Some quick thoughts on the Kavanaugh nomination

A few quick hits on President Trump’s nomination of Brett Kavanaugh to the Supreme Court:

  1. Predictions are easy to make, and hard to make correctly. If I were better at this, I would have moved to Vegas already.
  2. Judge Kavanaugh will be subject to the same partisan rancor that has infected our federal judicial nomination process for nearly two decades. But he is surely qualified for the Supreme Court. His dozen years on the D.C. Circuit, as well as his educational and professional background, more than qualify him.
  3. That said, I firmly believe that the President would have been more politically expedient for the President to nominate Joan Larsen (or one of several other former state supreme court justices) for the seat. Judge Kavanaugh is a “safe” pick in part because he has the profile of a consummate Washington insider. Born and raised in Bethesda, his professional career has primarily been spent within the federal government, and he doesn’t appear to have spent much time at all outside the Beltway. (Yale and two clerkships seem to be the bulk of his non-D.C. experience). President Trump had a real opportunity to woo voters in Middle America with a non-East Coast pick, and there were several highly qualified nominees of that sort on his 25-person short list. It is disappointing that someone with greater familiarity with America beyond the Beltway wasn’t picked.
  4. In the same vein, and despite Judge Kavanaugh’s credentials, I am also disappointed that another D.C. Circuit judge will populate the Supreme Court. The Court already has three D.C. Circuit alums (Roberts, Thomas, and Ginsburg). The D.C. Circuit is an important court, to be sure, but it hardly needs four justices out of nine with that limited perspective.
  5. I thought Trump would nominate a woman, if only to create a political advantage over the identity politics-obsessed Democrats in the Senate. The Kavanaugh nomination indicates that Trump was not interested in engaging that dynamic this time around. But it’s hard to believe that he wouldn’t revisit it soon. Perhaps he is counting on another vacancy opening in the next two years; if Justice Ginsburg retires, he could nominate a woman (perhaps an even more seasoned Joan Larsen) and really watch the fur fly.
  6. From the perspective of the courts themselves (and, after all, that’s what this blog is about), the Kavanaugh nomination means more judicial cascades to come. Assuming the nomination is successful, Trump will now have the opportunity to fill Judge Kavanaugh’s D.C. Circuit seat with a (presumably) younger judge of the same qualifications and ideological bent. If he pulls such a judge from the district court ranks, he will have another vacancy for the trial courts as well. Given the record pace with which he is nominating (and the Senate is confirming) federal judges, the courts will have a continued infusion of relatively young (Gen X) judges at all levels.

Predicting the next Supreme Court nominee

Portico_-US_Supreme_Court_BuildingAnthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.

The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.

Continue reading “Predicting the next Supreme Court nominee”

Burns on Taft as Chief Justice

When I began this blog in February 2017, I hoped that its growth would coincide with a renewed interest in the organizational nature of court systems, as well as a renewed appreciation for the history of court administration and management. Whether by coincidence or design, that wish has come true in at least one respect: a batch of new scholarship on Chief Justice William Howard Taft.

In addition to Jeffrey Rosen’s fine new biography of Taft and my own piece on Taft’s role in setting the stage for federal procedural rulemaking, this year has seen the publication of Kevin Burns’s lucid assessment of Taft’s chief justiceship in The Journal of Supreme Court History. Burns sets out the historical context of Taft’s time in the center chair, and beautifully illustrates Taft’s efforts to turn the federal court system into a truly centralized, autonomous branch of government. It’s a terrific introduction for those who are new to Taft’s legacy, and a useful reference for those already familiar with his career.

Burns adds his own take as well, arguing that many of Taft’s reforms were motivated by the explicit desire to increase court access for the poor. This was not merely a manifestation of the Progressive ethos of the 1920s: Burns argues that Taft understood access, in the form of faster and less expensive litigation, to help the courts as well as the litigants. More efficient case processing would lead to more confidence in the courts and less cynicism that the courts were simply the protectors of moneyed interests.

While I do not believe that access to courts was the sole–or even the primary–motivation for Taft’s reforms, the value of access was certainly consistent with his work, and Burns is right to bring it to light. Access also fits nicely with other values that motivated Taft’s administrative efforts, such as increasing the courts’ legitimacy, instilling respect for the Constitution and the rule of law, and securing greater internal control over the management of court resources. Burns’s piece is well worth the read.

Patent filings in Eastern District of Texas fall 68% after TC Heartland decision

For many years, plaintiffs in patent infringement cases flocked to the Eastern District of Texas, spurred by welcoming judges, rocket docket scheduling, and a belief that they would find plaintiff-friendly juries. Defendants in the same cases naturally chafed at having to defend in the Eastern District, especially when there was little, if any, connection between that location and the allegedly infringing activity.  This led to hundreds of defense motions to transfer venue to another federal district court–motions that were usually denied by the local judges who wanted to keep the cases in their district. The Eastern District dominated the national patent docket, with well over a thousand infringement cases filed in the district each year.

That all changed last year, when the Supreme Court’s in TC Heartland v. Kraft Foods read the federal venue statutes to severely limit where patent infringement cases could be brought. No longer could a plaintiff assert a reasonable connection to the Eastern District of Texas just because some defendant sold an allegedly infringing product there. Unsurprisingly, the new restrictions have led to a drastic drop in filings in the Eastern District, and a growth in filings in the District of Delaware (where many business defendants are incorporated), among other venues.

It will be interesting to see where things settle in the coming years.

 

Supreme Court to release same-day audio — in a single case. Oh, joy.

The Supreme Court has announced that it will release same-day audio of April 25’s oral argument in the travel ban case. Normally audio is not released until the end of the week, but in rare cases the Court has agreed to release it the same day.

Thus continues the Court’s counterproductive policy of keeping oral argument out of public view. We should be long past the days when the general public has to rely on the Court’s feigned generosity to be able to observe and hear arguments as they happen. A single camera in the back of the courtroom, live-broadcasting the arguments without additional commentary (something CSPAN perfected two generations ago), is all that is needed.

The ongoing ban on cameras forces reporters to take notes and rush to get information to the public after the argument has concluded. This compromises accuracy, undermines efficiency, and harms transparency — the key sources of the Court’s public legitimacy. When will the Court will finally out an end to this self-inflicted wound?