]

Luke McCloud brings rare experience to his first U.S. Supreme Court argument on Wednesday, having clerked for both Brett Kavanaugh and Sonia Sotomayor.

The Williams & Connolly partner takes the lectern for a pro-bono client seeking to shorten his 19-year prison term for crack-cocaine charges.

McCloud’s unusual clerkship pairing is a fitting backdrop for the case he’s arguing, which has unified a diverse set of groups ranging from the ACLU to the American Conservative Union.

They’re backing Carlos Concepcion, who wants his sentence reduced under the First Step Act, the 2018 criminal-justice reform bill passed with bipartisan support and signed into law by former President Donald Trump. Concepcion was sentenced in 2009, when crack penalties were harsher, a relic of the Reagan-era disparity between crack and powder cocaine.

The 2010 Fair Sentencing Act leveled the disparity somewhat, and the First Step Act made those changes retroactive. But questions abound over how to apply the 2018 act, with Wednesday’s hearing focused on what judges consider when contemplating resentencing.

The issue affects thousands of prisoners, Concepcion told the justices in his petition, filed by Williams & Connolly lawyers and federal public defender J. Martin Richey, who’s second-chairing the argument.

McCloud described the preparation as very intense.

“You really need to live with the case,” said the 2011 Harvard Law graduate, who clerked for Kavanaugh on the D.C. Circuit from 2013-14 and the following year for Sotomayor on the Supreme Court.

Changing Face

Among the lawyers helping McCloud prepare were his partners with recent high-court experience. The firm’s appellate practice is led by Lisa Blatt, a top Supreme Court lawyer who rejoined the firm in 2019 after a previous stint there, as part of a broader shakeup in the appellate legal world.

McCloud praised Blatt’s efforts to give more-junior lawyers arguments, something that doesn’t always happen at other firms.

“When Lisa came in and took over the appellate practice, one of the first things she said was that she’s here not only to head this practice, but also to try to change the face of the appellate bar,” McCloud recalled.

He noted that two of his partners, Sarah Harris and Amy Mason Saharia, made their debuts last term in cases that Blatt could have argued, “but she wanted to make sure they were getting opportunities.” Most lawyers appearing before the justices are white men.

McCloud, who is Black, said he’s not giving much thought to his race as he prepared for the argument. “I’m just thinking about doing the best job that I can do,” he said.

“That said, I do certainly hope that there are more diverse attorneys who get the chance, like I’ve gotten the chance, to argue in front of the Court,” he said. “I know for a fact that there are a lot of very talented diverse attorneys who are interested in doing appellate work and are out there doing appellate work today, and there’s no reason that they shouldn’t be arguing in front of the Supreme Court.”

DeSantis: Kavanaugh and Roberts lacked ‘backbone’ on vaccine mandate

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Florida Gov. Ron DeSantis said Supreme Court justices John Roberts and Brett Kavanaugh lacked “backbone” for not striking down the Biden administration’s health care worker vaccine mandate.

In two decisions Thursday, the nation’s top court struck down the Biden administration’s COVID-19 vaccine mandate for large businesses, but upheld its mandate for most healthcare workers.

Roberts and Kavanaugh sided with the court’s liberal justices, upholding the the health care-worker vaccine mandate, five to four.

“Honestly, Roberts and Kavanaugh did not have a backbone on that decision. That’s just the bottom line,” DeSantis said on an episode of the right-leaning podcast Ruthless.

DeSantis has said Florida will not enforce the healthcare-worker vaccine mandate, which he believes would sideline nurses who have natural immunity to COVID-19.

The Supreme Court ruled against the Biden administration’s vaccine mandate for large businesses, but upheld the mandate for healthcare workers. Erin Schaff/The New York Times via AP, Pool, File

“In other states they fired nurses who are not vaccinated. Many of them have natural immunity from prior infections. So they’re actually bringing back to work nurses who are COVID-positive. They are vaccinated but we know that’s not stopping it … Meanwhile the unvaccinated, likely immune from prior infection, healthy nurses are on the sidelines, fired?” DeSantis said.

DeSantis claimed that Kavanaugh and Roberts “did not have a backbone on that decision.” Erin Schaff/The New York Times via AP, Pool

DeSantis also fired a shot at the president’s chief medical advisor, Anthony Fauci, who initially denied to Congress that the National Institutes of Health had funded gain-of-function research on bat coronaviruses in Wuhan, China, before later admitting and defending it.

“Fauci funded them at the Wuhan lab and he lied about it. And why is he not being prosecuted for lying to Congress?” DeSantis asked.

