion supporting the decision. Other notable decisions by Kethledge include EEOC v. Kaplan in which he wrote the unanimous decision affirming the lower court’s decision throwing out an expert’s testimony in a disparate impact case. The Wall Street Journal called it the Opinion of the Year. Another notable decision, US v. NorCal Tea Party Patriots, in which he wrote, “Among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen—Republican or Democrat, socialist or libertarian—should be targeted or even have to fear being targeted on those grounds.” He concluded by noting the IRS’s attorney were engaged in a selective manner and he expected them to do better.

Opposition:
The Alliance for Justice certainly doesn’t like Raymond Kethledge. They accuse him of wanting to “threaten the rights of consumers, workers, and immigrants, as well as women’s reproductive rights and the rights of the accused. He fights for the wealthy and powerful over the rights of all, attacking critical federal agencies that protect workers, consumers and the environment.” I presume they are angry because Kethledge jacked up the IRS over their treatment of a Tea Party group.

President Trump’s SCOTUS List, Part 1

Now that Justice Anthony Kennedy has announced his retirement from the Supreme Court, President Trump has the opportunity to solidify the conservative majority on the court. Kennedy was often seen as a swing vote and his replacement will, most likely, be more in the mold of a Neil Gorsuch than a Justice Kennedy.

Yesterday, President Trump said that he will make his pick known on July 9th. He also announced that he had shortened the list from the original 25 down to five. The five on the short list include two women. He did not announce who had made the cut to his short list. The early speculation on the short list included  Circuit Court of Appeals Judges Brett Kavanaugh, Amal Thapur, Amy Coney Barrett, Thomas Hardiman, and Raymond Kethledge. Obviously, if there are two women on the short list as indicated by the President this early speculative list is incorrect.

Thus, rather than get into the guessing game, I plan to outline what we know about the 25 in a series of five posts. Beyond their education and work history, I am most interested in what they’ve said or may have written about gun rights and the Second Amendment. The easiest way to break down the list is by alphabetical order.

Amy Coney Barrett

Personal:
46 y.o., married to Jesse Barrett, an AUSA for Northern Indiana, 7 children. Roman Catholic. 

Current Position:Judge, 7th Circuit Court of Appeals, appointed by Pres. Donald Trump, confirmed Oct. 31, 2017 

Education:
Rhodes College, BA, 1994
Univ. of Notre Dame Law School, JD summa cum laude, law review, 1997 

Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1997-1998
Justice Antonin Scalia, Supreme Court of the United States, 1998-1999 

Previous Positions:Associate, Miller, Cassidy, Larroca & Lewin, Washington, DC., 1999-2001
Adjunct Prof., George Washington University Law School, 2001-2002
John M. Olin Fellow in Law, 2001-2002
Prof. of Law, University of Notre Dame Law School, 2002-2017
Visiting Prof. of Law, University of Virgina Law School, 2007

Scholarship:
Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle)
Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
Statutory Interpretation in The Encyclopedia of American Governance (2016).
Federal Court Jurisdiction in The Encyclopedia of American Governance (2016).
Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109 (2010).
Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States.
Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey) 

Judicial Opinions: In the short time Judge Barrett has been on the 7th Circuit Court of Appeals, she has authored eight majority opinions and one dissent. None of these had to do with issues surrounding either the First or Second Amendments. 

Opposition:Judge Barrett, a practicing Roman Catholic and mother of seven, is loved by evangelicals and hated by the Left. The former hopes she’ll vote to overturn Roe v. Wade and the latter expect her to do that and thus find her objectionable. According to the left-wing Alliance for Justice, she decried Roe due to the Supreme Court “creat[ed] through judicial fiat a framework of abortion on
demand.” “

Keith R. Blackwell

Personal:
42 y.o, (July 4, 1975) married to Angela Blackwell, three daughters. 

Current Position:Associate Justice, Georgia Supreme Court, appointed by Gov. Nathan Deal, 2012. 

