Trump’s SCOTUS List of 21
More on Judge Thomas Hardiman’s Views on Free Speech
By David Keating
Judge Hardiman joined an opinion in one case, later affirmed by the U.S. Supreme Court, that a federal law providing criminal penalties for a person who “creates, sells, or possesses a depiction of animal cruelty” for “commercial gain” was unconstitutional. In the other case, he dissented in a ruling that a city airport policy barring non-commercial advertising sales violated the First Amendment…
The Third Circuit weighed whether Congress could impose criminal penalties for creating, selling, or possessing these videos for commercial gain or whether such a law violated the First Amendment.
The court was rightly skeptical of creating any new categories of unprotected speech…
The majority found the airport’s non-commercial-advertising ban was unreasonable, even in a limited public forum…
Judge Hardiman dissented. He argued the government’s ban was a “reasonable attempt to avoid controversy,” that the airport official’s halting and sometimes contradictory discovery answers were satisfactory, and that the ban was viewpoint neutral.
In the News
The Insider: Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech
By David Keating
The minor party contributors who bring this equal protection challenge suggest (at least in places) that we should consider applying strict scrutiny to this particular aspect of Colorado’s statutory scheme. They say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. The trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some conflicting cues.
No one before us disputes that the act of contributing to political campaigns implicates a “basic constitutional freedom,” one lying “at the foundation of a free society” and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities. Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.
The Insider: Judge Thomas Hardiman’s Rulings on the First Amendment Are a Mixed Bag
By David Keating
We found four cases relevant to First Amendment speech freedoms where Judge Hardiman either wrote or joined an opinion. Additionally, he voted against a petition for en banc review of Delaware Strong Families v. Denn, where CCP represented the plaintiff in one of the most important campaign finance cases of 2016…
The question presented in this lawsuit was simple. Should the state have the power to regulate groups that publish nonpartisan voter guides in essentially the same way that it regulates candidate committees, political parties, and PACs?
Judge Hardiman did not sit on the panel that heard this important case. However, he and the other Third Circuit judges received a petition asking the full en banc court to review the decision. A short brief accompanied the petition, which was denied. Judges Kent A. Jordan and Thomas I. Vanaskie voted to grant the petition, but Judge Hardiman did not…
After en banc review by the Third Circuit was denied, a certiorari petition was filed, unsuccessfully, with the U.S. Supreme Court. Justice Clarence Thomas wrote a highly unusual six-page dissent denouncing the Court’s refusal to hear the case. Such dissents are rare. Justice Samuel Alito also announced that he would have granted review.
Supreme Court
USA Today: Trump to announce Supreme Court pick on Tuesday
By Richard Wolf and David Jackson
Setting up a high-stakes legal and political battle, President Trump said Monday he will announce his Supreme Court choice in a prime-time address Tuesday night, two days earlier than initially scheduled.
Trump did not disclose the identity of his nominee, but told reporters that his pick is “unbelievably highly respected” and people “will be very impressed” by the selection.
The scheduling announcement came via Trump’s Twitter feed: :I have made my decision on who I will nominate for The United States Supreme Court. It will be announced live on Tuesday at 8:00 P.M. (W.H.).”
Trump’s nominee will likely face intense opposition from Democrats in the Senate…
In replacing the late Justice Antonin Scalia, the new president is selecting from a list of 21 people, nearly all of them federal or state judges, put together months ago by conservative interest groups. By last week, three favorites had emerged: federal appeals court judges Neil Gorsuch of Colorado, Thomas Hardiman of Pennsylvania and the original favorite, William Pryor of Alabama.
Wall Street Journal: Trump’s Supreme Choices
By Editorial Board
Judge Pryor, who is 54 years old, is a star on the Court of Appeals for the 11th Circuit and may be the closest of the three to Justice Clarence Thomas in philosophy. He has a long record of conservative jurisprudence, and he has displayed the kind of judicial modesty and respect for precedent that the Constitution intends for appellate judges.
This seems to have upset some on the right who prefer their judges to act like liberals and rule by policy preferences, not the law. They’ve criticized Judge Pryor for concurring in 2011 in Glenn v. Brumby in which a transgender male was fired when he began his transition to a woman…
Whatever one thinks of the LGBT agenda, Judge Pryor’s decision showed appropriate deference to Supreme Court precedent. The 11th Circuit’s decision faithfully followed the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins that sex discrimination can also exist in the form of hostile sex stereotyping. Conservatives should want circuit-court judges to follow Supreme Court precedent-and it’s a sign of how a judge will treat the law if he’s elevated to the Supremes.
Denver Post: Trump would do well to consider Neil Gorsuch for Supreme Court
By Editorial Board
Liberals who dreamed of a less-conservative Merrick Garland on the court will undoubtedly gasp at a suggestion that Gorsuch would be a good addition to a court that has been shorthanded for more than a year…
But in considering Gorsuch’s body of work and reputation – and yes, we like his ties to Colorado as well – we hope Trump gives him the nod.
