Wednesday, July 18, 2018

A Needed Policy Change to Eliminate Bias at the IRS

In the past, conservative groups had to disclose sensitive information to the bureaucratic and often biased organization that is the Internal Revenue Service (IRS). Fox News reports that thanks to a recent policy change, that is no longer the case.
The Trump administration is lifting requirements that some tax-exempt groups disclose the identities of their donors to federal tax authorities. The change benefits groups that spend millions of dollars on political ads, such as the U.S. Chamber of Commerce and an organization tied to the billionaire Koch brothers.
This major announcement will bring a needed change of privacy to an organization that has historically discriminated against conservatives and right-leaning organizations.
Under the new guidance, social-welfare groups and other tax-exempt organizations, besides charitable and political organizations, will no longer have to provide the IRS with the names and addresses of donors. The groups will still have to keep donor information in their own records and make it available for the IRS when the agency needs the information in audits of taxpayers.
Majority Leader Mitch McConnell praised the change on the Senate floor yesterday:
Last night, the Internal Revenue Service made an important announcement. It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association. And it’s a straightforward, commonsense policy decision. . . . 
It raises the question: If the IRS isn’t permitted to do anything with this set of Americans’ private information, why collect it in the first place? Unfortunately, we know exactly what happens when the government stockpiles private data about the donations through which Americans participate in the public discourse. We know exactly why many on the left are keen for bureaucrats to have this confidential information. Where it leads, is Americans being bullied – bullied -- for exercising their First Amendment rights. . . . 
So I welcome this announcement, and applaud the leadership of Secretary Mnuchin and Acting IRS Commissioner David Kautter. I’m glad that this step will make the right of Americans to freely advocate for their strongly-held beliefs less vulnerable to the malice of some in government, and to the proven failures of bureaucracies. And I urge continued vigilance for all of us who cherish our First Amendment.
Conservative groups have long been calling for a policy proposal like this one to take place, even coming together to write a letter to President Trump. The New York Times reports,
Americans for Prosperity and other 501(c)(4) organizations in the Koch brothers’ network of advocacy groups were among dozens of such nonprofit groups to sign onto a letter sent in May to Mr. Trump and Mr. Mnuchin declaring a policy change “an issue of utmost importance.” The letter accused the I.R.S. of “targeting of nonprofit organizations on the basis of ideology.”
Officials with the Treasury Department largely echoed that reasoning, explaining that the move was driven in part by the I.R.S.’s inappropriate targeting of political groups during the administrations of Presidents George W. Bush and Barack Obama.
The RNLA welcomes this new policy change as private organizations should never face government discrimination for their political beliefs. This proposal serves as one more safeguard against potential abuse.

Monday, July 16, 2018

Cato Scholar Defends Kavanaugh

On Wednesday, July 18 the RNLA will be hosting its second-annual Summer Rooftop Reception featuring Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  Shapiro's Twitter feed is a must-read for those following the Supreme Court generally and right now on the Kavanaugh nomination. Shapiro will be giving a brief review of this year's Supreme Court term and discussing the ongoing efforts to confirm Judge Brett Kavanaugh.

Shapiro has been a staunch supporter of Judge Kavanaugh since President Trump announced his nomination on July 9th.  Immediately after the announcement, Shapiro wrote:
Brett Kavanaugh is a strong pick for the Supreme Court.
In his 12 years on the D.C. Circuit, Judge Kavanaugh has demonstrated a devotion to legal text and constitutional principle. I admire his dedication to the Constitution’s structural protections for liberty, his steadfast defense of the rights of speech and religious conscience, and most notably his willingness to question the excesses of the regulatory state. He has repeatedly affirmed that judges serve not as the champions of faction, but as the readers of laws and adjudicators of disputes. 
One thing is for sure - the left will do and say anything to attack Judge Kavanaugh.  Shapiro has been known to take a more humorous approach when delving into hard-hitting issues and hits the nail on the head:
On the day of the announcement of Judge Kavanaugh being nominated to replace Justice Kennedy, Shapiro made a prediction in a Fox Business interview that he will "be on the bench the first week of October."  Just a few days ago, Senate Majority Leader Mitch McConnell announced that hearings for Judge Kavanaugh will be "in late August or early September" and that Kavanaugh, whom he described as an "all-star," would be confirmed in time to be on the court for its new term on October 1.  

We look forward to hearing more about Judge Kavanaugh and the Senate confirmation process from one of the leading commentators on this issue this Wednesday.  To RSVP for this event, please click here

Saturday, July 14, 2018

Judge Brett Kavanaugh Respects First Amendment Rights; Skeptical of Campaign Finance Regulatory Overreach

One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.

