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We live-blogged the first day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. The transcript is available at this link.
The post Live blog of confirmation hearing (Day One) (Update: Completed) appeared first on SCOTUSblog.
In today's edition we enjoy another day of Sunshine (Week), track OpenGov news on the east coast, welcome new leadership to the Open Government Partnership, check in on President Trump's conflicts, and more…One more day of sunshine
- A dozen FOIA experts shared their best advice. Jonathan Peters observed Sunshine Week by asking "a dozen FOIA experts for one piece of advice that would help journalists and others use the FOIA effectively." Top tips? Get help from experts, do your research, make human contact, and don't hesitate to appeal. (Columbia Journalism Review)
- Advocates raised Trump transparency concerns. Panelists shared concerns about transparency in the Trump administration and highlighted the importance of whistleblowers at a "discussion organized by the nonprofit Project on Government Oversight [which focused] on how the press and activists can pressure agencies to improve their responsiveness to Freedom of Information Act requests…" (Government Executive)
- Everyday "FOIA heroes" make a strong case for the public's right to know. MuckRock ended Sunshine Week by focusing on five "ordinary citizens whose public records requests have made an impact." (MuckRock)
The Massachusetts State Senate Office of Education and Civic Engagement shared some Sunshine Week Updates.
- Rochester, NY brought its FOI process into the 21st century. "The city for years has promised automation of the historically paper-heavy process. Now, working with General Code of Gates, the city is ready to launch a new system that will allow people to file requests online, track the process as it gets reviewed, filled, denied or redacted, and get up-to-date time estimates on delivery."(Democrat & Chronicle via NFOIC)
- Rhode Island Governor Gina M. Raimondo argued for good government reforms. In an op-ed the Governor announced a good government legislative reform package that will focus on campaign finance and election reform, bring more transparency to legislative grants, and more. (Providence Journal)
- New Jersey moves to require tax return transparency from Presidential candidates. "New Jersey's state legislature passed legislation on Thursday in response to Trump's withheld tax returns. The bill, which is now up to Gov. Chris Christie to approve, would require all candidates for president and vice president to release tax returns [at least 5 years worth of returns]…in order to appear on the state ballot."(Mic.com)
- Open Government Partnership steering committee welcomes new leadership. Last week, member governments of the Open Government Partnership chose Canada, Italy, South Africa, and South Korea to lead the OGP steering committee. The selected governments will serve a 3 year term starting on October 1. (Open Government Partnership)
- New research finds governments restrict opposition by limiting Internet access. "The effect varies from country to country, and is much less pronounced in democratic nations. But the study, published today in Science, suggests that besides censorship, another way national governments prevent opposing groups from organizing online is by denying them Internet access in the first place, says Nils Weidmann, a professor of political science at the University of Konstanz in Germany." (MIT Technology Review)
- How one Mexican city is using technology to improve trash collection. The city of Xalapa is targeting its notoriously poor system for trash collection by partnering "with the civic tech group Codeando Xalapa to put some cheap GPS devices onto garbage trucks and allow residents to see their exact location on a map just like in Uber or Lyft. Users can customize notifications to be alerted when the garbage truck is approaching the nearest collection point. And they can submit complaints directly to an oversight officer if there are any problems." (David Sasaki)
- President Trump is being sued for potentially hiding personal debts. "A Washington lawyer is suing President Donald Trump for allegedly obscuring the extent of his personal debts on his federal financial disclosure form." (POLITICO)
- How foreign governments can leverage Trump's business interests. "Trump has taken few steps to distance himself from his organization, and foreign governments could use the President’s business interests as bargaining chips to influence his policymaking." The Atlantic digs deeper in their video series Unpresidented.
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This week the U.S. Senate Judiciary Committee will begin confirmation hearings to consider the nomination of Judge Neil M. Gorsuch to serve as an associate justice of the U.S. Supreme Court.
Since President Donald Trump announced his nomination to fill the vacancy created by the late Justice Antonin Scalia, a full court press has been unleashed to examine Judge Gorsuch’s character and credentials, as well as the judicial record he has amassed over the past ten years.
