"Until this week, government officials had resisted answering inquiries as to who was formally in charge of [DOGE], except to say that it was not Mr. Musk."

"(Nor is Mr. Musk among its employees, the government said.) On Tuesday, a White House official said that Amy Gleason, a former health care investment executive, was serving as the acting administrator. On Friday, Joshua E. Gardner, a lawyer in the Justice Department’s civil division, denied that Mr. Musk had any role with the Department of Government Efficiency. This despite Mr. Musk’s clearly driving its initiatives, including an email blasted out last weekend that attempted to require all federal employees to respond with a list of five accomplishments from the previous week. Although the email was sent by the Office of Personnel Management, the federal government’s human resources arm, Mr. Musk said on Wednesday that he had suggested it and that the president had approved...."

"Judge Appears Skeptical of Claims That Musk Isn’t Driving DOGE/The judge prodded government lawyers for additional clarity on Elon Musk’s role in a case that directly challenges the constitutionality of his operation and his part in the rapid reshaping of government" (NYT).

The argument is that the Appointments Clause applies and Senate confirmation is required because Musk is a "principal officer" and not an "inferior officer." I'll just give you this quote from the 1988 Supreme Court case, Morrison v. Olson:

"Republican excuses for rejecting Ketanji Brown Jackson are absurd"/"The GOP won’t be honest about opposition to Judge Jackson."

Those are 2 different pieces ranking in the top 5 most-read opinion pieces in The Washington Post. 

I'm going to read them so you don't have to. Really, I want to test my hypothesis. There's frustration that Republicans aren't presenting a bigger target. The desire is to accuse them of rejecting KBJ because of her race, but there's nothing blatant, so effort must be put into teasing out the racial insinuations. Of course, Biden was blatant about race in making his choice, but that's what makes it so frustrating that Republicans aren't jumping at the bait.

Now, I'll read.

1. "Republican excuses for rejecting Ketanji Brown Jackson are absurd" by the WaPo editorial board. Overheated headline aside, this piece just says that the Senate should always confirm the President's nominee as long as basic qualifications are met. I pretty much agree with that, but it's not surprising that Republicans are paying back the Democrats for opposing President Trump's well-qualified nominees. The WaPo editors briefly acknowledge this un-absurd reality. The last paragraph asserts that Republicans will look "unattractive... in the history books," because their "almost entirely White caucus" is "rejecting the first Black woman."

2. "The GOP won’t be honest about opposition to Judge Jackson" is a piece by Jennifer Rubin. She speculates "that the GOP base is so infused with white supremacy that any vote for a Black woman would simply be unacceptable to the MAGA crowd." Doesn't the "MAGA crowd" love Clarence Thomas? Rubin's last paragraph begins: "We should not be surprised that in service of making Democrats appear to be an existential threat to America, Republicans will say anything to justify their opposition — the more venomous the better." Yeah, but we also should not be not surprised when, in service of making Republicans appear to be an existential threat to America, Democrats will say anything to justify their opposition — the more venomous the better.

Do you want your political power raw or cooked?

I'm reading "Joe Biden Philadelphia Speech Transcript Sept. 20: Accuses Trump & Republicans of Abuse of Power Over SCOTUS." Joe went to Philadelphia again to read from the teleprompter. I assume he goes to Philadelphia because it's so close to Wilmington, Delaware. Anyway... I was interested in his discussion of filling the vacancy on the Supreme Court:

This appointment isn’t about the past. It’s about the future, and the people of this nation, and the people of this nation are choosing their future right now, as they vote. To jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe that the people of this nation will stand for it. President Trump has already made it clear, this is about power, pure and simple power.

Of course, it's about power — the appointment and the election... and the last election. Joe Biden wants that power — the power of the presidency, which he would like to include the power to appoint the successor to Ruth Bader Ginsburg. But he can't get that power unless Donald Trump, for some reason, decides to abstain from the exercise of raw political power that is served up on a plate right there on his table.

Whether the voters should make it clear on this issue and so many others, the power in this nation resides with them, the American people, the voters....

It resided with them in 2016 and they exercised it. Now, it resides with the President until his term is up. That's the raw power answer, and raw power is power. The sushi is on the table. But maybe you can persuade the ravenous diner to pass up this meal. Maybe this power would be better cooked.

... and even if President Trump wants to put forward a name now, the Senate should not act until after the American people select their next president, their next Congress, their next Senate. If Donald Trump wins the election, then the Senate should move on his selection and weigh the nominee he chooses fairly. But if I win this election, President Trump’s nominee should be withdrawn....