We are not afraid of a judge who strictly interprets the Constitution based solely on the language and intent of our nation’s founders, as long as he is willing to be consistent even when those rulings conflict with his own beliefs…
A justice who does his best to interpret the Constitution or statute and apply the law of the land without prejudice could go far to restore faith in the highest court of the land. That faith has wavered under the manufactured and false rhetoric from critics that the high court has become a corrupt body stacked with liberals. And while Democrats will surely be tempted to criticize the nomination of anyone Trump appoints, they’d be wise to take the high road and look at qualifications and legal consistency rather than political leanings.
Free Speech
Reason: Is It Cool To Call the President a Bastard Again?
By J.D. Tuccille
For years, we were told that criticizing the occupant of the White House was “rank disrespect,” as Jonathan Capehart wrote in the Washington Post. Opposition to the sitting president was very likely motivated by racism, Charles M. Blow mused in The New York Times. “Openly defying and brazenly disrespecting your president, while hoping that he fails, is not called patriotism… It is called treason,” insisted one particularly moronic meme by Occupy Democrats.
But a few years of experience can have a wonderfully transformative effect on political culture. One election later, and Americans who once insisted that saying mean things about an elected official was unseemly and unforgivable have rediscovered the liberating potential of dissent…
And if fans of the latest White House occupant get all hot and bothered over their fearless leader, some lawmakers from his party seem to have decided that this is the right moment to raise the stakes on public protest. Washington state Senator Doug Ericksen (R-Whatcom County), who was Trump’s deputy campaign director for the state, wants to allow felony prosecution of protesters who disrupt economic activity.
Independent Groups
Washington Free Beacon: Read the Confidential David Brock Memo Outlining Plans to Attack Trump
By Joe Schoffstall
David Brock, the seasoned liberal operative and Clinton loyalist who founded Media Matters, huddled with more than 100 donors last weekend at the swanky Turnberry Isle Resort in Aventura, Fla. to map out how Democrats will “kick Donald Trump’s ass.”
The Washington Free Beacon attended the retreat and obtained David Brock’s private and confidential memorandum from the meeting. The memo, “Democracy Matters: Strategic Plan for Action,” outlines Brock’s four-year agenda to attack Trump and Republicans using Media Matters, American Bridge, Citizens for Responsibility and Ethics in Washington (CREW), and Shareblue.
The memo contains plans for defeating Trump through impeachment, expanding Media Matters’ mission to combat “government misinformation,” ensuring Democratic control of the Senate in the 2018 midterm elections, filing lawsuits against the Trump administration, monetizing political advocacy, using a “digital attacker” to delegitimize Trump’s presidency and damage Republicans, and partnering with Facebook to combat “fake news.”
Lobbying
Politico: Trump lobbying ban weakens Obama rules
By Isaac Arnsdorf
Trump’s ethics pledge, issued as an executive order on Saturday, includes a five-year “lobbying ban” that falls short of its name, preventing officials from lobbying the agency they worked in for five years after they leave, but allowing them to lobby other parts of the government.
The order also lets lobbyists join the administration as long as they don’t work on anything they specifically lobbied on for two years. Obama’s order from 2009, which Trump revoked, blocked people who were registered lobbyists in the preceding year from taking administration jobs…
Obama’s order also restricted all administration officials from contacting their former agencies for two years after they leave. Trump changed it back to one year for some 3,000 people – everyone except cabinet-level appointees…
Obama issued ethics waivers for some officials, and Trump’s executive order retained that ability but removed the requirement to disclose them. That opens the door to the White House departing from the policy without public scrutiny or political consequences; the White House could claim any apparent violation had been exempted.
The Media
Politico: Trump backs Bannon: ‘The media is the opposition party’
By Nolan D. McCaskill
President Donald Trump agreed Friday with a top White House aide that the mainstream media is the “opposition party” to his administration.
“Yeah, I think the media’s the opposition party in many ways,” Trump told “The Brody File,” according to an excerpt released Friday afternoon.
Steve Bannon, Trump’s chief strategist and senior counselor, told The New York Times in an interview this week that “the media should be embarrassed and humiliated and keep its mouth shut and just listen for a while.”
“I want you to quote this,” Bannon told the Times on Wednesday. “The media here is the opposition party. They don’t understand this country. They still do not understand why Donald Trump is the president of the United States.”
In a sit-down with David Brody of the Christian Broadcasting Network, Trump largely agreed. The newly inaugurated president insisted he wasn’t referring to “all media,” though, and praised Brody and other people he said he has “tremendous respect” for.
Trump Administration
The Hill: Trump rounds out team of White House lawyers
By Megan R. Wilson
Leading the team is Trump’s chief lawyer during the presidential campaign, Don McGahn, who came from law firm Jones Day, where he has represented candidates and elected officials. McGahn is a veteran political law attorney and former conservative commissioner of the Federal Election Commission.
At the campaign finance regulator, McGahn drew the ire of many on the left by helping to loosen campaign finance laws and by pushing for less government oversight of political campaigns…
Stefan Passantino, of law firm Dentons, has been named deputy assistant to the president and White House deputy counsel.