What’s most remarkable about the deep dive is the fact that Judge Gorsuch is indisputably qualified to serve on the nation’s highest court in the land. Last week the American Bar Association delivered a unanimous “Well Qualified” rating for his nomination, its highest possible assessment. The ABA’s exhaustive review evaluates a nominee’s integrity, professional competence and judicial demeanor. Senators Pat Leahy (D-Vt.) and Chuck Schumer (D-N.Y.) previously have referred to the ABA’s stamp of approval as the “gold standard.”
Judge Gorsuch is the gold standard. He is a man of sterling character who possesses an impressive command of the law. Since his unanimous approval to serve on the U.S. Court of Appeals for the 10th Circuit a decade ago, Judge Gorsuch has served with honor and distinction. His opinions reflect integrity and intellect mixed with ironclad impartiality and fidelity to the Constitution. His judicial philosophy is driven by the fundamental principles that the law applies equally to all, and that judges decide cases, not policy.
It’s a judicial philosophy that recognizes the genius of our 240-year-old Constitution: a government of limited and divided powers, carefully balanced, with an eye to the preservation of individual liberty. The federal judiciary serves as the final arbiter to uphold individual rights and referee the separation of powers, providing ordinary citizens access to an unbiased court of law to right wrongs and redress their grievances with impartiality and fairness.
With a decade of experience on the 10th Circuit, Judge Gorsuch’s record reflects an unwavering commitment to the rule of law. His rulings demonstrate a core commitment to deliver justice without bias or political favoritism. Judge Gorsuch does not consider the federal bench a political platform. Proper stewardship of the federal judiciary avoids judicial activism, embraces neutrality and works to ensure that the President, Congress and yes, judges, act within their constitutional boundaries in service to the American people.
He understands that judicial restraint preserves liberty by permitting the people to govern themselves, through their representatives. He also recognizes that the judiciary is a check on the executive branch, including the modern regulatory scheme.
Next week’s hearings mark the 14th Supreme Court confirmation hearing I’ve participated in. It will be my first time leading the hearing as chairman of the Senate Judiciary Committee. And, as I’ve conducted nomination hearings for Attorneys General Jeff Sessions and Loretta Lynch, it will be fair and thorough.
I expect political posturing and grandstanding to be on full display. I also anticipate exhaustive attempts to require Judge Gorsuch to telegraph his personal views and forecast how he’ll rule on the hot button issues that may come before him.
But let’s not forget the standard set by Justice Ruth Bader Ginsburg in her confirmation hearings: It would be inappropriate for a Supreme Court nominee to offer hints or make commitments on matters that may come before the court.
By the end of the hearing, the American people will have seen and heard detailed responses about Judge Gorsuch’s judicial philosophy and his approach to the law and the Constitution.
And, by the time this week’s proceedings are completed, I expect that Judge Gorsuch will be well on his way to becoming our next Supreme Court justice.
This morning the court hears oral argument in two cases. First on the agenda is Murr v. Wisconsin, in which the court will consider what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. Miriam Seifter had this blog’s preview. At Cornell University Law School’s Legal Information Institute, Eugene Temchenko and Nick Velonis have another preview. At PrawfsBlawg, Roderick Hills argues that the property-owners’ position may “actually undermine the security of private property, because by “elevating one aspect of state property law — lot lines — over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult.” In Forbes, J.V. DeLong argues that “the real questions underlying this case” “are matters of due process, equal protection, and arbitrary government action.”
The second case on the argument docket is Howell v. Howell, a dispute between a divorced couple over the wife’s share of the husband’s military retirement pay. Amy Howe previewed the case for this blog. Kara Goad and Elizabeth Sullivan preview the case for Cornell. The George Washington Law Review’s On the Docket previews all the cases on the March argument calendar.
