Some other flashpoints: 1. Precedent: He's dismissive of Morrison and Humphrey's. 2. He's flirting with upending all indepedent agencies and the modern administrative state. 3. His historical assumptions are spotty if he claims to be an originalist.http://shugerblog.com/2018/07/12/the-wolves-in-kavanaughs-footnotes …
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I don’t think these issues — while important — will catch on with the senate, let alone the public.
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You raise excellent, sophisticated, nuanced questions,
@jedshug - which the Democratic members of@senjudiciary won’t bother raising, so they can grandstand on TV about Trump. -
@Davidlat: superficially understandable since APDA 1992.
Seriously, the precedent question is always a Roe question.
And any risk of increasing presidential power (over agencies and ACA non-enforcement) is a chance to grandstand against Trump. And it’s a health care question. -
You could try to get these Qs into the hands of
@senjudiciary staffers. They don’t lend themselves to televised hearings, but they could be posed to the#SCOTUSnominee for his written responses. -
Yep, tbh, that’s my plan.
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David, you whiffed on this one. The important flash point is Klayman v. Obama. If Judge Kavanaugh fails to be confirmed, it will be because Senator
@RandPaul withholds his consent. Kavanaugh's concurring opinion in Klayman denying en banc rehearing burns Senator Paul to the bone. -
I’m aware of
@RandPaul’s concerns w/Kavanaugh - I wrote about them in an earlier post - but Paul won’t be the one to stop confirmation. If he sees the votes are there to confirm w/o him, then he might vote no, but he won’t vote no if it all turns on him. -
A failed nomination early enough (and after Kennedy's resignation goes into effect at the end of the month) doesn't risk the seat—the Republicans can confirm Barrett or Kethledge before the next Congress—and it seems odd that Senator
@RandPaul would sacrifice his signature issue. -
https://www.bloomberg.com/news/articles/2018-07-14/trump-says-he-understands-why-women-fear-u-s-abortion-reversal … FYI, David. Rand Paul is far from a "yes" on Judge Kavanaugh. He is citing Klayman v. Obama, as I said he would.
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Interesting; thanks! I suspect some of this is posturing for publicity & that
@RandPaul will vote yes in the end - but it’s possible he could vote no or abstain if it’s clear there are enough votes to confirm Kavanaugh to#SCOTUS without him.#SCOTUSnominee -
It's possible he votes in favor, but not preponderantly likely. An opinion in a denial of rehearing en banc is rare. A judge usually writes one to suggest to the Supreme Court how to rule. In Judge Kavanaugh's—joined by no other D.C. Circuit judge—he strayed far beyond precedent.
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Judge Kavanaugh's conclusion that collection of (so-called) metadata under Section 215 is no Fourth Amendment search is well grounded in then-existing high Court precedent. But Judge Kavanaugh went much further, arguing that even if the collection was a search, it was reasonable.
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After purporting to apply high Court precedent in concluding that no Fourth Amendment search occurred, Judge Kavanaugh then extended "special needs" precedent in concluding that the warrantless metadata collection was reasonable. In support, Judge Kavanaugh cited no record below.
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@DavidLat consistently provides excellent, informed, tell-it-like-it-is analysis of all things judiciary. So refreshing to see straitforward takes without partisan baggage.Thanks. Twitter will use this to make your timeline better. UndoUndo
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