"Supreme Court Lets Trump Lift Deportation Protections for Venezuelans/A federal judge had blocked the administration’s plan to remove the temporary protected status of more than 300,000 immigrants."

The NYT reports.

The court has been inundated with applications arising from President Trump’s blitz of executive orders, many of them seeking to pause or limit trial court rulings blocking the administration’s aggressive agenda, notably in immigration.... The Temporary Protected Status program, enacted by Congress and signed into law by President George H.W. Bush, allows migrants from nations that have experienced national disasters, armed conflicts or other extraordinary instabilities to live and work legally in the United States. Mr. Trump has tried to end protections under the program as he seeks to make good on his campaign promise to deport millions of immigrants. His efforts aimed to terminate the protections for nearly 350,000 people in early April, and for hundreds of thousands more later this year.

23 things Vox predicts will happen in 2023.

Do you have predictions? Surely you don't have 23, that is, 23 worth saying. You can always predict obvious things.

Here are Vox's, perhaps padded by obviousness — e.g. "The Supreme Court will rule that affirmative action is unconstitutional (70 percent)."

This is a reference to "The Inferno" — to the 9th Circle of Hell — right?

I'm just focusing on this SCOTUSblog tweet from 4 days ago:

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

— SCOTUSblog (@SCOTUSblog) May 3, 2022

I thought "the gravest, most unforgivable sin" was an absurd overstatement. I can think of far more horrible sins. Murder springs to mind first. Mass murder. Torture murder. And so on.

But I realized, no, in Dante's "Inferno," the lowest circle of hell is not for murder. It's for treachery:

Trapped in the ice, each according to his guilt, are punished sinners guilty of treachery against those with whom they had special relationships. The lake of ice is divided into four concentric rings (or "rounds") of traitors corresponding, in order of seriousness, to betrayal of family ties, betrayal of community ties, betrayal of guests, and betrayal of lords. This is in contrast to the popular image of Hell as fiery; as Ciardi writes, "The treacheries of these souls were denials of love (which is God) and of all human warmth. Only the remorseless dead center of the ice will serve to express their natures. As they denied God's love, so are they furthest removed from the light and warmth of His Sun. As they denied all human ties, so are they bound only by the unyielding ice." This final, deepest level of hell is reserved for traitors, betrayers and oathbreakers (its most famous inmate is Judas Iscariot).

What the Court's opinion draft said about the reliance factor as it analyzed whether to adhere to precedent.

As someone who has taught Planned Parenthood v. Casey many times, I turned first to the part of the draft that analyzed reliance on the right to abortion. 

The Casey Court, looking at precedent, said reliance is one of 4 factors taken into account when deciding whether to overrule a case. But then it conceptualized reliance in a new way. I've spent many hours forcing students to see this problem in Casey and to look for a way to deal with it, so it's striking to read the Court's proposed opinion forthrightly pointing at the problem (boldface added):

Traditional reliance interests arise “when advance planning of great precision is most obviously a necessity.” Casey, 505 U. S., at 856 (plurality opinion); see also Payne, 501 U.S, at 828. In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” 505 U.S. at 856. For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here. 

Unclear? It's about as clear as any prediction we can make about what the Supreme Court will do.

I'm reading "Ketanji Brown Jackson’s Harvard ties raise recusal questions in Supreme Court’s affirmative action case" (WaPo):

In the case before the Supreme Court, it is unclear whether Jackson’s participation would be a deciding factor in the outcome. The slim majority that in 2016 upheld the limited use of race in school admissions has been replaced by a more conservative bloc of six, including three nominees of President Donald Trump. The Trump administration supported those challenging Harvard’s policies as unconstitutional. The Biden administration urged the court not to accept the case.

Welcome back, your dreams were your ticket out/Welcome back, to that same old place that you laughed about...

From "Liberals Are Still Angry, but Merrick Garland Has Reached Acceptance" (in the NYT):

After the election, the judge took a little time off, friends said... And on Jan. 30, two colleagues on the appeals court, Judges David S. Tatel and Laurence H. Silberman, hosted a more formal affair at the Metropolitan Club here.

“It was kind of, ‘Welcome back, Garland,’” Judge Tatel said. “‘Would we have been happy to see you on another court? Yes, but we’re glad you’re back.’”

Judge Tatel added, “He’s fully engaged and he’s back to being an extremely good chief judge.”...

“He did everything right — he never said a cross word, he never made a joke about it, he never politicized it,” said Tali Farhadian Weinstein, a former Garland clerk.....

In case you need to sing the post title: here.

