The Free Speech Record of Judges on Trump’s Short List
An Update on the Records of Judges Thomas Hardiman and Raymond Kethledge
By IFS Staff
Last year, we analyzed Judge Kethledge (here) and Judge Hardiman (here and also here). It is often difficult to definitively compare the records of any two judges because they rule on different cases, and that is true here.
Kethledge’s opinions, or those he joined, were often outstanding. As noted by David Keating in the analysis, “Lavin v. Husted is one of the best I’ve read in preparing these reports. Kethledge’s careful scrutiny of a contribution ban is outstanding. In re US harshly rebuked IRS tactics in a case filed after the IRS Tea Party targeting scandal. In contrast to Lavin, Bailey v. Callaghan is disappointing because it fails to apply careful scrutiny to a law that targeted one union for disparate treatment due to its policy views.” Also, in Bible Believers v. Wayne County, Mich., “Kethledge joins [a] thorough opinion about the First Amendment’s application to the ‘heckler’s veto.'”
Kethledge’s opinions cover a substantial range of free speech cases and he normally applies rigorous scrutiny, except as noted above in the union case…
Since our reports last year, both Hardiman and Kethledge each joined one opinion on a substantial First Amendment question. We review these opinions below.
In the News
Washington Examiner: At 60, the NAACP’s victory for privacy rights must not be forgotten
By Luke Wachob
In the mid-20th century, the NAACP was leading the fight for equality. The state of Alabama, then controlled by politicians dedicated to upholding Jim Crow laws, wanted to shut it down. When the group put up a fight, Alabama demanded the NAACP turn over a list of its members in the state.
The practical effect of exposing the names and home addresses of NAACP members was no mystery, then or now. The state government and other opponents of civil rights would use the information to harass and intimidate those members. The list would fuel a divide-and-conquer campaign to starve the group of financial support. The NAACP’s roar would be reduced to a whisper.
Thankfully, the NAACP refused to provide the list and in a decision that turned 60 years old last weekend, the Supreme Court ruled unanimously in favor of its right to privacy. The decision offers a lesson that rings true to this day: Americans often need to associate privately if they are to fully exercise their First Amendment rights.
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” Justice John Harlan wrote in the majority opinion. “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action,” Harlan added.
Today, this historic ruling is under threat – not from racists, but from overreaching government officials seeking to force “transparency” on private citizens.
Supreme Court
Wall Street Journal: Trump Meets With Four Potential Supreme Court Nominees
By Vivian Salama and Peter Nicholas
President Donald Trump said Monday that he met with four potential Supreme Court nominees earlier in the day and planned to interview “two or three more” ahead of the planned announcement of his decision next week…
Mr. Trump said he intended to reach a decision on the Supreme Court nominee this week and announce the decision Monday…
The names most frequently cited as front-runners include Thomas Hardiman of the Third U.S. Circuit Court of Appeals in Philadelphia; Raymond Kethledge, of the Cincinnati-based Sixth Circuit; Brett Kavanaugh of the District of Columbia Circuit; Amy Coney Barrett of the Chicago-based Seventh Circuit; and another Sixth Circuit judge, Amul Thapar.
The candidates Mr. Trump interviewed on Monday, two people familiar with the matter said, were Judges Barrett, Kavanaugh, Kethledge and Thapar…
As the White House girds for a tough confirmation battle, officials are setting up a war room to help select and push through a nominee, tapping officials from across the government.
Raj Shah, now the lead deputy White House press secretary will leave that role to oversee communications and strategy on the high-court pick and help coordinate messages with allies on Capitol Hill, the White House said Monday. Justin Clark, who now directs the Office of Public Liaison, will oversee outreach to outside constituency and interest groups as the White House tries to build coalitions supporting the nominee.
White House counsel Don McGahn will lead the search for a nominee to replace Justice Kennedy and will head the “overall confirmation process,” Ms. Sanders said.