Supreme Court: If Trump Wants to Obstruct the Jan. 6 Committee, He’ll Need Better Arguments

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On Wednesday evening, the Supreme Court delivered a crushing blow to Donald Trump’s efforts to keep relevant White House records secret from the House select committee to investigate the Jan. 6 attack. In an apparent 8–1 decision, with only Justice Clarence Thomas noting his dissent, the Supreme Court ruled that the U.S. Court of Appeals for the District of Columbia Circuit had not made an obvious error in holding that Trump’s claims of executive privilege over the documents would fail under any test proposed by the former president.

Under federal law, the Supreme Court could only grant Trump a reprieve at this stage if “the legal rights at issue are indisputably clear.” It appears a majority of the justices did not believe the former president has an “indisputably clear” right to stop the National Archives from releasing potentially incriminating documents. Their decision means that the committee should immediately begin to receive records surrounding the events of Jan. 6 from the National Archives, prying loose critical information as to how Trump and those around him responded in real time to an ongoing insurrection that the president had inspired. The court did, however, leave the door open for Trump to raise stronger, more specific executive privilege claims to try to block testimony of other associates who have refused to cooperate with the committee. Justice Brett Kavanaugh issued a concurrence that also gave future witnesses a tool to seek to avoid testimony.

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In its December decision, the D.C. Circuit strongly suggested that a former president could not claim executive privilege if the current president waived that privilege. Thus, Trump could not stop the Jan. 6 committee from obtaining records with Biden’s blessing. The Supreme Court clarified that this portion of the lower court’s opinion is not a binding precedent. Kavanaugh went further, suggesting that a former president’s privilege claims might carry similar weight as claims raised by the current president. Kavanaugh wrote:

If Presidents and their advisers thought that the privilege’s protections would terminate at the end of the Presidency and that their privileged communications could be disclosed when the President left office (or were subject to the absolute control of a subsequent President who could be a political opponent of a former President), the consequences for the Presidency would be severe.

As Kavanaugh is essentially the tiebreaking vote on this extremely conservative court, his views on the executive privilege of former presidents are likely to carry great weight should the issue come before the court again. With multiple Jan. 6 witnesses refusing to cooperate with the committee’s subpoenas, it seems inevitable that the issue may resurface—and that these witnesses’ stalling tactics may work.

Though Steve Bannon has already been charged with criminal contempt for refusing to respect a congressional subpoena, former chief of staff Mark Meadows has not been charged yet despite a criminal referral from Congress. The court’s order on Wednesday may offer a temporary reprieve for Meadows, or perhaps even a get-out-of-jail-free card, if he’s able to raise stronger privilege claims than Trump brought this time around.

As the D.C. Circuit made clear, raising a stronger claim should not be difficult given how little effort Trump’s attorneys made to demonstrate any reason whatsoever for the courts to accept his privilege claim. As the lower court wrote, Trump had failed “even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents.” If Meadows or other Jan. 6 witnesses are able to raise even one specific reason executive privilege claims should shield their testimony, they will have done more than Trump did in this litigation and will have a better chance before a favorable Supreme Court.

In this case, though, Trump’s claims are toast. “Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent,” the Supreme Court held in siding against Trump, “his status as a former President necessarily made no difference to the court’s decision.”

The documents that the Jan. 6 committee will now receive should be extremely revelatory. They include early drafts of statements that Trump gave that day that failed to quell the violence as lawmakers begged him for support, a draft executive order on election integrity, and handwritten notes concerning the events of Jan. 6 from Meadows himself.

While Kavanaugh and the rest of the court left open the door for witnesses like Meadows to try to shirk their duty to testify, Wednesday’s order may make their effort to avoid testimony more difficult—if only for practical purposes. The more information that is revealed about Jan. 6, the greater odds will be that Congress can use that information to demonstrate that there is no reasonable excuse to block future revelations through privilege. As a result, Meadows and others might have a harder time convincing the justices to block the committee’s requests if and when this conflict returns to the Supreme Court.

‘Record speed and focus’: Biden’s judicial picks diversify bench

]

During a hearing on her nomination to the 9th U.S. Circuit Court of Appeals, Jennifer Sung hit a speed bump.

Republican Sen. John Kennedy from Louisiana, one of the Senate Judiciary Committee’s more acerbic questioners, had taken issue with a letter Ms. Sung co-signed in 2018 describing U.S. Supreme Court Justice Brett Kavanaugh as “morally bankrupt.”