The Senate hearing on the nomination of Judge Neil Gorsuch to the Supreme Court begins today. At NPR, Nina Totenberg reports on what to expect, noting that so far, “Gorsuch critics have been having difficulty getting traction — having been trumped, as it were, by other controversies,” but that “there has been plenty going on behind the scenes.” In The New York Times, Jennifer Steinhauer looks at Sen. Chuck Grassley and Sen. Dianne Feinstein, the top Republican and Democrat on the Judiciary Committee, who will preside over the hearing. In The Washington Post, Ed O’Keefe and Robert Barnes survey various issues that are likely to be the focus of questioning by Democratic senators, noting that many “conservative activists and GOP lawmakers say that the laundry list of Democratic concerns is evidence that they don’t quite know how to pin down Gorsuch.” In The New York Times, Carl Hulse reports that “Senate Democrats appear to have two options: Get out of the way or get run over.” At The Economist’s Espresso blog, Steven Mazie previews the hearing.
In The New York Times, Adam Liptak surveys four confirmation battles that shaped the court, and Clyde Haberman looks back at the memorable hearing on Judge Robert Bork in 1987. Also in The New York Times, Liptak offers “advice, reflections and criticism from former nominees who successfully navigated the process.” In The National Law Journal (subscription or registration required), Marcia Coyle and Tony Mauro examine several other memorable confirmation hearings. In The New York Times, Adam Liptak reports that “Gorsuch is likely to be confirmed, though perhaps only after a momentous revision to Senate practices to eliminate the filibuster against Supreme Court nominees,” but that “justices and others worry about the cost to the Supreme Court’s authority when its members are portrayed in starkly political terms.”
In The Washington Post, Robert Barnes reviews several Gorsuch rulings that “liberal and conservative legal activists” “say best illustrate how Gorsuch sees the law.” In The Wall Street Journal, Jess Bravin reports that Gorsuch’s “provocative persona” in college evolved over time into a “conciliatory posture toward those with views to his left,” and that it “isn’t clear what prompted Judge Gorsuch’s transformation from ideological provocateur to evangelist of civility.” In The New York Times, Eric Lipton and Jeremy Peters report on the role of Leonard Leo, the executive vice president of the Federalist Society, and other conservative activists in “reshaping the judiciary” by recommending like-minded judges, including Gorsuch, for appointments to the federal bench, noting that although “Gorsuch, 49, is their first test case,” the “conservative activists say more is at stake than just the Supreme Court.” At The Huffington Post, Cristian Farias looks at Gorsuch’s role in defining the level of educational benefit school districts must provide children with disabilities, an issue before the case this term in Endrew F. v. Douglas County School District. At CNN, Daniel Burke examines Gorsuch’s religious background, concluding that “in the black-and-white world of partisan politics, Gorsuch’s writings and religious life show several strands of gray.”
In The National Law Journal (subscription or registration required), Tony Mauro highlights what to watch for during the hearing. At Education Week’s School Law Blog, Mark Walsh offers five things for educators to keep in mind about Gorsuch. At NYU Law, Barry Friedman explains the Supreme Court confirmation “dance-a-thon.” Slate’s Amicus podcast features a discussion with Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, about how the Democrats should handle the confirmation proceedings.
At Reason’s Hit & Run blog, Damon Root urges senators to question Gorsuch in three areas: congressional power, executive power and unenumerated rights. In The Nation, Ari Berman asserts that senators should question Gorsuch about his view on voting rights, because “Gorsuch, if confirmed, could be the deciding vote on whether to weaken the remaining sections of the VRA and whether to uphold discriminatory voter-ID laws and redistricting plans from states like North Carolina and Texas.” In an op-ed for The Hill, Trevor Potter argues that Gorsuch “should be thoroughly scrutinized until he answers specific questions about his view on money in politics.” The editorial board of the Los Angeles Times asserts that “it’s important that senators engage him in a dialogue about his view of the court’s role that goes beyond hot-button issues such as abortion, guns and gay rights.” At the Brennan Center for Justice, Andrew Cohen suggests that Gorsuch could learn from his grandfather John Gorsuch, a Denver lawyer who “brought a level of empathy and compassion to the law,” but worries that there “is no reason today to believe his grandson will follow that lead.”
