This Day in Liberal Judicial Activism—November 17

by Ed Whelan

2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily and unanimously reverses an opinion authored by Ninth Circuit judge Sidney Thomas. Thomas, a native of Montana, was trotted out in 2010 as a supposed moderate candidate for the Supreme Court vacancy that Elena Kagan ended up filling, but he keeps showing that he’s really just Stephen Reinhardt dressed up in a cowboy hat.

2016—In an American Bar Association panel discussion, former Obama White House counsel Kathryn Ruemmler candidly acknowledges that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the vacancy arising from Justice Scalia’s death.

Ruemmler’s remark shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on President Obama’s nomination of Merrick Garland. But neither her statement nor the obvious lack of merit of the constitutional claim will deter some from continuing to peddle it.

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