The Free Speech Record of Judges on Trump’s Short List
Judge Amul Thapar Broadly Supportive of the First Amendment
By IFS Staff
Despite a decade on the federal bench, Judge Thapar has rarely been called to rule upon First Amendment claims, particularly in the context of traditional political speech. While First Amendment claims have generally fared well with Judge Thapar, in his most prominent case involving core speech on political issues, Winter v. Wolnitzek, he showed a somewhat surprising willingness to accept proffered state interests at face value…
The portrait of Judge Thapar that emerges from these cases is not that of a First Amendment warrior, which may surprise some given his reported strong support from Senator Mitch McConnell, the longtime bête noire of the campaign finance “reform” community. Judge Thapar’s opinions, on both the District Court and Court of Appeals, have generally been careful and well within the mainstream of judicial doctrine on First Amendment issues. He appears reticent to dismiss First Amendment claims on procedural grounds, but also unwilling to stake out bold positions protecting First Amendment rights even in the absence of controlling authority. However, his opinions have, nonetheless, been broadly supportive of First Amendment rights, if perhaps quick to accept the legitimacy of various asserted state interests in regulation.
Supreme Court
Wall Street Journal: Trump Winnows Down Supreme Court Picks, Focusing on Three
By Peter Nicholas and Louise Radnofsky
President Donald Trump’s search for a Supreme Court justice to succeed Anthony Kennedy is focusing on a trio of federal judges, with a decision expected this week in anticipation of an announcement on Monday…
Following a brisk round of interviews Monday and Tuesday, the three front-runners at this late stage in the president’s search are all U.S. appeals court judges: Brett Kavanaugh of Maryland, of the D.C. Circuit; Raymond Kethledge of Michigan, of the Sixth Circuit; and Amy Coney Barrett of Indiana, of the Seventh Circuit…
Others have called the Republican president to promote federal appeals court judge Thomas Hardiman of Pennsylvania, reminding Mr. Trump that he has a compelling life story as a onetime taxi driver…
Mr. Trump spoke by phone Tuesday to at least two potential nominees, a person familiar with the matter said: Judge Hardiman and Judge Joan Larsen of the U.S. Court of Appeals for the Sixth Circuit.
That follows a round of interviews on Monday with federal judges Barrett, Kavanaugh and Kethledge and Judge Amul Thapar of the Sixth Circuit, according to two people familiar with the matter.
Mr. Trump is believed to have enjoyed his meeting with Judge Kavanaugh, a former clerk of Justice Kennedy. Another fan of Judge Kavanaugh is Mr. McGahn, a person close to the White House said…
Mr. Trump also enjoyed his interview with Judge Kethledge and felt the two “hit it off,” a person close to the White House said.
Judge Barrett, a former clerk to the late Justice Antonin Scalia who spent most of her career as an academic at Notre Dame Law School, is seen by some allies of the president as looking the part of a modern Supreme Court justice.
Above the Law: The Supreme Court Sweepstakes: The Latest State Of Play – And The Case For Judge Kavanaugh
By David Lat
First, the passionate supporters of Judge Barrett, aka #TeamAmy, will be disappointed to learn that it won’t be her, at least this time around (despite predictions to the contrary by such knowledgeable observers as Chris Cillizza). The conservative legal world loves Judge Barrett, and she’s a rising star of the federal judiciary. But with just eight months on the bench, it would be a stretch to say her star has already risen – and the White House recognizes this…
Second, even though my earlier post focused on Judge Kavanaugh and Judge Kethledge, and even though they remain the frontrunners, Judge Thapar shouldn’t be counted out. President Trump likes a number of things about Thapar…
Some Kavanaugh supporters misread the post as arguing that Kethledge “deserves” the SCOTUS seat more than Kavanaugh. That’s not the case; to the contrary, if one were to go on a theory of desert, Kavanaugh deserves it more than Kethledge. There’s no one out there who has labored longer or harder in the Republican/conservative legal vineyard, as both a lawyer and a judge, than Brett Kavanaugh (which is why criticisms of him from conservatives are especially misguided)…
No matter who the nominee is, this fight won’t be easy – and some fights are worth having. Because Judge Kavanaugh has more of a record, than pretty much all the nominees, on the most controversial issues of the day – abortion, the administrative state, Obamacare, separation of powers – he has demonstrated both his brilliance and his conservatism, time and time again. And when it comes to a life-tenured seat on the highest court in the land, that makes him worth fighting for.
The Courts
Courthouse News Service: Libertarians Can Continue Contribution Limits Challenge
By Kayla Goggin
As recounted in court documents, when Raymond Burrington died in 2008, he left the national committee of the Libertarian Party a bequest of $217,734.
