Thursday round-up

At Roll Call, Bridget Bowman reports that Senate Minority Leader Chuck Schumer has said he “is preparing to block President-elect Donald Trump’s Supreme Court nominee if he or she is not in the ‘mainstream.’” Additional coverage of Schumer’s comments comes from Sophia Tesfaye at Salon, who observes that “Schumer’s play is likely meant to pressure Trump into selecting a moderate.” Commentary comes from Kent Scheidegger at Crime and Consequences, who maintains that “any genuine originalist will swiftly be declared ‘out of the mainstream’ by Senator Schumer, the New York Times, and the usual suspects.” In The New Yorker, Jeffrey Toobin observes that once Trump announces his nominee, “we’ll know within just a few hours whether there is any chance that the Senate will reject his choice,” “because the politics of Supreme Court appointments operates at the speed of the modern news media, not at the stately pace of the Justices’ deliberations.”

In The Wall Street Journal, Jess Bravin reports that President Barack Obama’s nomination of Chief Judge Merrick Garland to the Supreme Court expired at noon on Tuesday, “clearing the way for President-elect Donald Trump to fill a vacancy Senate Republicans held open for months with an appointee championed by conservatives”; he notes that “Judge Garland’s nomination did make history in at least one sense” – the “293 days it sat in the Senate without action easily broke the record 125 days the Senate took before confirming Justice Louis Brandeis in 1916.” Amy Howe covers the expiration of Garland’s nomination for this blog.


  • In The Daily Caller, Wen Fa urges the court to grant the pending cert petition in the case of Nebraska financial advisor and tea party activist Bob Bennie, who states that government regulators retaliated against him after he criticized President Barack Obama, noting that “in appealing to the Supreme Court, Bennie is stressing not just that bureaucrats can’t be allowed to retaliate against free speech, but that courts must not defer to bureaucrats who do so” and that appellate courts should not ‘”passively defer to misguided lower courts, as the Eighth Circuit did,” when “precious First Amendment rights are at stake.”
  • In Supreme Court Brief (subscription required), Tony Mauro reports on how “a frustrated entry” on a “popular trademark blog about an Asian-American rock band, The Slants, that was fighting to have its name accepted as a registered trademark” led to Lee v. Tam, the “significant First Amendment tussle” that will be argued at the court later this month.
  • At Constitution Daily, Scott Bomboy looks for other examples of “the nomination of a new Justice mid-term as a new President takes office,” noting that to “find a similar scenario where a President from a party differing from his predecessor made a Supreme Court nomination right off the bat, we had to go back to 1853 and the new administration of Franklin Pierce.”
  • At Empirical SCOTUS, Adam Feldman identifies trends in the participation of amici curiae, or “friends of the court,” in oral argument at the Supreme Court over the last 35 years, concluding that such participants now come almost entirely from the solicitor general’s office “at a time when the number of amici participating at oral argument is up and the number of total cases orally argued is down,” and that “OSG participation at oral argument appears to be another area of Supreme Court practice that is dominated by a select few elite attorneys and groups.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Devin Watkins discuss Buehler v. Austin Police Department, a cert petition stemming from a Texas activist’s attempt to file a false-arrest suit, urging the court to take the case, “not just to secure justice (or even a day in court) for Mr. Buehler, but to help all people like him who are pretextually arrested by police just because they choose to record what these law-enforcement agents do.”
  • At (subscription or registration required), Tony Mauro reports that the “Washington-centric Supreme Court bar” is warming up to George Conway III, husband of Trump counselor Kellyanne Conway, who is said to have “the inside track to become the administration’s top lawyer before the high court,” noting that “those who know Conway’s career as a top litigator at Wachtell, Lipton, Rosen & Katz insist that he is well qualified to be the next U.S. solicitor general and would be welcomed by the office’s tight-knit staff of lawyers if nominated and confirmed.”

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