New in Confirmation Tales: "The Umpire Strikes Back: John Roberts's apt baseball simile."

“Judges are like umpires.” Among the hundreds of thousands of words spoken by senators, witnesses, and John Roberts himself across the four days of his confirmation hearing in September 2005, those four words uttered by Roberts in his opening statement stood out. 1/

confirmationtales.com/p/the-umpire-s… In his statement explaining why he would vote against Roberts’s confirmation, then-senator Barack Obama provided his contrary account of what judging consists of, an empathy standard embedded in a remarkably clumsy marathon metaphor. 2/ confirmationtales.com/p/the-umpire-s…

New from Confirmation Tales: "Fishing for John Roberts's Executive-Branch Records: A justice delayed could become a justice denied" 1/ confirmationtales.com/p/fishing-for-… If you’re working to defeat a Supreme Court nomination, you will try to dig up all the negative stuff you can find about the nominee, and you will seek as much time as possible for your digging. For Senate Democrats in 2005, John Roberts’s years as a lawyer in the executive branch provided an obvious opportunity. “We’re not looking to go on a fishing expedition,” declared Senator Teddy Kennedy, as he packed his tackle box. 2/ confirmationtales.com/p/fishing-for-…

Apologies for wrong first report. Unanimous ruling in favor of Trump. Liberal justices concur in judgment. supremecourt.gov/opinions/23pdf… Per curiam majority (5 justices): Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.

ACB, concurring in part, concurring in judgment: No need to address whether federal legislation is exclusive vehicle.

3 liberal justices concurring in judgment: Similar to ACB.

My new Confirmation Tales post: "John Roberts's Gay-Rights Surprise: A revelation that would have prevented his nomination doesn't disrupt it." 1/ confirmationtales.com/p/john-roberts… The same piece of information about a candidate/nominee can have dramatically different impact depending on when it surfaces. 2/ confirmationtales.com/p/john-roberts…

New from Confirmation Tales: Controversy in 2005 over whether Supreme Court nominee John Roberts had ever been a member of Federalist Society. 1/ confirmationtales.com/p/roberts-fede… In effort to make path to confirmation as smooth as possible, White House raced to correct widespread reports that John Roberts had been a member of Federalist Society. His involvement, it said, consisted of “speaking at Federalist Society forums (as have lawyers and legal scholars of various political stripes.” But never a dues-paying member. 2/ confirmationtales.com/p/roberts-fede…

Will run long thread here of today's oral argument. Here's my guide to what to listen for.

Oral argument is set to start at 10, but with opinion(s) being announced probably won't start until 10:05 or 10:10. 80 minutes are allotted, but Court has been *very* generous with time, so expect argument to go double that. My guess is that it will end some time between 12:30 and 1:00.nationalreview.com/bench-memos/a-… First up will be counsel for Trump, Jonathan Mitchell. Then two counsel on the other side, one for private plaintiffs, one for the Colorado secretary of state. Then a rebuttal round for Mitchell. So four separate turns at the podium.

Amazed to learn that three federal district judges in Illinois commit to grant requests for oral argument on any matter if a party says that it intends to have a "newer, female, or minority attorney" argue the motion. Blatant discrimination on basis of sex and race.

Three Federal Judges Grant Oral Argument Based on Sex and Race of Attorneys nationalreview.com/bench-memos/th… These same judges also say they will "strongly consider allocating [additional] time for oral argument" to newer, female, or minority attorneys.

Imagine if the Supreme Court said "30 minutes per side, except if you tell us that your attorney is a novice, a woman, or a minority, we'll strongly consider giving you more time." Oh, "and we'll also let you have "more experienced counsel" help you out.

nationalreview.com/bench-memos/th…

In my new Confirmation Tales post, I look at huge advantage that 2004 Senate victories gave George W. Bush in filling Supreme Court vacancies that arose in 2005. 1/
confirmationtales.com/p/2004-senate-… If SCOTUS vacancy had arisen in Bush's first term, he would have had much tougher time on Senate confirmation. But 55-45 margin coming out of 2004 elections meant he had plenty of room to get a strong conservative nominee confirmed. 2/ confirmationtales.com/p/2004-senate-…

From my new Confirmation Tales post: One big advantage that George W. Bush had in 2005 was that his White House was very ready for a Supreme Court vacancy. 1/ confirmationtales.com/p/preparing-fo… Eisenhower distinguished between the urgent and the important. Too many White Houses get swallowed up by the urgent and are unprepared for the important. 2/ confirmationtales.com/p/preparing-fo…

In my new Confirmation Tales post, I review my time in DOJ's Office of Legal Counsel during George W. Bush administration, including unenviable assignment to review judicial record of one SCOTUS candidate. 1/
confirmationtales.com/p/alberto-gonz… Contentious rulings on Texas parental-notification statute were prominent part of Alberto Gonzales's two-year tenure on Texas supreme court. 2/
confirmationtales.com/p/alberto-gonz…

