Judicial Nominations
Jeff Flake Inspires Fresh New Hatred by Blocking Judicial Confirmations
Senate Republicans are torn between their hatred of voting on bills, their fear of poking the bear, and their love of confirming judges.
Neomi Rao for the D.C. Circuit
President Trump announces a superlative pick for to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit
Can a Constitutional Amendment Forestall the Threat of Court-Packing?
Jim Lindgren proposes a constitutional amendment banning court-packing. I'm all for it. But it can only pass if liberal Democrats get some reciprocal concession to support it.
Politico Symposium on Kavanaugh's Confirmation
I have a contribution in it, along with a variety of prominent legal scholars and commentators.
Judge Kavanaugh, Judicial Temperament, and the "Circus"
Kavanaugh was correct: it was a circus. But he was the one who made it a circus - and for that (apart from anything that he may or may not have done in 1982) he should not be confirmed.
Why Supreme Court Confirmation Hearings Should be Treated as Job Interviews, not Criminal Trials
One of the points at issue in the debate over the sexual assault accusations against Brett Kavanaugh is whether the standards of proof used by the Senate should be those appropriate to a criminal trial or those of a job interview. The latter is the superior approach.
Politico Symposium on the Ford-Kavanaugh Sexual Assault Accusation Hearing
The symposium includes contributions by various legal commentators, including Bruce Ackerman, Mari Matsuda, Deborah Rhode, and myself.
The Worst Defenses for Brett Kavanaugh and Christine Ford
If you want to show your support for the accused or the accuser, stay away from these.
Partisan Bias, Motivated Reasoning, and the Debate Over the Kavanaugh Nomination
The debate over the sexual assault accusations against Brett Kavanaugh is a striking example of partisan bias at work.
Politico Symposium on How to Handle the Kavanaugh Sexual Assault Accusation
It includes contributions by a variety of legal scholars and commentators, including myself.
Why "Settled Law" Isn't Really Settled -- and Why That's Often a Good Thing
The Supreme Court needs to have the power to overturn "settled" constitutional decisions in order to prevent the permanent entrenchment of terrible precedents.
Thoughts on the Kavanaugh Racial Profiling Emails Revealed by Sen. Cory Booker
Conservative support for racial profiling is deeply problematic. But the e-mail leaked by Sen. Cory Booker actually shows Brett Kavanaugh advocating "race-neutral" post-9/11 security policies.
Kavanaugh's Testimony on Executive Power [Updated with Material from the Afternoon Session]
No great surprises so far. But some notable points nonetheless.
What About Those E-mails?
Background on Senator Leahy's line of questioning about allegedly stolen e-mails and documents from the Senate Judiciary Committee.
Kavanaugh Is Well Within the "Mainstream" -- but "Mainstream" Isn't Always Good
Claims that Kavanaugh is outside the legal "mainstream" are misguided, and mostly just reflect growing partisan polarization over legal issues. The real danger is not that we will have non-mainstream Supreme Court justices, but that some mainstream ideas are badly wrong.
Washington Post Symposium on Brett Kavanaugh's Jurisprudence
The Post has a symposium in which a a variety of legal commentators (myself included) discuss what they consider to be Judge Kavanaugh's most important opinions.
"Court Balancing" is Just Court-Packing by Another Name
A new proposal to give Democrats additional Supreme Court appointments by temporarily increasing the size of the Supreme Court would cause much the same problems as conventional court-packing would.
Kavanaugh on the Nixon Tapes Case
In 1999, Judge Kavanaugh suggested that the Supreme Court case that forced Nixon to turn over the Watergate tapes may have been wrongly decided. But it's not entirely clear what he now thinks about the issue.
Kavanaugh and Executive Power - the Good, the Bad, and the Overblown
The debate over Judge Kavanaugh's views on executive power actually encompasses four separate issues. On some of them his views bode well for the future, on others not so much.
Judge Kavanaugh on the Confirmation Process
Those who have been through the process rarely have nice things to say about it.
Some Preliminary Thoughts on the Kavanaugh Nomination [Updated with additional material]
Judge Kavanaugh is a highly qualified jurist. I applaud several aspects of his record, while having reservations about others.
And the Next Supreme Court Justice Nominee Is Brett Kavanaugh
Following the resignation of Justice Anthony Kennedy, President Trump makes his second appointment to the Supreme Court of the United States.
The Mythical History of Nomination Filibusters
A history lesson for Chris Matthews and others who claim there was a tradition of requiring 60 votes for confirmation.
Closing in on the Next Supreme Court Justice (Updated)
President Trump will soon name his second pick to the Supreme Court