Washington Post: Here’s who Trump should pick for the Supreme Court
By Hugh Hewitt
The best choice for the opening is Judge Raymond Kethledge of the U.S. Circuit Court of Appeals for the 6th Circuit. The 51-year-old judge from central casting – just like Neil M. Gorsuch – is not as well-known as front-runner U.S. Court of Appeals for the District of Columbia Circuit Judge Brett M. Kavanaugh. But the longtime Michigan resident brings political upside to the process that Kavanaugh and several other contenders cannot.
The president sounds like a man who wants a second term, which means keeping his most high-profile and decisive campaign promises. During the 2016 campaign, Donald Trump pledged his Supreme Court nominees would be thoroughgoing “originalists” in the mold of Justice Antonin Scalia. So the first question is: Has the nominee ruled steadily in a fashion consistent with the original intent of the Constitution and its amendments and faithful to the statutes passed by the executive and legislative branches?
Kethledge’s record shows that in his case, the answer is a resounding “yes.” …
White House staffers will have read every word of Kethledge’s many writings, and they will conclude: Gorsuch 2.0, especially with regards to a willingness to challenge so-called Chevron deference toward the vast administrative state, a doctrine dangerous in its corrosive effect on self-government.
Wall Street Journal: The Case for Brett Kavanaugh
By J.D. Vance
What should President Trump look for in a Supreme Court nominee? Exactly what he did with his selection of Justice Neil Gorsuch and his slate of lower-court nominees. He should ask one question: Who is best at being a judge, as demonstrated by a consistent record of applying textualist and originalist reasoning to significant legal questions? Given the reported options Mr. Trump is now considering, the answer is obvious: Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit…
He is a committed textualist and originalist, one whose time on the bench has revealed a unique ability to apply these principles to legal facts. He deeply believes in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty.
From the start of his career, he’s applied the Constitution faithfully, even when that made him a lonely voice…
By my count, Judge Kavanaugh’s opinions have been adopted by the justices 11 times-a record of influence and persuasion that suggests he would be effective on the still-divided high court. His influence has been especially notable in cases involving overreach by regulatory agencies…
The through line in Judge Kavanaugh’s jurisprudence is his capable and committed defense of the Constitution and other laws-as written. His 12-year record is one of consistent textualist and originalist jurisprudence. Records can be dangerous in court confirmations, and partisan politics offer the temptation to avoid nominees with long paper trails.
Slate: How Justice Kennedy’s Successor Will Wreak Havoc on Voting Rights and American Democracy
By Richard L. Hasen
In Citizens United v. FEC, Kennedy and Scalia won a battle they had been fighting since the 1990 case Austin v. Michigan Chamber of Commerce. Justice Kennedy believed that campaign spending limits imposed on corporations and labor unions violated the First Amendment, and he described attempts to insure that great economic inequalities not be translated into great political inequalities as a form of “censorship.” Kennedy authored the 5-4 decision, and in other cases after Citizens United, such as the 2014 McCutcheon case, he signed on to opinions which may pave the way for courts to strike down additional limits, such as limits applied on contributions directly to candidates. The next justice may join a new conservative majority in striking down limits on contributions directly to candidates.
But while Kennedy almost always voted to strike down campaign spending limits-the only exception being for foreign spending-he did not go so far as Thomas, who would hold that not only are all campaign contribution limits unconstitutional, laws requiring disclosure of campaign spending and contributions violate the First Amendment as well. Justices Samuel Alito and Neil Gorsuch have expressed some sympathy with this position, and the new Justice may be there too, leaving the decision about campaign disclosure in the hands of Chief Justice Roberts.
Wall Street Journal: The First Amendment’s Undisputed Champion
By Floyd Abrams
He was the Supreme Court’s most dedicated, consistent and eloquent defender of the First Amendment. He played that role when other conservatives rejected First Amendment arguments, and when liberals did. He was the First Amendment champion of the High Court.