The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:
His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . . 
Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties. 
In an opinion that preceded and foreshadowed the Citizens United and opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.
Judge Kavanaugh also wrote for the court in Independence Institute v. FEC in 2016.  The Institute for Free Speech also notes that when he has written upholding campaign finance regulations, he has done so with respect for the First Amendment and how government regulation can endanger the free speech rights of Americans, as he did in Bluman v. FEC, concerning the ban on foreign intervention in U.S. elections:
Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”
Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court.  As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation.  While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.

Thursday, July 12, 2018

The Other Side of Brett Kavanaugh: Mentor to Women

As we talked about previously, liberals are throwing every ridiculous charge imaginable at Brett Kavanaugh, hoping something sticks.  But while those efforts are failing, another side of Kavanaugh is coming out. 

As Amy Chua of the Yale Law School’s Clerkships Committee in an Op Ed entitled  Kavanaugh is a Mentor to Women”:

Judge Brett Kavanaugh’s jurisprudence will appropriately be dissected in the months ahead. I’d like to speak to a less well-known side of the Supreme Court nominee: his role as a mentor for young lawyers, particularly women. The qualities he exhibits with his clerks may provide important evidence about the kind of justice he would be.

To a person, they described his extraordinary mentorship. “When I accepted his offer to clerk,” one woman wrote, “I had no idea I was signing up for a lifelong mentor who feels an enduring sense of responsibility for each of his clerks.” Another said: “I can’t imagine making a career decision without his advice.” And another: “He’s been an incredible mentor to me despite the fact that I’m a left-of-center woman. He always takes into account my goals rather than giving generic advice.”

These days the press is full of stories about powerful men exploiting or abusing female employees. That makes it even more striking to hear Judge Kavanaugh’s female clerks speak of his decency and his role as a fierce champion of their careers.

If the judge is confirmed, my daughter will probably be looking for a different clerkship. But for my own daughter, there is no judge I would trust more than Brett Kavanaugh to be, in one former clerk’s words, “a teacher, advocate, and friend.”

The Washington Times has a similar story. 

Kavanaugh does not do these things for attention.  The Daily Caller caught him making good on a previous obligation without fanfare or press:

But amidst the chaos of the confirmation fight, Kavanaugh took a moment to do something incredibly human.

A passerby spotted the new Supreme Court nominee on her way home from work Wednesday night, and sent these pictures to The Daily Caller News Foundation. Kavanaugh was serving meals to the homeless outside Catholic Charities in downtown Washington, less than 48 hours after he was tapped to succeed Justice Anthony Kennedy. . . .

A fellow volunteer confirmed that the judge signed up for the event some time ago and chose to keep the date, developments in his professional life notwithstanding.

There are more of these stories out there from those who know him, but those who don’t will continue to cry and gnash their teeth.  How bad is the other side?  The satirical hastag #BrettKavanaughScandals is out there making fun of them.  The bottom line is Brett Kavanuagh is a good person who will make a great Supreme Court Justice. 

Wednesday, July 11, 2018

Schumer's Antics Hurt the Senate and Aren't Really About the Merits on Kavanuagh

The argument du jour for Democrats seems to be that Judge Brett Kavanaugh made some sort of deal with President Trump so Trump can’t be indicted. As Senate Democrat Minority Leader Chuck Schumer stated:
Senate Minority Leader Charles E. Schumer (D-N.Y.) said at a news conference Tuesday that Trump “chose the candidate who he thought would best protect him from the Mueller investigation.”
The Washington Post concluded this was false and stated so in pretty strong terms:
But Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed.
Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law. 
We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.
There is some question as to Senator Schumer’s motive for this and other similar antics.  Schumer may not even care about defeating the nomination of Kavanaugh but may be making this and other ridiculous claims to delay his confirmation.  As the Wall Street Journal Editorial Board points out.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful thought. But Mr. Schumer knows defeating the judge is a long shot, especially after Maine Senator Susan Collins made encouraging comments Tuesday about Judge Kavanaugh’s lower-court opinion on ObamaCare and his statement in 2006 that Roe v. Wade is a binding precedent.
In any case, what Mr. Schumer cares about more than defeating Donald Trump’s nominee is to be the next Majority Leader. Toward that end he wants to help his 10 incumbent Senators running in November to navigate between a political base that demands opposition to all things Trump and broader state electorates that might come to think that Judge Kavanaugh is an excellent nominee.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">The best way to do that is to postpone a confirmation vote beyond Nov. 6. That way Joe Donnelly in Indiana, Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia wouldn’t have to take a politically difficult vote before Election Day.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">They and other Democrats like Claire McCaskill in Missouri risk infuriating Democratic activists if they vote for a nominee who will be described day after day on MSNBC and CNN as a threat to every right they have. On the other hand, the Senators might motivate Trump voters to turn out against them if they oppose Judge Kavanaugh. So Mr. Schumer’s main priority is delay, and delay some more.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful consideration. The motive for Schumer’s attacks is to delay, not about defeating Kavanaugh. They are about politics and damaging the “world’s greatest deliberative body.” Ironically, Senators of his own party may pay the price.