As for the NYT article title... it's those insidious 5 stages of grief again. I don't for one minute believe that Merrick Garland had to process the experience like that, and remaining where you've been all along is not like dying. Getting an opportunity and then having it not pan out is a big experience in life, but I think anyone sensible enough to get a Supreme Court nomination isn't going to get so high on hope that he needs 5 stages to work through dashed hope. I'm sure Garland knew all along it was a game that he'd probably lose. He had the honor and distinction of being chosen, and I'm sure he accepted the nomination with the knowledge that he was being cast in a tragic role in some political theater.

“The character he showed through the whole process proves how qualified he was for the job,” [Tali Farhadian Weinstein] added, “and it adds to the tragedy that he didn’t get it.”

"You should never have resigned. You didn’t do anything wrong. You only did what the president ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?"

What Neil Gorsuch said to his mother, Anne Gorsuch Burford, when he was 15 years old, as reported in the NYT piece, "In Fall of Gorsuch’s Mother, a Painful Lesson in Politicking."

More than three decades later, Judge Gorsuch, a federal appeals court judge in Denver, has been nominated to the Supreme Court by President Trump and faces a political culture even more caustic than the one that destroyed his mother’s public career. Like her, he is a committed conservative and can expect strong opposition, but where she was bold and brash, he has advanced to the pinnacle of the judiciary with understatement and polish.

"Upworthy showed everyone that you get more pageviews with two-sentence headlines. What happened next will blow your mind."

From a Facebook discussion of the Slate article titled "Republicans Stole the Supreme Court/Democrats, don’t let them get away with it."

The NYT is going big with the Merrick Garland nomination.

But I find it hard to believe the American electorate has much interest in the subject. I follow the Supreme Court and law-related news continually, yet I feel no motivation to read these articles. To me, it seems that the NYT is serving its usual readers the fare they expect, but I doubt if anyone is getting more stirred up about the appointment process now that they know the name. The political situation is stagnant. Has anyone been nudged into a higher state of excitation? I'm guessing at how jaded other people feel, even though I'm in an unusual situation, being a lawprof blogger and all. The Republicans in the Senate seem so marginalized in relation to presidential politics right now. This attempt to prod us into being irritated with them is itself irritating. That the nominee would be highly qualified and impressive was always already understood. What is the incentive to learn more or think more about the particular individual? Surely not that the NYT frontpages a slew of headlines.

"'No hearing for Obama’s Supreme Court nominee, McConnell says.'... Caving on this would wreck the party. McConnell seems to realize that."

Says Glenn Reynolds.

I thought the party already got wrecked, what with Donald Trump and Ted Cruz, but I suppose there's a decent interest in keeping the wreckage in something of a neat pile that might look like a functioning device from a respectful distance.

I could imagine that at some point the Trump-n-Ted damage could get so bad that staging some political theater around Merrick Garland might seem like a way to regain some dignity within the wreckage, especially if it becomes obvious that Hillary will win the election and the prospect of getting someone more conservative than Garland disappears. 

Merrick Garland "took a 50 percent pay cut; traded in his elegant partner’s office for a windowless closet that smelled of stale cigarette smoke."

"This was a time when crime here in Washington had reached epidemic proportions and he wanted to help. And he quickly made a name for himself going after corrupt politicians and violent criminals. His sterling record as a prosecutor led him to the Justice Department, where he oversaw some of the most significant prosecutions in the 1990s, including overseeing every aspect of the federal response to the Oklahoma City bombing. In the aftermath of that act of terror, when 168 people, many of them small children, were murdered, Merrick had one evening to say goodbye to his own young daughters before he boarded a plane to Oklahoma City and he would remain there for weeks. He worked side by side with first responders, rescue workers, local and federal law enforcement. He led the investigation and supervised the prosecution that brought Timothy McVeigh to justice. But perhaps most important is the way he did it. Throughout the process, Merrick took pains to do everything by the book. When people offered to turn over evidence voluntarily, he refused, taking the harder root of obtaining the proper subpoenas instead, because Merrick would take no chances that someone who murdered innocent Americans might go free on a technicality."

From Obama's introduction of his Supreme Court nominee Merrick Garland.

ADDED: I quoted that because I liked it. Real facts, beautifully stated. But, of course, the political stuff had to follow. I know he's compelled to say things like this, but I am compelled to say I don't believe it:

At a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they are disposable, this is precisely the time when we should play it straight...

... though I don't consider that to be playing it straight...

and treat the process of appointing a Supreme Court justice with the seriousness and care it deserves because our Supreme Court really is unique. It’s supposed to be above politics. It has to be. 

... and it can't possibly be...

And it should stay that way.

... which assumes a fact that can't possibly be in evidence. 

To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise, that would be unprecedented. To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people might be treated, as one Republican leader stated, as a political pinata. That can’t be right.

Yeah, well, it can be right, and you'd be saying it's right if you were in the Senate and a GOP President made a nomination this close to the election. But I know you have to say that. These are the lines in political theater, and you have delivered them with persuasive elegance — complete with the subtle articulation of the tilde on "piñata."