But why?! If he loses the election, why would he take back what he's already done? If the Senate is about to be handed over to the Democrats in January, why wouldn't the GOP Senate majority feast on their last meal and confirm Trump's nominee? It's still raw power! Biden can only hope to convince them to walk away from the raw-power table and let things stew until late January.

... and as a new president I should be the one who nominates Justice Ginsburg’s successor....

I should be the one! That's what all seekers of power are always saying: I should be the one!

But also be clear about this: Was Barack Obama wrong to nominate Merrick Garland? You must clearly say that he was or I won't "let you" be clear.

Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.

— Joe Biden (@JoeBiden) September 19, 2020

ADDED: From Barack Obama's statement on the death of Ruth Bader Ginsburg:

Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.

A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.

How does that basic principle apply to you, President Obama? You went ahead and made a nomination. Why shouldn't the new President follow his predecessor's precedent. What can you say to me that isn't "based on what’s convenient or advantageous in the moment"? It's hard to play the hypocrisy card!

AND:

.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!

— Donald J. Trump (@realDonaldTrump) September 19, 2020

ALSO: Speaking of "what's convenient or advantageous in the moment," why did Senator Kamala Harris vote against Neil Gorsuch?! Here's her statement. Can anyone seriously portray that as based on anything lofty?

Judge Gorsuch's deeply conservative views put him well outside the mainstream.... Given the controversial nature of this nominee, it is deeply unfortunate Senate Republicans took unprecedented steps to ram Judge Gorsuch through the Senate instead of the President working with Democrats and Republicans to find a consensus nominee.

That's a frank claim of power by a Senator. Obama frankly exercised the power that he had to make a nomination, and the Senate majority at the time frankly exercised the power that they had. Why should we expect the current Senate majority to do anything other than to cast the votes it has and confirm? All I can think is that they might become convinced that it will help them win Senate elections if the issue is left open for the election. That could happen, especially considering that they can still complete the appointment after the election and before the Senate and the presidency can change hands.

"Brett Kavanaugh misled the Senate under oath. I cannot support his nomination."

I read the WaPo headline out loud.

Meade said, "Who's that, Captain Queeg?"

Yeah, it's Patrick Leahy. Meade was right.

To understand the Leahy = Queeg reference, see my "Observations from the Kavanaugh hearings" (Sept. 5) — point #9 on my 15-point list of observations.

I find the Democrats' fight against Kavanaugh so irksome. Have you seen Ruth Bader Ginsburg's denouncement of the "highly partisan show"?



I saw that first at Facebook, where my son John posted it. Ginsburg, in that clip, asked to compare the Kavanaugh hearings to her own, says "The way it was was right. The way it is is wrong." (I like the "is is/was was" locution.) At Facebook, I say:

The way it was in the past was how it should be, and it's become "a highly partisan show." She talks about how Justice Scalia was treated in 1986. But she never mentions Bork and Thomas! Wasn't that a highly partisan show, back in the good old days? And the reason there wasn't much pressure on the Scalia nomination was that at the same time there was the elevation of Rehnquist to Chief Justice, and there was what was arguably "a highly partisan show" about that.

I'm sure she remembers what happened to those other nominees, and maybe the questioner follows up about them. The follow-up question should also ask her whether her approach to answering questions (which everyone since her has used) was devised after examining the problems that had already been encountered. This good-old-days presentation is okay for a start, but if there's no follow-up, this should be seen as ridiculous.

Will the Supreme Court be nakedly political without the skimpy string bikini that was Anthony Kennedy?

Lawprofs Lee Epstein and Eric Posner have a NYT column with the titillating title "If the Supreme Court Is Nakedly Political, Can It Be Just?" .

In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution....

Republicans still can’t forgive President Reagan for appointing two moderates, Justices O’Connor and Kennedy, and President George H. W. Bush for appointing Justice Souter, who veered left.... Assaults on judicial independence are made easier when the public comes to view the judiciary as a political body. This risk, and not just the identity of the next justice, should be at the center of public attention.

The headline is cagey, with the use of the adjective "nakedly" and the verb "is." Consider the alternative "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Can It Be Just?"?

With that change, which I've done to separate out independent propositions, the final clause doesn't work anymore. There's no musing over the meaning of justice worth doing. I'd want to change it to "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Will the People Accept Its Exercise of Power?"

Epstein and Posner are concerned that when the Supreme Court splits 5-4, we will now, without Kennedy, always know who the 5 and the 4 are. Kennedy preserved a little mystery. He was the skimpy string bikini on the otherwise naked Supreme Court. But if this nudism analogy is any good, the Court will be less sexy when completely naked. That's what I've heard about nudist colonies. The skimpy bikini gets the mind churning away about the last little bits of unrevealed skin.