Education:
University of Georgia, AB Summa Cum Laude, First Honor Graduate (4.0 GPA), 1996
University of Georgia School of Law, JD Summa Cum Laude, 1999 

Clerkships:
Judge J. L. Edmondson, 11th Circuit Court of Appeals, 1999-2000 

Previous Positions:Associate, Austin and Bird, Atlanta, GA, 2000-2003
Asst DA, Cobb County, GA, 2003-2005
Associate and Partner, Parker, Hudson, Rainer & Dobbs LLP, Atlanta, GA, 2005-2010 (commercial litigation)
Deputy Special Attorney General, Georgia, for constitutional litigation.
Judge, Georgia Court of Appeals, 2010-2012, appointed by Gov. Sonny Perdue

Judicial Opinions:
Concurring Opinion, Hertz v Bennett. The case involved the denial of a carry permit for James Hertz. He had pleaded no contest to five felony charges in 1994 in the state of Florida involving aggravated assault. He received three years probation and six months house arrest which he successfully completed. Under Georgia law, Hertz was not eligible for a carry permit due to his no contest plea on a felony. Blackwell concurred on the result but said:

“no one should misunderstand the Court to suggest that constitutional guarantees extend only as far as the home.”

“To the contrary, the Court today applies intermediate scrutiny to [Official Code of Georgia] § 16-11-129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home.” 

“Second, our decision today is a limited one,” says the concurrence, which is joined by Presiding Justice P. Harris Hines and Justice David Nahmias. “[A]lthough the court did not enter a formal adjudication of guilt, it found a factual basis for the plea….In these peculiar circumstances, the Court concludes that the State of Georgia may – consistent with the constitutional guarantees of the right to keep and bear arms – deny Hertz a license to carry firearms in a public place.”

Public Comments:
In 2013, in a talk given to students at North Cobb High School, Justice Blackwell had this to say about the Second Amendment:

Blackwell only chimed in briefly to request that the students look into the history of the Second Amendment and why the founding fathers believed it was needed. 

“It was all about limiting the power of government,” he said. “The idea was that there is only so much the government could do if the people are armed. That was fundamentally the idea. 

“I know some folks like to say, well that’s when people had muskets, now we’re talking about modern militaries and people can’t resist those with ordinary firearms.” 

He explained that isn’t the case if the students look at the wars in Vietnam, Iraq and Afghanistan where “ordinary folks” without sophisticated training “gave an awful lot of trouble to our men and women in uniform, who are the best trained and best equipped fighting force in the history of the world.”

Charles T. Canady

Personal:
64 y.o., is married to Jennifer Houghton Canady, has two teenage daughters. Presbyterian. 

Current Position: Chief Justice, Florida Supreme Court, appointed 2008 by Gov. Charles Crist 

Education:
Haverford College, BA, 1976
Yale University Law School, JD, 1979 

Previous Positions:
Private Practice, Holland and Knight, Lakeland, FL, 1979-1982
Private Practice, Lane, Trohn, Lakeland, FL, 1983-1992
Florida House of Representatives, 1984-1990
US House of Representatives, 1993-2001, Chairman of House Judiciary Subcommittee on the Constitution,
General Counsel, Gov. Jeb Bush, 2001-2002
Judge, Florida 2nd Circuit Court of Appeal, 2002-2008

Judicial Opinions:
Dissenting Opinion, Bretherick v. State. Case involved who should be required to have the burden of proof in pre-trial evidentiary hearings involving Florida’s Stand Your Ground law. In a 5-2 decision, the Florida Supreme Court held that the burden of proof was on the defendant. Canady in his dissenting opinion said: 

By imposing the burden of proof on the defendant at the pretrial
evidentiary hearing, the majority substantially curtails the benefit of the immunity
from trial conferred by the Legislature under the Stand Your Ground law. There is
no reason to believe that the Legislature intended for a defendant to be denied
immunity and subjected to trial when that defendant would be entitled to acquittal
at trial on the basis of a Stand Your Ground defense. But the majority’s decision
here guarantees that certain defendants who would be entitled to acquittal at trial
will nonetheless be deprived of immunity from trial.

2A Votes:
While in the US House of Representatives, Canady voted against the Brady Bill and the Clinton Administration’s Assault Weapons Ban. 