Now, Republicans, take your turn on the stage with refined gestures that don't look like swinging at a piñata.

ADDED: Time's transcript has a homophone typo: "taking the harder root."

"He could easily name Merrick Garland, who is a fine man," said Orrin Hatch a few days ago.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him."

And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!

ADDED: "Who is Merrick Garland?"

Garland’s relatively advanced age [63] may help explain why Hatch floated the DC Circuit chief judge as his ideal Obama nominee. Another factor that almost certainly played a role is Garland’s reputation for moderation. In 2003, for example, Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States” — an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush....

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”...

The Garland nomination.... appears to be an attempt to box in Senate Republicans who’ve refused to confirm anyone Obama nominates.

But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game. Other names are saved for other games.

"Today, I will announce the person whom I believe is eminently qualified to sit on the Supreme Court."

Emails Barack Obama. 

The announcement comes at 11 E.T.

Exciting! Exciting to see who it is. I think we know. The linked NYT report says, "Among the finalists are the federal appellate judges Sri Srinivasan, Merrick B. Garland and Paul Watford."

I assume it's the first of those 3, based on the way the media has been reporting on this story. I could be wrong.

I assume the choice has a lot to do with playing a theme in the music of the 2016 election. Whether this person gets to take the Scalia seat on the Court is another matter, an important matter, but subordinate, I think, to the way useful political drama can be stirred up for electoral purposes. That's what I will be following and writing about. I'm sure the nominee will be highly qualified and immensely respectable. It wouldn't work as a political move if he were not.

So: it's exciting to see who the nominee is, but more exciting to see how the nomination/confirmation process interacts with out volatile presidential campaign.

ADDED: As noted by rhhardin in the comments, Obama misused that pesky word that you should never use unless you're absolutely sure it's correct: whom.

UPDATE: CNN is saying (half an hour before the announcement) that it's going to be Garland.

Is Obama about to pick an Iowan for the Supreme Court to please the Iowa Senator chairing the Judiciary Committee?

The NYT reports: "The White House is vetting Jane L. Kelly...."

Her nomination could intensify pressure on Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee, to break with his party and hold hearings on Mr. Obama’s Supreme Court candidate. In a Senate floor speech in 2013, Mr. Grassley effusively praised Judge Kelly, who has spent her career in Iowa and is well regarded in legal circles there. He quoted from a letter from retired Judge David R. Hansen, a Republican appointee, who called her a “forthright woman of high integrity and honest character” and a person of “exceptionally keen intellect” before voting to confirm her for the appeals court post.

And this is striking:

Five years into her tenure [in the federal public defender’s office for the Northern District of Iowa], she was nearly killed in a brutal attack while jogging on a popular trail in a Cedar Rapids park. Discovered by passers-by lying facedown in a pool of blood, she spent several months recovering and endured multiple surgeries. The crime was never solved, although there was speculation it might have been connected to her work. Still, Judge Kelly later told The Des Moines Register that she had no doubt about returning to her job as a criminal defense lawyer, which she did immediately after recovering from the assault.

"Who wants to be Obama’s judicial kamikaze pilot?"

Nice column title — for Marc A. Thiessen in The Washington Post. Of course, it assumes Obama's nominee will not make it, and I'm not convinced of that. Nevertheless, it's a risk to be the person who gets thrown out there to the beasts in the political arena. But you may get through it, and if you do, you're there for life, just like Clarence Thomas, who survived a more vicious thrashing than anything that could plausibly happen to this new character. 

The reason I think the nominee might make it is that Donald Trump is the likely GOP candidate for President, and he can't be trusted to nominate a truly conservative person. Efforts at getting a reliably conservative Justice often fail anyway, and I don't expect Trump even to want a hard-core Thomas/Scalia-type conservative. Trump isn't opposed to abortion rights and gay rights and the rest of the things that torment social conservatives. That's my reading. I could be wrong. But my point is: The Senators, thinking about how they want to play out their roles in the Theater of Confirmation, should be able to predict — if and when Trump becomes the Republican nominee — that the next President isn't going to give them an old-time conservative. It doesn't matter who wins the election — Hillary or Trump — there's no one to hold out for.

The GOP Senators should be looking at: 1. The political benefit to be squeezed out of the drama of wielding the confirmation power, and 2. Who Obama actually nominates. Obama may pick someone moderate, because he predicts the GOP Senators will figure out that it's in their interest to take that person and to look good exercising their role in a dignified, elevated fashion. But Obama might predict that behavior and go for someone liberal enough to trigger a bad-looking response from the GOP Senators. What does Obama want more — another person of his choosing on the Court or to muck up the GOP in the fall elections?