Three other lawyers joined the team, including two from Capitol Hill: Uttam Dhillon, who worked for the House Financial Services Committee; Scott Gast, who joins from the independent ethics watchdog in the House; and James Schultz who comes from Cozen O’Connor.
“The appointment of a team of this caliber reflects the importance of ethics compliance to the president and this administration,” McGahn said in a statement.
Washington Post: Democrats will have to wage guerrilla warfare on Trump corruption. Here’s what that might look like.
By Greg Sargent
One person who is in a good position to shed light on this is Dem Rep. John Sarbanes, who has been appointed by Dem leader Nancy Pelosi to chair the newly-created “Democracy Reform Task Force,”…
Sarbanes said that Democrats would seek to hold hearings of their own, either on Capitol Hill or in districts where appropriate, that are designed to spotlight situations where Trump conflicts (perhaps ones unearthed by dogged investigative reporting) might be developing. These would bring in ethics watchdogs who are doing their own examinations of legal problems developing around Trump, as well as panels of expert witnesses, to develop the case against Trump and, potentially, other administration members who may have similar problems…
Sarbanes noted that Democrats would try to seize on situations where the ordinary workings of Congress gave rise to hearings, to demand transparency from Trump on whether his holdings might create possible conflicts related to the business before Congress. For instance, if a congressional hearing had convened around particular legislation, Sarbanes said, Dems might call on their Republican colleagues – via, say, amendments – to prod Trump for information on holdings that might be impacted by it.
The States
Washington Times: Lawmakers move quickly on ethics, campaign finance bills
By Associated Press
Efforts to reform New Mexico’s political ethics and campaign finance regulations are off to a fast start in the New Mexico Legislature amid recent high-profile corruption scandals and public pressure for change.
The open government advocacy group Common Cause New Mexico released polling results Monday that show broad support for the creation of an independent ethics commission in the state, a cooling off period before public officials can become lobbyists and greater campaign finance disclosures for independent political groups.
In the first weeks of a 60-day legislative session, committees have advanced bills addressing those issues. New Mexico is one of eight states without an independent ethics body.
Common Cause Campaign Manager Heather Ferguson says campaign finance excesses and mysteries of the 2016 election season highlight the need for greater disclosure.
New Mexico In Depth: Campaign finance reform bill increases lawmaker contribution limits
By Sandra Fish
Campaign donors would be able to double their contributions to state lawmakers under a campaign finance reform measure approved by the Senate Rules Committee Friday.
Senate Bill 96 also would increase disclosure for super PACs and nonprofits that get involved in campaigning.
The Senate Rules Committee approved the measure, sponsored by Senate Majority Leader Peter Wirth, in an 8-1 vote…
Current limits are $2,500 each for the primary and general election for non-statewide candidates such as legislators, and $5,500 per cycle for statewide candidates or political action committees. Before the 2012 election cycle, candidates could take unlimited donations from companies and individuals.
SB96 would change that to $5,000 per cycle for all candidates and PACs, with the amount adjusted for inflation after each election cycle…
The bill is aimed at addressing unlimited donations and spending by independent groups such as super PACs and some nonprofits after the 2010 U.S. Supreme Court decision known as Citizens United.
New York Times: South Dakota Lawmakers Snuffing Out Ethics Reform Referendum
By Editorial Board
Brutally rejecting the people’s will, South Dakota’s Republican-controlled Legislature is rushing to repeal a vital ethics reform referendum approved by voters in November.
The 52 percent of voters who approved the anticorruption referendum were “hoodwinked by scam artists,” Gov. Dennis Daugaard, a Republican, brazenly insisted, as he promised to sign the repeal. The referendum called for the creation of an independent ethics commission to investigate abuses by statehouse politicians and lobbyists, a public financing option to reduce election spending and a $100 annual limit on lobbyists’ gifts to elected officials.
The Republican-dominated committee that approved the repeal bill did so under South Dakota’s “state of emergency” provision that would prevent voters from reversing the repeal with another referendum…
Republican legislators – more eager for political revenge than mindful of the voice of the people – are now debating a bill that would double the number of signatures required to place referendums on the state ballot.
Wall Street Journal: Federal Prosecutors to Interview NYC Mayor in Fundraising Probe
By Erica Orden
New York City Mayor Bill de Blasio is set to be interviewed by federal prosecutors in early February in connection with a corruption investigation into the mayor’s fundraising operations, according to people familiar with the matter.
Mr. de Blasio, a Democrat, isn’t expected to be questioned under oath, these people said, and it isn’t clear if the interview by prosecutors from the office of Manhattan U.S. Attorney Preet Bharara will focus on a particular aspect of the wide-ranging investigation…
On Wednesday, Mr. de Blasio disclosed at an unrelated news conference that he had been interviewed by the Manhattan district attorney’s office in its own investigation into the fundraising activities of his administration and its allies…
In the federal investigation, prosecutors have been looking at whether donors to the mayor’s 2013 campaign-or to the Campaign for One New York, his now-defunct political nonprofit-received special favors.
The Manhattan district attorney’s office has also been examining whether Mr. de Blasio or his allies violated state campaign-finance law.