Steven M. Colloton

Personal:
55 y.o., is married to Deborah Colloton, has two daughters. Roman Catholic.

Current Position:
Judge, 8th Circuit Court of Appeals, appointed by Pres. George W. Bush, confirmed on Sept 4, 2003

Education:
Princeton University, AB, 1985
Yale University Law School, JD, 1988

Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1988-1989
Chief Justice William Rehnquist, Supreme Court of the United States, 1989-2000
Previous Positions:
Special assistant to the assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, 1990-1991
Assistant U.S. attorney, Northern District of Iowa, 1991-1999
Associate independent counsel, Whitewater investigation, 1995-1996
Private practice, Iowa, 1999-2001
Adjunct lecturer, University of Iowa College of Law, 2000
U.S. attorney for the Southern District of Iowa, 2001-2003

Judicial Opinions:
As of January 2017, Judge Colloton had authored over 615 majority opinions and numerous concurrences and dissents in his years on the 8th Circuit Court of Appeals. He has four decisions relating directly to the Second Amendment in which he rejected the claims each time. The SCOTUSBlog summarizes them:

We found four pertinent Second Amendment cases. Colloton rejected a Second Amendment challenge to gun laws each time – personally writing an opinion in three of those cases. These are Rodgers v. Knight (rejecting claim that the seizure and retention of a citizen’s firearms by police had violated citizen’s Second Amendment rights); United States v. Bena (rejecting constitutional challenge to federal statute punishing possession of firearms while subject to a court order of protection); and United States v. Lippman (concurring in the judgment and arguing that assuming the Second Amendment confers an individual right to bear arms, the federal prohibition on possession of a firearm by a person subject to a domestic-violence restraining order is constitutional). In United States v. Humphrey Colloton joined, without writing separately, a panel opinion upholding the constitutionality of federal felon-in-possession gun felony statute.

Allison H. Eid

Personal:
53 y.o, married to Troy Eid, former US Attorney for the District of Colorado, and has a son and daughter.

Current Position:
Judge, 10th Circuit Court of Appeals, appointed by Pres. Donald Trump to replace Justice Neil Gorsuch in 2017. Confirmed on Nov. 2, 2017.
Education:Stanford University, A.B., 1987
University of Chicago Law School, J.D., 1991

Clerkships:
Judge Jerry E. Smith, U.S. Court of Appeals for the Fifth Circuit, 1991-1992
Justice Clarence Thomas, Supreme Court of the United States, 1993-1994

Previous Positions:Special Assistant and Speechwriter to Sec. of Education William Bennett, 1987-1988
Associate – commercial and appellate litigation, Arnold and Porter, Washington, DC 1994-1998
Assoc. Prof., University of Colorado School of Law, 1998-2009, 2011-2015
Solicitor General of Colorado, 2005
Associate Justice, Colorado Supreme Court, 2006-2017. Appointed by Gov. Bill Owens and retained by voters in 2008.

Scholarship:
Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (1990)
The Tort Reform Debate: The View from Colorado, 31 Seton Hall L. Rev. 740 (2000-2001)
A Spotlight on Structure, 72 U. Colo. L. Rev. 911 (2001)
Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts,
25 Seattle U. L. Rev. 89 (2001-2002)
Federalism and Formalism, 11 Wm. & Mary Bill Rts. J. 1191 (2002-2003)
Tort Reform and Federalism – The Supreme Court Talks, Bush Listens, 29 Hum. Rts. 10 (2002)
Justice White’s Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism and Judicial Restraint,
74 U. Colo. L. Rev. 1629 (2003)
The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (2004)
Teaching New Federalism, 49 St. Louis U. L.J. 875 (2004-2005)
Preemption and the Federalism Five, 37 Rutgers L.J. 1 (2005-2006)

Judicial Opinions:
Of particular note to my readers would be Eid’s opinion  in Board of Regents of the University of Colorado v. Students for Concealed Carry on Campus from 2012. The case was brought to the Colorado Supreme Court by attorney Jim Manley and the Mountain States Legal Foundation as a challenge to the University of Colorado’s assertion that Colorado’s Concealed Carry Act exempted the university. The Colorado Supreme Court found unanimously for the students. 