That's how I'm thinking. Thiessan, by contrast, thinks that anyone who accepts the nomination is committing career suicide by serving as "Obama’s pawn in an unwinnable fight." Thiessan is obviously in the game himself. I think I'm looking at the chessboard from a more distanced position and seeing quite a few moves and many different outcomes — including the one where a failed nominee gains stature and goes on to write and comment on the legal/political scene in a vigorous, rewarding post-nomination career.

I never thought the floating of the Sandoval name was anything other than political propaganda.

So I'm not surprised that Nevada Gov. Brian Sandoval has let the White House know he doesn't want to be considered for the Supreme Court nomination.

He doesn't want to be exploited in the other party's political maneuverings.

Yesterday, my son John had a Facebook post linking to a New Republic item: "Why is Obama considering a Republican for the Supreme Court?" I didn't go to the item. I just answered the question: "Because he's not."

President Obama posts at SCOTUSblog... to say that appointing a Supreme Court Justice is a "responsibility" he takes "seriously."

He's going to "devote considerable time, deep reflection, careful deliberation" to the selection process, you won't be surprised to hear. And he's going to pick someone who is "eminently qualified" and has "an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity."  And, he says, he wants someone who "recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law" and who will "approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand." You may doubt that, but it's absolutely standard boilerplate. It's what the nominees themselves will say at the confirmation hearings. They'll say it so consistently that you'll wonder why we need confirmations hearings. We'll just hear the person say that over and over again.

But there's a bit more, and this tinges into the controversial. In some cases, "a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment." So he's looking for someone who doesn't see law as "abstract legal theory abstract legal theory" or "some footnote in a dusty casebook" or only "an intellectual exercise." There should be "life experience" and an understanding that law "affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times" which is "an essential element for arriving at just decisions and fair outcomes."

This strikes me as a watered down version of what he said back in May 2009, when he had his first Supreme Court vacancy to fill:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

Today's statement doesn't include the key word "empathy." And that casebook with the footnote is now a "dusty casebook." "Essential ingredient" has become "essential element," which — pardon me for free associating — makes me speculate he's not picking a woman this time. 

"Senate Leader Mitch McConnell Flatly Rejects Hearing on Any Court Nominee."

That's the headline in the NYT.

“This is his moment,” Mr. McConnell said on the Senate floor, addressing the president. “He has every right to nominate someone. Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right. Even if he never expects that nominee to actually be confirmed but rather to wield as an electoral cudgel, that is his right.”

How influential — in this new firmness — was the emergence of the Biden clip from 1992?

Republican maneuvering came as Democrats scrambled to contain any damage from Joseph R. Biden Jr.’s floor speech as a senator in June 1992 urging President George Bush not to make a nomination to the Supreme Court until after that year’s presidential election.... Aides to Mr. Biden also insisted on Tuesday that he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred.

ADDED: Let me answer my own question: very influential. I'm hearing talk of "the Biden rule." That's so terribly handy.

"Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself."

"Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue."

Said Joe Biden in June of the election year 1992, when he was chair of the Senate Judiciary Committee, and the President was the Republican George H.S. Bush.

I didn't need that quote to know that it's a partisan power struggle — wrapped up in legal mystification — and if the parties were reversed the Democratic Senators would be saying what the GOP Senators are saying and the Republican President would be saying what the Democratic President is saying.

But I think it can help some people focus on reality... even as I believe that current political interest is a far stronger force than the search for the truth.

ADDED: The NYT front page highlights the Biden remarks as a "potential disaster":



Notice how the Times assumes the reader is on Obama's side on this, as it fails to add "for Obama" or "for Democrats" to "potential disaster." The link goes to a forum titled "Battle for the Supreme Court: Our Insiders’ Guide," and with comments by various NYT reporters. Michael D. Shear says:

For President Obama, it is a potential disaster. He and his Democratic allies had been carefully executing a pressure campaign aimed at shaming Republicans for vowing to block consideration of a nominee to replace Justice Scalia, but the emergence of a 24-year-old video on Monday throws into doubt the effectiveness of that strategy.

Carl Hulse says "Democrats may have taken one on the chin over the old video of Mr. Biden," but once Obama comes out with an actual nominee, the subject will change. That seems like a concession that Democrats have lost on the abstract point that the Senate has a duty not to obstruct.

For Obama, "appointing Supreme Court Justices is a process of trying to lock outcomes in place, and we shouldn't believe [him] if in the future [he tries] to say otherwise."

A position I took on September 29, 2005.

My son John remembered that and wrote about it just now on Facebook:

I basically agreed with my mom, Ann Althouse, back when she wrote this (eerily prescient) blog post after Chief Justice Roberts was confirmed in 2005. And I still basically agree with it — which doesn't change my view that the president and the Senate should act promptly to replace Justice Scalia....