Since joining the court in 1988, Justice Kennedy has written so many First Amendment opinions and dissents that it is difficult to choose which ones best illustrate his views. Some are well known, at least by their names, including his majority opinion for the court in Citizens United v. Federal Election Commission (2010). Too many people do not know that Citizens United is rooted in two generally undisputed constitutional propositions: that “political speech must prevail against laws that would suppress it by design or inadvertence,” and that the “First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”
It is instructive to recall two cases decided in Justice Kennedy’s early days…
Independent Groups
Washington Post: Trump has embraced the big-money donor world he once shunned
By Michelle Ye Hee Lee
The money is flowing to America First, an independent operation stocked with former Trump aides that aims to scoop up $100 million through two entities, with the bulk of the funds so far flowing to a nonprofit arm that is not required to disclose the names of its donors.
The chase for wealthy backers is exactly what Trump denounced on the campaign trail in 2016, saying it made candidates “psychologically” beholden to donors and declaring it was “not going to happen with me.”
“Somebody gives them money – not anything wrong – just psychologically when they go to that person, they’re going to do it,” he said in a January 2016 CNN interview. “They owe them.” …
His allies cast it as a pragmatic move, making the same argument that aides to Democratic presidential nominee Hillary Clinton did when she embraced big-money support in her bid.
“He understands the nature of the political landscape today,” Sean Spicer, former White House spokesman and senior adviser to America First Action, the super PAC, said of Trump. “You can’t unilaterally disarm if the other side is going to utilize super PACs.”
They say it does not conflict with Trump’s oft-repeated pledge to “drain the swamp” because the rich donors are simply trying to help Trump achieve his aspirations for the country, not get something out of him.
Daily Beast: This May Be The Shadiest Super PAC Move Ever
By Lachlan Markay
Ohio First PAC finally reported nearly half a million dollars in expenditures on behalf of Rep. Jim Renacci’s Senate campaign on Friday. But it continued to keep key elements of its operation cloaked in secrecy. The filings it submitted to the FEC do not reveal the identities of the group’s donors, just the money it spent…
“The Super PAC is going to have to pay an administrative fine for the late filing of the Pre-Primary Report and each of the late 24-hour reports would be a separate FECA violation,” predicted Brett Kappel, a campaign finance attorney with the firm Ackerman. I would be very surprised if a complaint isn’t filed with the FEC.”…
[I]t appears likely that the PAC’s vendors provided their services on credit, meaning that Ohio First will repay them during a future FEC reporting period. It is also possible that the PAC’s vendors will forgive the debt and effectively provide the services for free, in which case the PAC would retroactively count them as in-kind contributions.
Kappel said that sort of scheme could create its own sort of headaches for Ohio First. “The Super PAC’s vendors are playing a dangerous game,” he said in an email. “If a complaint is filed, they will have to show that their extension of credit is normal and usual in the industry. If not it could be construed as an illegal contribution to the Super PAC.” …
Highway 31, a super PAC supporting Democratic Sen. Doug Jones in an Alabama special election late last year, similarly structured its spending to avoid disclosing the sources of its money. Only after the election was over was it revealed that a handful of prominent Democratic political and interest groups had filled the group’s coffers.
Candidates and Campaigns
Wall Street Journal: If Faith in Democracy Ebbs, Danger Rises
By Gerald F. Seib
Important as civility in public life is, something even more important appears to be imperiled in today’s charged political climate: faith in democracy itself.
During his 2016 presidential campaign, President Donald Trump repeatedly told his followers the electoral system was rigged. He declared that the Republican primary system was rigged against him, that the Democratic primary system was rigged, and that polling places would be rigged in the general election.
More broadly, many of his supporters certainly believed that their own party’s power brokers worked against them and that the political system, steered by financial institutions and dominated by coastal elites, was stacked against them.
Since Mr. Trump’s election-which, presumably, proved the system wasn’t rigged against him-Democrats have been the ones more likely to say the system is rigged…
As the nation prepares to celebrate its Independence Day, it is worth considering the dangers embedded in these grievances. A functioning democracy depends on the belief that the system is fair, that votes count and that the proper recourse for unhappy citizens is the electoral process…
Ironically, each party has a prominent example to point to as evidence the system still works. By his very presence in the White House, President Trump is proof that some hidden establishment hand isn’t in control.