Tuesday, July 10, 2018

Resources on Nomination of Judge Kavanaugh to Supreme Court

Yesterday evening, President Trump announced that D.C. Circuit Judge Brett Kavanaugh is his nominee to be the next Associate Justice on the U.S. Supreme Court.  During his speech in the nomination announcement, Judge Kavanaugh described his judicial philosophy:

Judge Kavanaugh's Jurisprudence

  • Introduction to Judge Kavanaugh's judicial record, by Ed Whelan
  • Wall Street Journal's Editorial Board: "A Justice with a Record"
  • Brett Kavanaugh Said Obamacare Was Unprecedented And Unlawful (Prof. Justin Walker)
  • Judge Kavanaugh: Interpretive Principles as a Way of Life (Prof. Jennifer Mascott)
  • Rejects Agency Overreach
    • Judge Kavanaugh’s Record Against the Administrative State (Ed Whelan)
    • Cabining the Chevron Doctrine the Kavanaugh Way (Prof. Jeffrey Pojanowski)
    • Judge Kavanaugh has overruled federal agency action 75 times.
    • In White Stallion Energy Center LLC v. EPA, Judge Kavanaugh rejected EPA’s efforts to impose massive emissions regulations without considering costs. In a 5-4 decision authored by Justice Scalia, the Supreme Court agreed.
    • In Coalition for Responsible Regulation v. EPA, Judge Kavanaugh argued in dissent from denial of rehearing en banc that the Obama EPA’s burdensome greenhouse gas regulations for power plants exceeded its authority and that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.”  In a decision authored by Justice Scalia, the Supreme Court agreed.
    • In EME Homer City Generation v. EPA, Judge Kavanaugh held that the Obama EPA’s crossstate air pollution rule was unlawful and imposed excessive regulatory burdens on the states.
  • Respects First Amendment Rights
    • Institute for Free Speech's analysis of Judge Kavanaugh's First Amendment jurisprudence: Part 1 (campaign finance), Part 2 (campaign finance), Part 3 (pro-speech opinion on protesters' rights), and Part 4 (pro-speech dissents in Communications Act cases)
    • In U.S. Telecom Ass’n v. FCC, Judge Kavanaugh dissented from denial of rehearing en banc in a case upholding net neutrality. Judge Kavanaugh argued that the net neutrality rule exceeded the FCC’s authority and violated the First Amendment, arguing that “the Government must keep its hands off the editorial decisions of Internet service providers.”
    • In Emily’s List v. FEC, Judge Kavanaugh struck down FEC regulations that limited independent political spending by non-profit organizations, ruling that the regulations violated the First Amendment “right of citizens to band together and pool their resources . . . in order to express their views about policy issues and candidates.”
  • Mandates Accountability for Independent Agencies
    • In PHH Corp. v. CFPB, Judge Kavanaugh concluded that the structure of the CFPB—whose single director wields massive power but cannot be removed by the President except for cause—impermissibly invades the President’s power to supervise the Executive Branch. He noted that independent agencies “pose a significant threat to individual liberty and to the constitutional system of separation of powers.”
    • In Free Enterprise Fund v. PCAOB, Judge Kavanaugh concluded that provisions of the Sarbanes-Oxley Act insulating the PCAOB from presidential control by making its members removable for cause only by the SEC violated the Constitution.  In a 5-4 opinion written by Chief Justice Roberts, the Supreme Court agreed.

Personal Details

Judge Kavanaugh is the single most qualified person in the country to serve on the Supreme Court. His credentials are impeccable. He currently sits on the D.C. Circuit—the “Second Highest Court in the Land”—and serves as the Samuel Williston Lecturer in Law at Harvard Law School. He graduated from Yale Law School and clerked for Justice Kennedy.