An Oregon labor lawyer who would be the first Asian American and Pacific Islander to serve on the 9th Circuit in Oregon defended the letter but said that if confirmed, “I would absolutely respect the authority of every Supreme Court justice, and all of its precedents, without reservation.”

“See, I don’t believe you,” replied Senator Kennedy. “I think you said a few years ago what you said about Brett Kavanaugh, and I think you believed it.”

Three months later, on Dec. 15, 2021, in a 50-49 party-line vote, the Senate confirmed her, along with another federal district court nominee. Later that week the Senate voted to confirm nine more district court judges, bringing President Joe Biden’s number of judicial appointments to 40.

Quietly, this has been one of President Biden’s most impressive achievements in his first year in office. No president since Ronald Reagan has gotten so many judges confirmed in his first year. Mr. Biden has also fulfilled a campaign promise by nominating perhaps the most diverse slate of judicial picks ever: 75% are women and 71% are people of color, according to FiveThirtyEight. Also important, court watchers say, is that the 40 new judges bring with them a wide backdrop of legal experience. Rather than prosecutors and Ivy League professors, these are public defenders, civil rights lawyers, and, as in the case of new 9th Circuit Judge Sung, labor rights lawyers.

In a year in which pandemic recovery, voting rights, and other legislative priorities have languished, Senate Democrats and the Biden administration have been ruthlessly efficient in trying to stock the federal judiciary with progressive judges likely to serve for decades.

Story continues

Their blueprint for this finely tuned confirmation machine? The Republican Party, and in particular, the Trump administration.

“Modern presidents take appointing federal judges very seriously,” says Christina Boyd, an associate professor of political science at the University of Georgia. “But we’re seeing record speed and focus from the Biden administration on their federal judgeships in ways we probably haven’t seen, especially for a Democratic administration, maybe ever.”

“There definitely has been some learning”

President Biden may also have been facing unprecedented pressure from his base to focus on judicial appointments.

In four years, President Donald Trump made more than 200 judicial appointments, including three Supreme Court justices and 54 appeals court judges – and they were mostly white men. The figures are striking – 84% were white and 76% were male – as was the speed of appointments. By the time President Biden was inaugurated on Jan. 20, 2021, some 28% of active federal judges had been appointed by President Trump. That compares with 17% for President Barack Obama after his first term.

Watching the contentious confirmations of Justices Kavanaugh and Amy Coney Barrett – the latter just a month before the presidential election – “outraged” progressives, says Daniel Goldberg, legal director at the Alliance for Justice, which advocates for progressive judicial appointments.

“A galvanized public demanded that this president and the Senate prioritize putting on the bench judges who will protect the rights of all Americans, not just the wealthy and powerful,” he adds.

For both parties, appointing judges has become an important issue for base voters. Partisanship and gridlock, at least on major legislation, have taken a stronger hold in Congress, and the White House and the courts have become more active in driving policy changes – particularly when the presidency and Congress are divided.

And in the three branches of government, federal judges are the only members with life tenure.

“Once you get judges on the bench, they’re shaping law for decades,” says Gbemende Johnson, an associate professor at Hamilton College in Clinton, New York, who studies judicial politics.

“As you see greater polarization, that has only added to the battles over these seats,” she adds.

President Biden, a former vice president and chairman of the Senate Judiciary Committee, is a veteran of those political battles. That experience has helped his administration build an efficient system for processing and confirming judges, but he would also have been aware of the criticism President Obama received over the low priority his administration gave to judicial appointments.

The speed with which President Trump was able to appoint judges “caused a lot of alarm for Democratic supporters,” says Dr. Johnson. “There definitely has been some learning.”

The Trump administration had a team within the White House Counsel’s office focused on judicial nominations. They also worked closely with the conservative Federalist Society and senior Senate Republicans like Majority Leader Mitch McConnell and Judiciary Committee Chairmen Chuck Grassley and Lindsey Graham.

Former President Trump and senior Senate Republicans “set up one of the most efficient assembly lines ever for judicial nominees,” says Mike Davis, a former aide to Senator Grassley and founder of the Article III Project, a group formed during the Trump administration to promote conservative judicial picks.

“President Biden is now benefiting from that,” he adds.

Noting specifically the hiring of Ron Klain as chief of staff and Paige Herwig, a former Democratic staffer on the Senate Judiciary Committee, to the White House Counsel’s office, he says, the Biden administration “has assembled a very competent and experienced team to very quickly fill these judicial nominations.”