Without Kennedy, the political grouping of the Justices — appointed by a Democrat and appointed by a Republican — may feel quite dull and predictable. It won't be that these judges are just reaching policy outcomes and lying to us about law. Not all opinions will be 5-4, but when they are, it's because they're complicated enough to go either way, and intuitions about where the right answers are affect reasoning that is still creditably legal, especially to observers who want and need the Court to be a functioning part of our system of separated powers.

The naked Court will be political in a way that's as unremarkable as 9 middle-aged nudists sunning on lounge chairs by the pool.

"In the weeks ahead, we’re going to spend a lot of time going over Brett Kavanaugh’s biography — where he’s from and what he’s written. But that’s not the most important way to understand the guy."

Right. Because Kavanaugh, on his own, is completely boring. A normal person hearing the announcement, got excited for 2 seconds before the name was said, then immediately lost interest and moved on. Kavanaugh is a name we'll see for years, merged with other dull names, in Supreme Court opinions that we won't have thought about all that much, because we'll know how they're going to come out. No surprise. No, gee, I wonder how Justice K thinks about these complexities. The new Justice K won't be someone you need to get to know so intimately.

So David Brooks is taking the right tack here:

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative. 

A judge should seem boring, right? He should seem like a humble servant discovering the meaning of the law and faithfully articulating it. The great accomplishment (described in detail at the link) was to make the conservative view of law feel so completely normal that a judge like Kavanaugh would bore us, instead of seeming like a monstrous outlier, as we were made to see Robert Bork.

I vividly remember this depiction (click to enlarge):

Bork should have been confirmed, of course, and would have been confirmed if there had been a structure around him to explain and defend conservative judges. Brooks explains how in the years since Bork's defeat that structure has been built. But if that had not been needed, Justice Kennedy — about whose swingable moderation liberals wring their hands today — would never have sat on the Court. All these years, Bork would have staked out the right end of the Court, and who knows how much that would have affected all the other Justices and Presidents? Everything would have been different. Perhaps the Federalist Society would not have grown the way it did. Perhaps Bork would not have died of heart disease in 2012, but if he did, would the President who replaced him have been Barack Obama?

SCOTUSblog is live-blogging the release of new Supreme Court opinions.

Here. At this point, all we know is that there are 2 boxes, which might mean 2 new cases.

ADDED: One of the cases is Lucia v. SEC:

Indeed, this is a case that Ronald Mann, who is covering it for us, says “may be as important a decision for the administrative state as any case the justices have heard all year.” The Constitution’s appointments clause requires that all “officers” of the United States be appointed by the president, by the “courts of law,” or by the “heads of departments.” At issue in this case is whether administrative law judges (commonly known as ALJs) of the Securities and Exchange Commission – who are not appointed by the SEC, the president or the judicial branch – are “officers” of the United States; if so, the ALJs’ appointments were unconstitutional....

The justices hold that the ALJs ARE "officers of the United States" for purposes of the Appointments Clause.

AND: Another case is Pereira v. Sessions:

When a non-citizen is eligible for deportation, he may (in some narrow circumstances) avoid deportation by having his removal cancelled. One requirement for cancellation of removal is that the non-citizen have had a “continuous physical presence” in the United States for specific periods of time. That presence stops, though, when the government serves the non-citizen with a “notice to appear” for removal proceedings. The question in this case was whether the clock stops when the notice to appear does not specify when the proceedings will be held....

The court holds that a notice to appear that does not designate the specific time or place of the non-citizen's removal proceedings is not a "notice to appear" for purposes of the statute and therefore does not stop the clock on the "continuous physical presence."

SCOTUSblog is discussing why the Kennedy concurrence is "a big deal." It has to do with whether or not the decision ignores Chevron (and some of you know what that means).

Next, in South Dakota v. Wayfair, the Court does something that makes it easier for states to tax retailers that don't have a "brick and mortar" presence within their borders: "The Internet's prevalence and power have changed the dynamics of the national economy." This meant rejecting an old case called Quill.

There will be 5 minutes today between the 114th Congress and the 115th Congress — will Obama try to use the recess appointment power to put Merrick Garland on the Supreme Court?

This Fox News report tells us "there’s no active chatter" on the subject, but if there were the plan, maybe there would be enforced quiet.



It's quiet. Too quiet.

The drama is over at noon.

Or is it?

Trump will have 103 federal court vacancies to fill. Obama only had 54 when he became President in 2008.

WaPo attributes the high number to the GOP Senate's "unprecedented level of obstruction."

State gun control laws, abortion restrictions, voter laws, anti-discrimination measures and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect that has activists on the right giddy.

