Ed Whelan Profile picture
Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, @EPPCdc; co-editor (1) SCALIA SPEAKS, (2) ON FAITH, (3) THE ESSENTIAL SCALIA
CoolTolerance Profile picture Twitter author Profile picture rmack2x Profile picture torndollarbill Profile picture Hecate's Crossroad #QVArmy Profile picture 12 added to My Authors
May 14 4 tweets 1 min read
Judge Candace Jackson-Akiwumi, appointed by Biden to Seventh Circuit on July 1, 2021, has gone **317 days and counting** w/o issuing an opinion.

For context: Trump's 5 appointees to that court issued first opinions 21, 23, 68, 119, and 125 days after appointment. Have in mind, too, that Jackson-Akiwumi was being touted not long ago as on short list for Breyer vacancy.
May 12 4 tweets 2 min read
This "misogyny" criticism from Princeton classmate of Alito's is hilariously inept. She faults Alito for "smuggl[ing]" in language of Mississippi law, which she thinks hasn't been enacted ("isn't even law yet").

cnn.com/2022/05/12/pol… 1/ Image Princeton classmate also claims that Alito "was referring to unborn children rather than fetuses." Alito never uses term "unborn children," and only uses of entirely correct term "unborn human being" are quotes from Mississippi law. He repeatedly uses terms "fetus" and "fetal."2/
May 8 6 tweets 3 min read
@harrylitman So, @harrylitman, when does a living member of the species Homo sapiens, in your view, become a "human being"? And where is your scientific support? Surely, since you view this as the "whole ballgame," you must have a carefully considered, well documented answer. @harrylitman Amicus brief in Dobbs of biologists in support of neither party: There is a "strong consensus" among biologists that "fertilization ... is the starting point of the self-directed development and life cycle of a human
organism and thus the life of a human." supremecourt.gov/DocketPDF/19/1…
May 2 4 tweets 1 min read
SCOTUS: Unanimous ruling in Shurtleff v. Boston in favor of free-speech rights in flag-raising program. Breyer majority. supremecourt.gov/opinions/21pdf… Judgment in Shurtleff is unanimous, but divisions on reasoning. Breyer+5 in majority. Alito, joined by Thomas and Gorsuch, concurs in judgment.
Apr 16 20 tweets 5 min read
My thread from yesterday on new OLC opinion on prospective appointments seems to have unraveled, so with benefit of additional info (e.g., 1970 Rehnquist memo), I'm going to do new thread. Here's OLC opinion released yesterday. justice.gov/olc/file/14948… 1/ As I read it, OLC is saying that president may complete *his* act of appointment of KBJ by issuing commission that does not *take effect* until Breyer retires. KBJ will not become Associate Justice until Breyer retires. 2/ Image
Apr 15 21 tweets 4 min read
“The completion of the appointment, however, does not mean that Judge Jackson assumes the office of Associate Justice.” In other words, OLC is saying that Biden can complete *his* act of appointment before Breyer retires, but that his act cannot take effect until Breyer retires.
Apr 14 11 tweets 3 min read
KBJ Appointment Follies nationalreview.com/bench-memos/kb… On Federal Judicial Center's bizarre assertion that KBJ is *now* an associate justice. Gotta wonder what Chief Justice will think when he learns that judicial-branch agency is mindlessly regurgitating what someone in DOJ has told it.
Apr 13 8 tweets 3 min read
Very strange: Federal Judicial Center webpage on KBJ states that she "received commission" to Breyer's seat "on April 8, 2022." fjc.gov/node/1394151

How could Biden issue (and deliver) commission for seat not yet vacant? Seems a nullity to me. It's a safe bet that this is FJC's error, though I can't imagine what might have triggered it.

Difficult to imagine that WH counsel's office would've allowed Biden to issue an invalid commission for KBJ. And it would have taken some time to work out text for something so weird.
Apr 4 4 tweets 1 min read
No one did more than Joe Biden to shift Senate role on SCOTUS nomination from deference to president (look only to ability/experience/character) to fight over judicial philosophy. Ridiculous that White House, abetted by MSM, now tries to avail itself of benefit of deference. 1/ Biden in November 1986 said he’d apply deference model to hypothetical Bork nomination, even if Left “tear[s] me apart” for doing so.

When Bork is nominated in 1987, Biden completely flips position, leads fight against Bork on judicial philosophy. 2/
Mar 26 5 tweets 2 min read
Just curious whether there are any serious legal figures on the Left who have praised the *substance* of KBJ's testimony and who say they are happy that Biden picked her rather than Leondra Kruger. Biden's pick of KBJ was a short-term political play. Leondra Kruger is a progressive with *much* greater legal acumen, and is 6 years younger than KBJ, but she evidently doesn't "represent African Americans" well enough. nationalreview.com/bench-memos/kb…
Mar 23 6 tweets 1 min read
Sasse on cancel culture on law-school campuses. Illiberals versus conservatives and liberals.