“I think Ron and Paige understood Democrats did a very poor job of filling judicial vacancies in the past,” says Mr. Davis.

A focus on experiential diversity

The Biden administration has not just been getting federal judges confirmed at a breakneck pace. The confirmations also represent a historically diverse slate of judges.

The percentages of women and people of color appointed are higher than for any president in history, but where the Biden administration has really been breaking new ground is in the professional diversity of its judicial picks.

Traditionally, federal judges have often come from careers as federal prosecutors or lawyers in big law firms. But only a quarter of President Biden’s judges ever worked as prosecutors, and about half had careers in public defense or advocacy, according to FiveThirtyEight.

“This is probably the first time we’ve seen a presidential administration actively focus on getting more experiential diversity on the federal courts,” says Dr. Boyd of the University of Georgia.

People who have represented indigent defendants or who have fought the government or big corporations in court bring valuable perspectives and experiences to the bench, experts say. A former public defender may have a better understanding of ineffective assistance of counsel claims (which argue that poor defense representation probably affected the decision); an environmental lawyer may have a better understanding of the harms industrial activity can have on people and wildlife.

“Just because you’re a prosecutor doesn’t mean you’re completely unsympathetic to those things,” says Dr. Johnson from Hamilton College. “But it’s in these other areas that [President Biden] is going to find nominees that are more likely to align with [his] policy and legal priorities.”

It’s unclear how professional diversity affects the outcome of actual cases, according to Dr. Boyd. But there has been extensive research on the practical effects of racial and gender diversity in the federal courts.

Studies have found that a trial judge’s sex and race have very large effects on their own decision-making and the decision-making of their colleagues. (In appeals courts, where judges often handle cases in panels of three, the latter effect can be particularly significant.) Women and nonwhite judges also write longer and more detailed opinions, according to a study last year.

“It might be just five out of 500 defendants see a different outcome,” says Dr. Boyd, “but I think the likelihood we get different outcomes will be there.”

There could be a looming challenge, however.

Most of the judicial vacancies still to be filled are in purple and red states. During the Trump administration, the Republican-led Senate Judiciary Committee did away with the “blue slip” tradition, which allowed state senators to weigh in on appeals court nominees in their home states. Current Senate Judiciary Chairman Richard Durbin, a Democrat from Illinois, has said he is not going to reinstate the courtesy. But as the midterm elections draw closer, Senate Republicans may fight harder to keep vacancies open, hoping to win back control of the chamber in November.

With the Supreme Court deciding only about 60 or 70 cases a year, appeals courts deliver the final verdict on most cases in federal courts. Former President Trump’s speed with regard to appellate judges helped him create Republican-appointed majorities on five of the 13 appeals courts and expand majorities on three. So far, President Biden has been able to shift the ideological majority on one appeals court – the 2nd Circuit – and he has the opportunity to flip the 3rd Circuit this year as well.

One certainty is that many people, on the right and the left, will be watching.

“We’re definitely getting a lot of attention on the judiciary these days,” says Dr. Boyd.

President Biden’s judges “are going to be there for 30 or 40 years. This is going to be a long stamp on federal law and policy,” she adds. “Senators are seeing that, and the public [is] seeing that.”

It was a great day in the Supreme Court for anyone who wants to bribe a lawmaker

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In this Supreme Court, any lawyer who dares to defend a campaign finance law knows they have little chance of prevailing. And Wednesday’s oral argument on one of the few remaining safeguards against excessive money in politics was no exception.

The unfortunate soul tasked with defending a niche but important anti-corruption law was Malcolm Stewart, a veteran advocate and deputy solicitor general of the United States. But at least five of the Court’s six Republican appointees displayed no openness to Stewart’s arguments, and no fear of the very real possibility that rejecting his arguments would effectively legalize bribery.

The case is Federal Election Commission v. Ted Cruz for Senate, and it involves a federal law intended to prevent campaign donors from putting money directly into the pockets of elected officials. Specifically, the law permits candidates to loan money to their own campaigns, but forbids the campaign from repaying more than $250,000 of that loan from funds raised after the election takes place.

Typically, federal law draws a sharp line between money donated to a campaign, which can only be spent on the election effort, and money given directly to a candidate, which is ordinarily not allowed. But loan repayments exist in a gray area between these two kinds of donations. Yes, money repaid to a candidate ostensibly just reimburses that candidate for money they fronted during the campaign. But any dollar given by donors to repay such loans still goes into the pocket of a former candidate who may very well be a powerful elected official by the time they receive the money.