My new Confirmation Tales post recounts how Senate Democrats blocked confirmation of *Clinton* judicial nominee. Only the second time in Senate history that cloture vote on lower-court judicial nominee failed. 1/

confirmationtales.com/p/senate-democ… As a favor to Orrin Hatch, Clinton nominated a Republican, Ted Stewart, to district-court seat in Utah. Hatch expedited his confirmation: Stewart had hearing and was reported to Senate floor two days after nomination. 2/
confirmationtales.com/p/senate-democ…

In my new Confirmation Tales post, I recount the extraordinary story of how Bill Clinton’s nomination of district judge James Ware to Ninth Circuit suddenly collapsed. 1/
confirmationtales.com/p/ninth-circui… For years, Ware had spellbound audiences with his account of tragedy that made him “hungry for justice”: the racist murder of his brother Virgil Ware in Alabama in 1963. 2/ confirmationtales.com/p/ninth-circui…

New from Confirmation Tales, "Orrin Hatch Becomes Judiciary Committee Chairman: And I realize it's time to move on." 1/ confirmationtales.com/p/aug-24-add-p… Republican takeover of Senate in 1995 increased power to stop Clinton's judicial nominations but also exposed internal divisions. 2/ confirmationtales.com/p/aug-24-add-p…

Very short summary of Fifth Circuit ruling on FDA/mifepristone:

1. Plaintiffs’ claim challenging the 2000 approval of mifepristone is likely barred by the statute of limitations. storage.courtlistener.com/recap/gov.usco… 2. Plaintiffs' challenge to FDA's 2019 approval of generic version of mifepristone also fails, as plaintiffs haven't shown injury.

My new Confirmation Tales post tells the rest of the story on Bill Clinton's abortive nomination of Peter Edelman to D.C. Circuit. 1/ confirmationtales.com/p/bill-clinton… Clinton ended up making the politically astute decision not to nominate Edelman. Edelman's complaint that there wasn't much to support depiction of him as "wacky" is strange, for reasons I explain. 2/ confirmationtales.com/p/bill-clinton…

In my new Confirmation Tales post, I address impact of Republican takeover of the Senate in 1994 elections on Clinton's judicial nominations. 1/
confirmationtales.com/p/new-republic… An elementary point that some folks have been oddly slow to recognize or acknowledge is that it matters a lot which party controls the Senate. A president who is facing a Senate controlled by the opposing party faces a much greater challenge. 2/ confirmationtales.com/p/new-republic…

I've seen judges concurring in their own majority opinions, but I don't think I had ever before seen a judge *dissent* from his own majority opinion. But Ninth Circuit judge Eric Miller did that, sort of, last Thursday. 1/ I say "sort of" because what Miller actually did was author Parts I and II of the majority opinion and dissent from Part III. Seems to me that it would have been much cleaner to make the majority opinion "per curiam." 2/

My new Confirmation Tales post discusses the surprising role that Clinton’s nominations of Rosemary Barkett and Lee Sarokin played in Senate races across the country in 1994. 1/ confirmationtales.com/p/1994-republi… When Bill Clinton became president in January 1993, he surely expected to have a Democratic Congress throughout his four-year term. Democrats enjoyed a 57-43 margin in the Senate and an 80+ margin in the House of Representatives. 2/ confirmationtales.com/p/1994-republi…

The man behind the lawsuits prompting the Supreme Court to ban race-conscious affirmative action sent letters to 150 colleges warning them not to ignore the court’s ruling via @WSJ 1/wsj.com/articles/affir… Here's the letter that Edward Blum has sent to 150 colleges offering them good advice on how to avoid being sued for racial discrimination in admissions. 2/
eppc.org/wp-content/upl…

My new Confirmation Tales post illustrates what deference on judicial nominations meant 30 years ago--and how much things have changed. 1/ confirmationtales.com/p/what-senate-… Back in 1993-1994, Senate confirmed 126 lower-court nominees. All but Barkett and Sarokin were confirmed by voice vote. Every senator waived right to roll-call votes on cloture and confirmation. 2/ confirmationtales.com/p/what-senate-…

Sixth Circuit in overturning district-court injunction of Tennessee law against transgender interventions on minors: The key premise of a preliminary injunction—likelihood of success on the merits—is missing. https://t.co/tAwqySQOVUopn.ca6.uscourts.gov/opinions.pdf/2…

https://twitter.com/masslon/status/1677627896570040320

CA6: That many members of medical community support plaintiffs is relevant. But it is not dispositive for same reason we would not defer to a consensus among economists about proper incentives for interpreting impairment-of-contracts or takings clauses of U.S. Constitution.