Trump has "vowed to choose ideologues"? Can we get a quote for that? I comb through many paragraphs and finally arrive at this:

Trump spoke frequently about his intentions to put forward a more conservative Supreme Court nominee as a way to galvanize the right.

“The replacement of our beloved Justice Scalia will be a person of similar views, principles and judicial philosophies,” Trump said in his acceptance speech at the Republican National Convention. “Very important. This will be one of the most important issues decided by this election.”

The disturbing word is "views." And I'll add, from my blog posts on the subject, that Trump has said "The judges will be pro-life" and "they’re going to be very pro-Second Amendment." So he's specified particular outcomes he's looking for.

Hillary Clinton did the same thing. She said: "[W]e need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United...." And: "And I feel strongly that the Supreme Court needs to stand on the side of the American people. Not on the side of the powerful corporations and the wealthy."

Both candidates threatened to appoint ideologues. I didn't hear much criticism of the attitude they took toward filling those vacancies. With an empty Supreme Court seat, there was particular reason to focus on judicial appointments. The people elected Trump and they kept a GOP Senate, and we will get what we deserve.

How Donald Trump used and deflected questions about same-sex marriage and the abortion precedents.

Let's study the "60 Minutes" transcript. Lesley Stahl brought up the diverse set of individuals that she labeled "the LGBTQ group" — it's "One of the groups that’s expressing fear." Trump reminded her that he "mentioned them at the Republican National Convention," and: "Everybody said, 'That was so great.' I have been, you know, I’ve been a supporter."

So Stahl switched to an issue that is important to many of people, individuals both in and, like me, outside of the group: "Do you support marriage equality?" Trump said:

It’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.

Stahl tried to jump in with "So even if you appoint a judge that," and Trump just kept going, mentioning the Supreme Court, but only as an institution that has already done something. It's already decided:

It’s done. It-- you have-- these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.

This is different — but not that different — from how he'd spoken a moment earlier about abortion and the Supreme Court. I say "not that different," because the question was framed differently for abortion:

Lesley Stahl: During the campaign, you said that you would appoint justices who were against abortion rights. Will you appoint-- are you looking to appoint a justice who wants to overturn Roe v. Wade?

That's different from the demand for his opinion on same-sex marriage, "Do you support marriage equality?" Note that Trump did not answer the question asked. He only said it didn't matter, then pointed to the Court's past decision, which he said he was "fine with." I'd infer that he supports same-sex marriage or at least opposes upsetting the expectations that fell in place when the Court decided.

With abortion, the question was about whom he'd pick for the Court and whether that person was not just someone who personally opposes abortion but someone who "wants to overturn Roe v. Wade." That's a different question, and it was also a question he didn't answer:

Donald Trump: So look, here’s what’s going to happen-- I’m going to-- I’m pro-life. The judges will be pro-life. They’ll be very—

Note that he first switched to his personal opinion — "I’m pro-life" — and then he addressed the nominees' — he pluralized it — opinion: They'll be very pro-life. Stahl then prodded him about whether they'd actually be for overturning the precedent (because one can be personally pro-life but still believe in keeping the precedent in place). Trump deflected the question again:

Well, there are a couple of things. They’ll be pro-life, they’ll be-- in terms of the whole gun situation, we know the Second Amendment and everybody’s talking about the Second Amendment and they’re trying to dice it up and change it, they’re going to be very pro-Second Amendment. But having to do with abortion if it ever were overturned, it would go back to the states. So it would go back to the states and--

You might think he finally danced back to the question, but he did not. He only started explaining what would happen if Roe v. Wade were overturned, not whether he'd appoint a justice who "wants to overturn Roe v. Wade." This time, he succeeded in knocking Stahl off the question. We got this back-and-forth:

Lesley Stahl: Yeah, but then some women won’t be able to get an abortion?

Donald Trump: No, it’ll go back to the states.

Lesley Stahl: By state—no some --

Donald Trump: Yeah.

Donald Trump: Yeah, well, they’ll perhaps have to go, they’ll have to go to another state.

Lesley Stahl: And that’s OK?

Donald Trump: Well, we’ll see what happens. It’s got a long way to go, just so you understand. That has a long, long way to go.

That's only about how people would deal with the loss of the constitutional right to have an abortion. Trump doesn't even concede that it would be "OK" to put women in the position of needing to travel farther to obtain an abortion. He gently puts the question away with the familiar colloquial phrase "we’ll see what happens." He pats the question to sleep with "long... long, long." I read that to mean what I already thought: He doesn't want Roe v. Wade to be overturned, and even as he wants pro-lifers to know he cares, he'd like pro-choicers not to worry too much.

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canning — here. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.