Applying longstanding law as codified under the Federal Elections Campaign Act, the Federal Election Commission determined the contribution exceeded the allowable political donation limits for any given year…
Although the court certified a narrowed version of the committee’s question which asked specifically whether imposing contribution limits on the donor’s bequest violated the First Amendment rights of the committee, the bequest was fully disbursed through an escrow account according to the FEC’s contribution limitations before the D.C. Circuit court could hear the certified question.
The certification was dismissed as moot and the district court’s order was vacated…
In August 2014, Joseph Shaber left the party $235,575 in a living trust.
According to court documents, the party accepted an amount equal to the annual contribution limits and placed the rest of the money into an escrow account.
The committee then sued to prevent the FEC from enforcing contribution limits on Shaber’s bequest and sought to certify three questions of law to the D.C. Circuit court.
On Friday, the court certified the question: “Does imposing annual contribution limits against the bequest of Joseph Shaber violate the First Amendment rights of the Libertarian National Committee?” …
The district court found that the committee offered a non-frivolous argument showing that Shaber’s bequest does not raise corruption concerns.
Free Speech
FIRE: The First Amendment is for all Americans, regardless of their politics
By Robert Shibley
[A] front-page article in Sunday’s New York Times was titled “How Conservatives Weaponized the First Amendment.” The story quotes a number of left-leaning figures, including feminist scholar Catharine MacKinnon and consumer advocate Ralph Nader, who signal their frustration with recent court cases protecting conservative speech.
Another academic cited in the article, Georgetown Law professor Louis Seidman, recently made waves in legal circles with a forthcoming law review article whose title asks, “Can free speech be progressive?” He asserts, “The answer is no,” lamenting that progressives “just can’t shake their mindless attraction to the bright flame of our free speech tradition.” …
The underlying assumption of the new First Amendment critics is that it is self-evident that progressive positions (whatever those may be) are correct. Therefore, if the application of free speech principles makes accomplishing their aims more difficult, it’s freedom of speech that is the problem. There can be little doubt that Anthony Comstock, Joseph McCarthy, and the myriad other right-leaning censors of the past felt the very same way when the ideals of free speech got in the way of their own plans to “improve” American society…
Especially in today’s hyper-polarized politics, labeling an idea or proposition as merely a weapon for, or a conspiracy by, the other side is akin to giving partisans a permission slip to turn off their brains. It’s an easy, expedient measure that gives your “team” one less thing to think about in a world deluged with news and information.
Congress
The Hill: Senate panel upholds finding that Russia backed Trump, contradicting House
By Katie Bo Williams
The Senate Intelligence Committee has unequivocally upheld the conclusion of the intelligence community that Russia developed a “clear preference” for then-candidate Donald Trump in the 2016 election and sought to help him win the White House.
The assessment, announced in an unclassified summary released Tuesday, represents a direct repudiation of the committee’s counterpart in the House – and of President Trump himself, who has consistently rejected assertions that Moscow sought to bolster his candidacy through its election interference.
“The Committee has spent the last 16 months reviewing the sources, tradecraft and analytic work underpinning the Intelligence Community Assessment and sees no reason to dispute the conclusions,” said Chairman Richard Burr (R-N.C.) said in a statement.
The so-called “intelligence community assessment,” or ICA, is a “sound intelligence production,” according the Senate panel.
The Media
By Robby Soave
New York Times Editor-in-Chief Dean Baquet announced Tuesday that he had reassigned Ali Watkins, a young national security reporter whose romantic relationship with James Wolfe, a Senate Intelligence Committee aide 30 years her senior, has raised ethical concerns.
The story has “rattled Washington media,” according to the Times’ own reporting on this matter. But there’s an issue here that’s much more important than two consenting adults carrying on an ill-advised affair: the behavior of federal prosecutors, who obtained Watkins’ emails and very clearly spied on her in service of a dubious war on leakers.
Online Speech Platforms
New York Times: Facebook Ads Offer Peek at Looming Supreme Court Fight
By Kevin Roose
These groups, which are classified as 501(c)(4) advocacy groups, are not required to identify their donors or disclose much of their spending. But new Facebook ad policies are for the first time giving a glimpse of how money from these organizations flows through social media…
These steps have been controversial among news publishers, but they have been popular among journalists and watchdog groups, who have lauded them as a valuable peek behind the dark-money curtain.