And among Democrats, last week’s stunning primary victory of a 28-year-old newcomer, Alexandria Ocasio-Cortez, who felled a Democratic Party power broker in New York state, is proof that the simple act of voting is a powerful way to effect change. Rep. Joe Crowley had every conceivable conventional advantage in that race. The democratic process had other ideas.
Online Speech Platforms
Washington Post: Facebook’s disclosures under scrutiny as federal agencies join probe of tech giant’s role in sharing data with Cambridge Analytica
By Craig Timberg, Elizabeth Dwoskin, Matt Zapotosky and Devlin Barrett
A federal investigation into Facebook’s sharing of data with political consultancy Cambridge Analytica has broadened to focus on the actions and statements of the tech giant and now involves multiple agencies, including the Securities and Exchange Commission, according to people familiar with the official inquiries.
Representatives for the FBI, the SEC and the Federal Trade Commission have joined the Department of Justice in its inquiries about the two companies and the sharing of personal information of 71 million Americans, suggesting the wide-ranging nature of the investigation, said five people, who spoke on the condition of anonymity to discuss a probe that remains incomplete.
Facebook discovered in 2015 that Cambridge Analytica, which later worked for the Trump campaign, had obtained Facebook data to create voter profiles. Yet Facebook didn’t disclose that information to the public until March, on the eve of the publication of news reports about the matter.
The questioning from federal investigators centers on what Facebook knew three years ago and why the company didn’t reveal it at the time to its users or investors, as well as any discrepancies in more recent accounts, among other issues, according to these people. The Capitol Hill testimony of Facebook officials, including Chief Executive Mark Zuckerberg, also is being scrutinized…
At the time, when made aware of the data Cambridge Analytica had obtained, Facebook investigated the analytics firm and Kogan. Facebook said it ordered them to delete the data and promise not to do it again.
Facebook has not said whether that data was used by Cambridge Analytica’s client, the Trump campaign. Cambridge Analytica said it deleted the data at Facebook’s request.
Wall Street Journal: Facebook Reveals Apps, Others That Got Special Access to User Data
By Georgia Wells
Facebook Inc. FB -1.80% disclosed it gave dozens of companies special access to user data, detailing for the first time a spate of deals that contrasted with the social network’s previous public statements that it restricted personal information to outsiders in 2015.
The deals with app developers, device and software makers-described in a 747 page document released to Congress late on Friday-represent Facebook’s most granular explanation of exemptions that previously had been revealed by The Wall Street Journal and other news organizations.
The disclosure comes as lawmakers have demanded accountability at Facebook for allowing companies access to data on its billions of users without their knowledge, and questioned how far the universe of firms extends.
The States
Baltimore Sun: Google no longer accepting state, local election ads in Maryland as result of new law
By Michael Dresser
Google stopped accepting state and local election ads in Maryland Friday as a result of a new law passed by the General Assembly that requires disclosure of who is paying for political advertising and how much is being spent.
Google spokeswoman Alex Krasov said the Silicon Valley company is unsure it can comply with the law’s regulations, which state officials are reviewing to forge into a national model acceptable to technology firms.
“Our systems are not currently built to collect and provide the information in the time frame required by Maryland’s new disclosure law,” Krasov said…
Online ads are playing an ever-growing role in U.S. political campaigns. They are especially useful for candidates in down-ballot races such as for state delegate, for whom the costs of television or radio can be prohibitive…
Maryland, as one of the first states to adopt such a law, is trying to craft rules that can be a national model because companies “don’t want to have 50 different rules.” …
The legislation passed nearly unanimously in the Senate, but most Republicans opposed it in the House of Delegates. Gov. Larry Hogan allowed it to become law without his signature despite expressing misgivings about its constitutionality. A group of media companies including The Baltimore Sun objected to a provision of the bill that would require them to publish a table of political ad purchases. They contend that requiring media outlets to publish any content violates the First Amendment…
The new law will also give the elections board authority to seek subpoenas to investigate how election campaigns and outside advocacy groups use social media to target voters.