At The Huffington Post, Christopher Kang argues that Gorsuch’s tenure at the Justice Department, ties to a conservative Colorado billionaire, and recent high-profile dissents raise “questions about Judge Gorsuch’s independence” and increase the public’s need to “know how the Federalist Society and Heritage Foundation communicated with him—and with Trump’s campaign, transition team, and administration—in vetting him and resolving ‘potential strikes’ against him.” At Jost on Justice, Ken Jost remarks on the Federalist Society’s role in picking Gorsuch. In an op-ed in Bloomberg, Michael Bloomberg warns against the dangers of “extreme partisanship” and cautions that rather “than overplay their hand, Democratic senators should use the confirmation hearing to ask questions that reveal how Gorsuch thinks about legal questions, rather than what he thinks about particular issues.”
- Bill O’Reilly’s The Contributing Factor podcast features a discussion of “the inner workings of the nation’s highest court with Fox News anchor and Supreme Court correspondent Shannon Bream.”
- At PrawfsBlawg, Richard Re looks at the Supreme Court’s practice of abandoning “longstanding or widespread readings of its own precedents by blaming a dissenting opinion.”
- At Lock Law Blog, Ryan Lockman discusses County of Los Angeles v. Mendez, a Fourth Amendment case stemming from a police search that resulted in a shooting, observing that this may be “a rare case when conservative legal principles functionally expand police shooting liability.”
- At PrawfsBlawg, David Fontana unpacks the result of a recent poll on the Supreme Court conducted by C-SPAN and PBS.
Remember, we rely exclusively on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.
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New on LLRX – President’s Council of Advisors on Science and Technology Casts Doubt on Criminal Forensics
Via LLRX.com – The President’s Council of Advisors on Science and Technology (PCAST) stated in their report – “Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means.” Ken Strutin’s article features information about the PCAST Report, its reception by advocates and critics, and related articles, publications and developments concerning the science of innocence.
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The Economist Daily Chart by the Data Team – Donald Trump’s ‘America First’ budget would make deep cuts to domestic programmes – Graphic detail
“Stephen Bannon, President Donald Trump’s chief strategist, famously promised the “deconstruction of the administrative state”. On March 16th, the Trump administration took its first step toward achieving Mr Bannon’s vision by proposing a budget that makes steep cuts to domestic programmes. Not all departments would suffer. Mr Trump’s budget proposal, which covers $1.1trn of discretionary spending for the 2018 fiscal year, requests an additional $52bn for the Department of Defence and $2.8bn for the Department of Homeland Security. The majority of this additional spending would go towards what the administration calls “urgent warfighting readiness needs” including fighter jets, drones, missiles and weapons systems. At least $2.6bn would be spent on the construction of a wall on the southern border, a project which could eventually cost as much as $22bn. An additional $1.5bn would go towards the expanded detention, transport and removal of illegal immigrants…”
ABA TECHSHOW 2017: 60 tips in 60 minutes – Adam Camras, LegalTalkNetwork; Ivan Hemmans, O’Melveny & Myers LLP; Jack Newton, Clio; Deborah Savadra, Legal Office Guru; Rochelle Washington, DC Bar.
“A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period. The lawyers are the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court. None of these lawyers is a household name. But many are familiar to the nine justices. That’s because about half worked for justices past or present, and some socialize with them. They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012. The Reuters examination of the Supreme Court’s docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it. The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed. Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found…”
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Prpić, John, Unpacking Blockchains (June 15, 2017). Prpić, J. (2017). Unpacking Blockchains. Collective Intelligence 2017. NYU, Tandon School of Engineering. June 15-16, 2017.. Available at SSRN: https://ssrn.com/abstract=2932485
“The Bitcoin digital currency appeared in 2009. Since this time, researchers and practitioners have looked “under the hood” of the open source Bitcoin currency, and discovered that Bitcoin’s “Blockchain” software architecture is useful for non-monetary purposes too. By coalescing the research and practice on Blockchains, this work begins to unpack Blockchains as a general phenomenon, therein, arguing that all Blockchain phenomena can be conceived as being comprised of transaction platforms and digital ledgers, and illustrating where public key encryption plays a differential role in facilitating these features of Blockchains.”