“This is more information than we’ve ever had previously about what dark money groups are doing online,” said Brendan Fischer, a program director at the Campaign Legal Center, a nonpartisan watchdog group. “Up until this point, we really had no information whatsoever about how much money a group like Judicial Crisis Network was spending on digital ads, much less what those ads looked like or who they were targeted to.” …
A Facebook spokeswomen, Elisabeth Diana, said that the company did not require political groups to identify their donors, and that it believed the Federal Election Commission, which monitors political spending, was better positioned to investigate these groups.
FEC
Center for Public Integrity: Five years ago, the FEC’s top lawyer resigned. No permanent replacement has yet been named.
By Dave Levinthal and Suhauna Hussain
[T]oday marks five years since the FEC employed a bona fide, duly appointed general counsel to oversee its attorneys and orchestrate the agency’s legal efforts – a void that is a “reflection of the dysfunction at the FEC,” says the last man to hold the job, Tony Herman…
These days, FEC Chairwoman Caroline Hunter, a Republican, and Vice Chairwoman Ellen Weintraub, a Democrat, aren’t offering any reasons at all.
“Seriously, again? Aren’t you tired of writing this story?” Hunter said.
“I don’t have any news for you,” Weintraub said.
Commissioner Steven Walther, an independent who often votes with the FEC’s Democrats, said he would like to see commissioners collectively make a better effort, because “we need” a general counsel.
But other high-profile FEC positions, which are either vacant or filled on an “acting” basis, have been FEC commissioners’ greater focus, Walther said.
Those positions include inspector general, accounting director, chief financial officer, deputy staff director and associate general counsel for policy…
The lack of a permanent general counsel may not affect the day-to-day duties of the office, said Michael Columbo, who previously worked as an FEC staff attorney and counsel to former commissioner Lee Goodman, a Republican. “It’s not ideal but it’s not exactly a crisis either,” Columbo said…
For now, it’ll take unanimous agreement among FEC commissioners – who together have served 32 years past the expiration of their six-year terms – to appoint a fully-fledged general counsel.
The States
Reason: Google Shuts Down Political Ads in Two States Due to Difficult Reporting Guidelines
By Scott Shackford
Google, one of the biggest online platforms for advertising, is currently refusing to accept local political ads in two states: Washington and Maryland.
Blame the panic over Russian-purchased political advertisements intended to sway U.S. elections. Thanks to fears of Russian interference, some states have passed laws demanding more information about who is buying ads and how much they’re paying for them.
The problem isn’t the demand for transparency. It’s politicians’ insistence on creating hyperfast reporting guidelines without knowing if or how tech and media companies can comply…
These rules don’t impact everybody in the political sphere equally. Google’s decision makes it harder for challengers with less money and connections to reach voters. The incumbents, who wrote and voted for these regulations, get the benefits. They have years of press coverage. They have war chests. They have name recognition.
And do we really think the Russians are trying to meddle in the race over who represents Rockville? The New York Times notes that the Internet Research Agency, the Russian company accused of meddling in the 2016 presidential election, spent $5,000 on Google ads. Yet the panic over Russian ads (which don’t even appear to have been particularly effective) has allowed these bills to sail through. Hardly anyone seems interested in considering why these regulations are being written and pushed by elected officials who stand to benefit from them.
Washington Post: Maryland pioneers state regulation of online political advertising
By Ovetta Wiggins and Tony Romm
At least one tech giant has stopped accepting state and local political ads in Maryland as a result of a new state law that regulates such online material.
A representative from Google said the company made its decision before the law – one of the first of its kind in the country – took effect July 1…
Companies such as Facebook, Google and Twitter, as well as newspapers with an online footprint of at least 100,000 unique monthly viewers, are now required to maintain databases of all Maryland political ads on their platforms. The databases contain information similar to what is required from television stations for ad buys, including who paid for the ads and how much they spent…
Maryland Gov. Larry Hogan (R) declined to sign the online political advertising bill, citing “serious constitutional concerns.”
“The legislation contains vague and overbroad language that could have unintended consequences of stifling the free speech of citizens who are mobilizing on social media platforms,” Hogan, whose 2014 campaign was boosted by a heavy presence on Facebook, wrote in a letter to the presiding officers of the General Assembly…
The Maryland-Delaware-DC Press Association, concerned about setting a precedent where the government is directing media outlets on what should be published, asked the governor to veto the bill…
In October, a trio of federal lawmakers introduced a bill called the Honest Ads Act that would require the tech giants to maintain public databases of all political ads that appear on their platforms, as well as who viewed them…
“I appreciate that the states are stepping up to the plate, but in the end we need a national solution across major social media platforms,” Sen. Amy Klobuchar (D-Minn.), one of the sponsors of the legislation, said in a statement.