From her opinion:

The court of appeals held that the Students stated a claim for relief because the
CCA expressly applies to “all areas of the state.” The court further concluded that the
Students had stated a claim for relief under article II, section 13 of the Colorado
Constitution, which affords individuals the right to bear arms in self-defense. See
Students for Concealed Carry on Campus, LLC v. Regents of the U. of Colo., No.
09CA1230, — P.3d —, 2010 WL 1492308, at *7, *11 (Colo. App. April 15, 2010).
 

We granted certiorari and now affirm. We hold that the CCA’s comprehensive
statewide purpose, broad language, and narrow exclusions show that the General
Assembly intended to divest the Board of Regents of its authority to regulate concealed
handgun possession on campus. Accordingly, we agree with the court of appeals that,
by alleging the Policy violates the CCA, the Students have stated a claim for relief.

Because we affirm on statutory grounds, we do not consider the Students’ constitutional
claim.


Opposition:

The Alliance for Justice calls Eid a “narrow minded elitist” which is laughable. Eid was a young child when her father abandoned the family leaving them with nothing and her mother was suddenly forced into the workforce to support Eid and her sibling. Some of Eid’s biggest backers for the 10th Circuit judgeship were Indian tribes as well as the National Native American Bar Association who said she understood those in “Indian Country”. Neither the support from the tribes nor her childhood indicate anything near what would be expected of a “narrow minded elitist”. She was also opposed by The Leadership Conference and the League of Conservation Voters. Meh!

Re-Writing A New York Times Editorial From 2013

The New York Times ran an unsigned editorial on Nov. 21, 2013 entitled “Democracy Returns to the Senate.” In light of the events of yesterday in the Senate where the Republicans invoked the “nuclear option” and just this morning confirmed Neil Gorsuch as the newest Associate Justice of the US Supreme Court, I thought a little re-writing was in order. My changes are in bold.

It starts:

For five years This year, Senate Republicans Democrats have refused to allow confirmation votes on dozens of perfectly qualified candidates nominated by President Obama Trump for government positions. They tried to nullify entire federal agencies by denying them leaders. They abused Senate rules past the point of tolerance or responsibility. And so they were left enraged and threatening revenge on Thursday when a majority did the only logical thing and stripped away their power to block the president’s nominees.

It goes on:

In a 52-to-48 vote that substantially altered the balance of power in Washington, the Senate changed its most infuriating rule and effectively ended the filibuster on executive and judicial Supreme Court appointments. From now on, if any senator tries to filibuster a presidential nominee, that filibuster can be stopped with a simple majority, not the 60-vote requirement of the past. That means a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority.


The only exceptions are were nominations to the Supreme Court, for which a filibuster would still be allowed. But now that the Senate has begun to tear down undemocratic procedures, the precedent set on Thursday will increase the pressure to end ended those filibusters, too.


This vote was long overdue. “I have waited 18 years for this moment,” said Senator Tom Harkin Charles Grassley, Democrat Republican of Iowa.

Furthermore:

Republicans Democrats warned that the rule change could haunt the Democrats Republicans if they lost the White House and the Senate. But the Constitution gives presidents the right to nominate top officials in their administration and name judges, and it says nothing about the ability of a Senate minority to stop them. (The practice barely existed before the 1970s.) From now on, voters will have to understand that presidents are likely to get their way on nominations if their party controls the Senate.

The editorial concludes:

Democrats Republicans made the filibuster change with a simple-majority vote, which Republicans Democrats insisted was a violation of the rules. There is ample precedent for this kind of change, though it should be used judiciously. Today’s vote was an appropriate use of that power, and it was necessary to turn the Senate back into a functioning legislative body.

Not surprisingly, the New York Times has no unsigned editorial praising the Republicans for getting rid of cloture votes on Supreme Court nominees. The filibuster isn’t gone – you just have to do it the old fashioned way which involves a beach ball sized bladder and a lot of stamina.

What has surprised me the most in this whole episode was that Majority Leader Mitch McConnell (R-KY) actually had the cojones to go nuclear. For a Republican whose spine seems to be made of Jello, that was remarkable.