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News release -“AARP Executive Vice President Nancy LeaMond released the following statement today in response to the pending vote on the House bill that would create an “Age Tax,” weaken Medicare’s solvency, put at risk seniors’ ability to live independently as they age, and give sweetheart deals to big drug and insurance companies. In a letter sent to all 435 members of the House of Representatives, AARP maintained its strong opposition to this harmful bill and urged each Representative to vote ‘No’ on the proposed legislation. AARP believes this legislation will have a significant negative impact on the health of millions of older Americans ages 50 to 64, as well as other vulnerable groups, including poor seniors and disabled children and adults.
- “AARP recognizes the magnitude of the upcoming vote on this harmful legislation that creates an Age Tax, cuts the life of Medicare, and gives sweetheart deals to big drug and insurance companies while doing nothing to lower the cost of health care or prescriptions. We intend on letting all 38 million of our members know exactly how their Representative voted. Our members care deeply about their health care and have told us repeatedly that they want to know where their elected officials stand. We will communicate the results of the House vote to our members and the public through The Bulletin, a print publication that goes to all of our members, as well as through emails, social media, and other communications channels.
- “This bill, if passed in its current form, will disproportionately hurt older adults between the ages of 50 and 64 by dramatically increasing insurance premiums to unaffordable rates. Allowing insurance companies to charge older adults an Age Tax 5 times or more than others for health insurance, and reducing tax credits to help pay for it, is quite simply unfair.
- “AARP is also concerned that this bill weakens the fiscal sustainability of Medicare, reduces cost-sharing help for out-of-pocket costs for 50- to 64-year-olds purchasing coverage on the individual insurance market, increases the number of uninsured Americans, and puts at risk the health and well-being of millions of poor seniors and disabled adults and children by capping funding for much needed services that allow individuals to live independently in their homes and communities.
- “We are also profoundly disappointed that the big drug and insurance companies were given sweetheart deals while nothing was done to lower the cost of health care or prescriptions. Congress must do more to bring down the unsustainably high health care and prescription drug costs for consumers and taxpayers.”
Joe Davis, Project Consultant, Prudential Financial, Inc. – “OK, so Watson won “Jeopardy!” back in 2011. That’s ancient history in technology years. ILTA provides a wealth of programming about the current state of affairs in Artificial Intelligence that will benefit law firms and corporate legal departments. In the future, I’m sure we’ll have a bot to curate all this content for us. In the meantime, below is a sampling of some of ILTA’s best AI-related content from ILTACON, Insight, webinars, white papers and Peer To Peer.”
Columbia Journalism Review – “The 2016 Presidential election shook the foundations of American politics. Media reports immediately looked for external disruption to explain the unanticipated victory—with theories ranging from Russian hacking to “fake news.” We have a less exotic, but perhaps more disconcerting explanation: Our own study of over 1.25 million stories published online between April 1, 2015 and Election Day shows that a right-wing media network anchored around Breitbart developed as a distinct and insulated media system, using social media as a backbone to transmit a hyper-partisan perspective to the world. This pro-Trump media sphere appears to have not only successfully set the agenda for the conservative media sphere, but also strongly influenced the broader media agenda, in particular coverage of Hillary Clinton. While concerns about political and media polarization online are longstanding, our study suggests that polarization was asymmetric. Pro-Clinton audiences were highly attentive to traditional media outlets, which continued to be the most prominent outlets across the public sphere, alongside more left-oriented online sites. But pro-Trump audiences paid the majority of their attention to polarized outlets that have developed recently, many of them only since the 2008 election season. Attacks on the integrity and professionalism of opposing media were also a central theme of right-wing media. Rather than “fake news” in the sense of wholly fabricated falsities, many of the most-shared stories can more accurately be understood as disinformation: the purposeful construction of true or partly true bits of information into a message that is, at its core, misleading. Over the course of the election, this turned the right-wing media system into an internally coherent, relatively insulated knowledge community, reinforcing the shared worldview of readers and shielding them from journalism that challenged it. The prevalence of such material has created an environment in which the President can tell supporters about events in Sweden that never happened, or a presidential advisor can reference a non-existent “Bowling Green massacre.”..”
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