Without a cap on loan repayments, elected officials with clever accountants could profit off of their donors. In 1998, for example, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). By 2009, she’d reportedly raised $221,780 to repay that loan, meaning that she earned at least $71,000 in profits.

Thus, should this challenge to the repayment cap succeed — and it appears overwhelmingly likely to succeed — elected officials could potentially make enormous loans to their campaigns at high interest rates, and then use those loans as a vehicle to accept bribes from lobbyists and other donors who want to trade money for access to the official.

The Court’s conservative majority appears eager to tear down one of the few remaining limits on campaign donations

To understand how we got to the point where the Supreme Court could effectively legalize bribery, it’s helpful to turn back the clock more than a decade, to the Court’s decision in Citizens United v. FEC (2010). That decision injected a kind of willful ignorance of how campaign donors can buy access to elected officials, and use that access to secure their policy goals, into the Court’s understanding of the Constitution.

Prior to Citizens United, the Court held that lawmakers may regulate campaign finance in order to prevent “corruption and the appearance of corruption.” But Citizens United redefined the word “corruption” so narrowly as to render it meaningless. After that decision, only “quid pro quo” arrangements, where money is exchanged for “political favors” count as corruption. And merely gaining privileged access to an elected official does not count as a “political favor.”

So, it is still unlawful for a lobbyist to say to a lawmaker, “Here is $2,000, but you can only have it if you vote ‘no’ on the Freedom to Vote Act.” But if a lobbyist says, “Here’s $2,000. I would like to come meet with you to explain why you should vote against the Freedom to Vote Act,” that’s fine.

Stewart and the rest of the team of DOJ lawyers defending the loan repayment law hoped to convince the Court that any money that benefits an elected official personally, even if that money simply repays a loan the official made to their own campaign, is different in kind from other campaign donations. In other words, that it should be more easily regulated than the kind of donations contemplated by cases like Citizens United. But the Republican appointees showed little sympathy for this argument.

Justice Amy Coney Barrett, for example, claimed that there “wasn’t any actual evidence of quid pro quo corruption causing problems” in the context of loan repayment — which is close to an explicit statement that she believes this law violates Citizens United. Justice Brett Kavanaugh asked why a still-existing federal limit on the amount of money that an individual donor may give to a candidate, currently $2,900, isn’t a sufficient safeguard against corruption. He also suggested that the loan repayment limit is invalid because it imposes a “chill” on candidates who wish to donate money to their campaigns.

Meanwhile, the three most conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — gave no indication that they’d break with their historic pattern of opposing campaign finance laws. Alito spent much of the morning appearing to mock Stewart’s arguments.

Even Stewart seemed to know he was doomed from the beginning

One sign the Justice Department recognized that nearly any attempt to defend a campaign finance law before this conservative Court is doomed: Stewart spent the bulk of his argument time on procedural and jurisdiction arguments that could give the Court a reason to dismiss this case without deciding it. But those arguments are unlikely to receive five votes — and at least one of Stewart’s jurisdictional claims may not even receive a single vote.

As the Justice Department explained in its brief, Sen. Cruz manufactured this case in order to give the Court an opportunity to strike down the loan repayment law. On the day before the 2018 election, Cruz lent his campaign $260,000 — $10,000 more than the amount that could be repaid with funds raised after the election.

Cruz’s campaign then waited until more than 20 days after the election to refund him $250,000, apparently because a federal regulation gives the campaign a 20-day window to repay loans of any amount (using funds raised prior to the election).

Yet, while Stewart claimed that the Court cannot hear a suit seeking to remedy such “self-inflicted injuries,” even some of the liberal justices appeared unmoved by this argument. And several of the conservative justices ridiculed it. As Justice Clarence Thomas quipped, under Stewart’s theory, why wasn’t Homer Plessy’s decision to sit in a whites-only rail car in order to challenge a law mandating segregation a self-inflicted injury?

Late in the oral argument, Justice Elena Kagan floated a way to mitigate the government’s likely loss in this case — perhaps the Court could only strike down the regulation giving Cruz 20 days to receive full repayment of his loan, rather than the broader statute capping the size of the reimbursement. Kagan has suggested in the past that the way for liberals to navigate a conservative Court is to take “big questions and make them small.”

But, while Chief Justice John Roberts expressed some openness to Kagan’s approach, or to a related approach that would require Cruz to restart his lawsuit in a trial court in order to challenge the regulation, he was the only Republican appointee who showed such openness.

In the end, it appears very likely that Cruz will prevail, and that clever elected officials will gain the ability to accept legal bribes.