Do you agree that law students should be engaging in ideas across political spectrum?

KBJ: Judges need arguments on both sides. Law schools traditionally train to argue any side. Sasse: Better to debate than shout down, right?

KBJ: I'm not suggesting that we differ. Issues are working through courts.

Sasse: You're going to be a hero. Would be good to hear you support robust debate.
Mar 23 4 tweets 1 min read
Mike Lee's second round.

Asks about 2015 ruling in Cold River Mountain Watch v. DOI. Coal mining in West Virginia. Lee: You clerked for Breyer during term in which Stenberg v. Carhart invalidated Nebraska ban on partial-birth abortion. (Breyer wrote majority opinion.)

Scalia observed that PBA “is so horrible that the most clinical description of it evokes a shudder of revulsion.”
Mar 23 5 tweets 1 min read
Cornyn (last before lunch): Would you agree that public confidence in judiciary is undermined by perception that judges are doing policy?

KBJ: I agree. Cornyn: Do you agree that viability line is arbitrary?

KBJ: Can't comment.
Mar 23 5 tweets 1 min read
Sen. Graham: Wonderful to see celebration of first female African American justice. Wish attitude of Dems had been same when they instead filibustered Janice Rogers Brown for D.C. Circuit and threatened to filibuster her for SCOTUS nomination. Graham: More on KBJ's Make the Road ruling against expedited removal of immigrants. D.C. Circuit (opinion by Obama appointee Millett) slammed KBJ reasoning. Image
Mar 23 4 tweets 1 min read
Round 2 (20 minutes per) begins.

We'll see if Durbin follows his own advice of not using full 20 minutes. Durbin on odious Three-Fifths Clause. (Misses that counting slaves fully for purposes of apportionment would expand slave-state power.)

How reconcile constitutional provisions with changing technologies?
Mar 23 4 tweets 1 min read
Ossoff questioning: Tell us your brother's story. Ossoff #2: Please explain Constitution's rejection of monarchy.
Mar 22 7 tweets 1 min read
Hawley pursuing child-porn sentencing matter. Disputes three cases cited by Coons.

Raises Hawkins case. Lengthy graphic videos. Guidelines 97-121 months. Prosecutor asks for two years. You gave 3 month sentence.

You said Guidelines are outdated. Why not "heinous/egregious"? KBJ: As a judge who is a mom and who reviewed evidence, I can say crimes were heinous and egregious. Challenge is to sentence proportionately and consistent with requirements Congress has set forth. Avoid unwarranted disparities.

Even government departed from Guidelines.
Mar 22 12 tweets 2 min read
Sasse: You've said that you don't have a judicial philosophy yet, but that you have a judicial methodology. Whose jurisprudence do you most admire?

KBJ: I don't really have a justice that I've molded myself after. [Dissing Breyer?] KBJ: My methodology: Be neutral. Lay out arguments. Look at facts. Interpret legal text consistent with what drafters intended. Constitution is fixed in meaning. "Appropriate" to look at original public meaning. But there are times when meaning is not clear.
Mar 22 12 tweets 2 min read
Cruz up now.

Cites KBJ on Nikole Hannah-Jones. Do you agree that nation was founded to preserve slavery?

KBJ: I called that statement provocative. I haven't studied matter. TC: Are you aware of thorough refutation of H-J thesis/1619 Project?

KBJ: No.

TC: What does "critical race theory" mean?

KBJ: Academic theory about how race interacts with institutions. Doesn't come up in my work. I wouldn't rely on it as judge.
Mar 22 7 tweets 1 min read
Klobuchar endorses Breyer proposition that Constitution should be interpreted to meet the needs of the people of today. Whatever that means.

KBJ: Pragmatism is consistent with judicial role. (So much for constraint of original public meaning.) Klobuchar: When appropriate for Court to grant emergency relief? [Miscites TX Heartbeat Act ruling from September in which Court *denied* emergency relief.]
Mar 22 7 tweets 1 min read
Sen. Mike Lee up now. Starting with judicial philosophy.

KBJ: Law determines outcome of case, not vice versa.

ML: If not, judging is policymaking, right?

KBJ: Yes.

ML: What specific rights has Court said flow specifically from Ninth Amendment?

KBJ: None. FWIW, I disagree with premise that Ninth Amendment implies that it could ever be source of rights. nationalreview.com/bench-memos/mo…