#ed whelan

[marvelheroperil]

Spider-Man tries to confront Vermin but he’s forcibly held back by rats which attack him. 

- Marvel Team-Up v1 #128, 1983

[gettothedancing]

Roberts And Kavanaugh’s Death Penalty Betrayal Again Shows Why Conservatives Never Win The Long Game On Judges

How many betrayals from Republican-nominated Supreme Court Justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a wa

For the Chief Justice, that he would switch his posture from dissenting to concurring in the same case merely two years later speaks volumes about his (erroneous) fealty to stare decisis norms. As Whelan says, "today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito)." As for Kavanaugh, he similarly would be mistaken to treat the 2017 Moore remand order as persuasive — let alone correct or even "binding." Indeed, it is very difficult to see how Roberts and Kavanaugh could possibly agree to summary reversal today if they did not both view the 2017 Moore remand — from which, again, Roberts dissented (!) — as something closely approximating "binding" precedent.

It seems clear that the Chief Justice and Justice Kavanaugh are already duking it out to see who can better anoint himself the "new Anthony Kennedy." I do hope they enjoy themselves. But what is not particularly enjoyable is to watch the legal conservative movement beclown itself time and time again by nominating — and placing institutional and political capital behind — judges who more often than not deeply disappoint conservatives.

In November 1996, the late Robert Bork penned the following at First Things:

Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.

Sadly, 23 years later, our crisis is even worse. We will never, ever win the "long game" of judicial nomination wars with the Left.

What we can do, however, is work to end sycophantic judge-worship and self-destructive judicial supremacism in America.

[jbginsberg]

The Supreme Court’s refusal to intervene in lower court decisions permitting same-sex marriages means the fight on this issue is at an end.

[pejmanyousefzadeh]

In which Ilya Somin and Ed Whelan blog sensibly.

[mikaelpro]

The Atlantic: Hobby Lobby doesn't stand chance. National Review: Not so fast.

The Atlantic: Hobby Lobby doesn’t stand chance. National Review: Not so fast.

A couple of days ago, Garrett Epps of The Atlantic made the argument that “if the conservative justices uses the same logic they have in the past, Hobby Lobby’s case against the contraceptive mandate doesn’t stand a chance.”

Epps continued:

The cases challenging the Affordable Care Act’s contraceptive mandatechallenge the conservative majority on the Court: Will they respect precedent if it…

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[justinspoliticalcorner]

National Review Online blogger Ed Whelan is trying to aid the unprecedented obstruction tactics Senate Republicans are using to block President Obama's nominees.

On June 20, 2012, American Bar Association president William T. Robinson III sent a letter to Sens. Harry Reid (D-NV) and Mitch McConnell (R-KY) urging that the Senate hold confirmation votes on three judicial nominees who had strong bipartisan support but were being blocked despite the merits of their nominations.  Whelan, a blogger with significant influence in the media and Capitol Hill, responded to the letter by saying: "A Senate staffer in the know tells me that the ABA never sent a similar letter on behalf of George W. Bush's nominees."

But it would have been impossible for the ABA to send a "similar letter" on behalf of President George W. Bush's judicial nominees, because Bush's judicial nominees were not subject to the type of obstruction experienced by the Obama nominees in question.

As the ABA noted in its letter, Obama nominees William Kayatta, Jr., Robert Bacharach, and Richard Taranto "are consensus nominees who have received overwhelming approval from the Senate Judiciary Committee." In addition, Kayatta and Bacharach have "the staunch support of" the Republican senators from their home states. And Taranto, who is nominated to a court with nationwide jurisdiction, has the "endorsement of noted conservative legal scholars."

Nevertheless, Senate Republicans have announced that they are blocking all three of these nominees along with every single one of Obama's judicial nominees until after the presidential election, regardless of whether they would be good judges.

Following those confirmations, there were no Bush appellate court nominees left that did not have significant Democratic opposition or other problems preventing their confirmations. Of the 12 appellate court nominees pending on July 1, 2004, one, Claude Allen, withdrew after being caught shoplifting; six, Terrence Boyle, Richard Griffin, Susan Neilson, Henry Saad, David McKeague, and Carolyn Kuhl did not have the support of their home state Democratic senators; four, Priscilla Owen, Brett Kavanaugh, William Myers, and Janice Rogers Brown, had strong opposition from Senate Democrats; and one, Thomas Griffith was nominated in May 2004 and did not have a hearing until after the election.

Unlike Republicans' treatment of Obama nominees, Democrats allowed all non-controversial Bush nominees to have a vote in 2004. Therefore, contrary to Whelan's criticism, it would not have been possible for the ABA to have sent a similar letter on behalf of Bush's judicial nominees. 

h/t: MMFA