Judge Kavanaugh has a proven track record as the type of jurist that President Trump has promised to put on the Supreme Court. With over 300 published opinions, what you see is what you get: a judge who will apply the law as written and enforce the text, structure, and original understanding of the Constitution.

Judge Kavanaugh’s respect for people threatened by government overreach has demonstrated itself again and again, and he has often rejected attempts by the federal government to impose onerous regulations on private citizens.

Judge Kavanaugh is a true “judge’s judge.” He’s a thought-leader among his peers on the appellate courts and deeply respected by the Supreme Court. The Supreme Court has endorsed his opinions more than a dozen times, including Kavanaugh dissents that have become the law of the land. His opinions are regularly cited by courts across the country. Of his 48 clerks, 39 have gone on to clerk at the Supreme Court. And one of his clerks (Britt Grant) is even on the President’s list of potential Supreme Court nominees.

Judge Kavanaugh is active in his community. He coaches CYO (Catholic Youth Organization) basketball, acts as a reader at his church, serves meals to needy families, and tutors children at local elementary schools.

Reactions to This Excellent Nomination

I look forward to meeting with Judge Kavanaugh and to the Senate’s fair consideration of his nomination, beginning with the work of Chairman Grassley and the Judiciary Committee. This is an opportunity for Senators to put partisanship aside and consider his legal qualifications with the fairness, respect, and seriousness that a Supreme Court nomination ought to command. 
President Trump has made an excellent choice in nominating Judge Kavanaugh to the Supreme Court.  He has impressive credentials, and I look forward to meeting with him to further consider his qualifications and commitment to upholding our Constitution as it is written.  This nomination is one of the most important items that we will consider this year.  I am hopeful that Judge Kavanaugh’s confirmation process will be fair and timely.
Esteemed by his colleagues, faithful to the Constitution, a record of thoughtful decisions, and already confirmed for the DC Circuit; Brett Kavanaugh has the right stuff.
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. 

The RNLA looks forward to the Senate's careful consideration of Judge Kavanaugh's extensive record and prompt confirmation of this extremely qualified nominee.  While the Democrats were engaging in character assassination against the nominee before his name was known, they cannot attack Judge Kavanaugh's impeccable credentials.  

Follow the RNLA on this blog, Facebook, and Twitter for the latest news and analysis of Judge Kavanaugh's record and nomination.

(This post will be updated.  Last update: 7/10/2018 at 9:00 AM.)

Friday, July 6, 2018

Only Sure Thing on SCOTUS Monday Is a Democrat Meltdown

Next Monday night a future Supreme Court Justice will be revealed to the public at 9 p.m. While the rumors are it will be either: Amy Coney Barrett, Brett Kavanaugh or Raymond Kethledge, there is one thing we know for sure: Democrats will go ballistic. So before the good news on Monday, we thought we would knock down some of the Democrats' attacks against any Supreme Court nominee from a Republican President.

1.  The nominee must pledge to a view on Roe v. Wade in order to be confirmed.  We will let liberal icon Justice Ruth Bader Ginsburg handle this one:
“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”(U.S. Senate Judiciary Committee, Hearing, 7/20/1993)
 “There is a grand tradition that I support that you can't ask a judge who’s nominated for a -- or a potential judge who is nominated -- for a judgeship about a specific case that might come before them.” (Sen. Schumer, Press Conference, 2/7/2017)
2. But if you want to talk about issues, even there Democrats are not telling the truth.  Let's talk about the left's efforts to rally their base by saying Obamacare will be repealed:

DEMOCRATS: President Trump’s nominee could overturn the Affordable Care Act.
REALITY: Justice Anthony Kennedy voted to strike down the Affordable Care Act. Even if the same case were to come before the Court, and Justice Kennedy’s replacement voted the same way, the law would still be upheld, because the same five-Justice majority that upheld the law is still on the Court.

3. Led by Senator Schumer, Democrats are saying the nominee should not be considered in an election year after Republican Leader McConnell did not schedule a vote in 2016 after Justice Scalia passed.  From the Washington Post:
But here’s the rub: the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year. Here’s Senate Majority Leader Mitch McConnell on ABC’s “This Week” on March 20, 2016:“The American people are in the middle of choosing who the next president is going to be. And that next president ought to have this appointment, which will affect the Supreme Court, for probably a quarter of a century.” . . .
Bottom line: it’s pretty clear the debate in 2016 revolved around nominations made in a presidential election year. Democrats are simply spinning a false narrative.
The Democrats are going to attack any nominee from President Trump. The attacks will not be based on the nominee’s record or even well-grounded in reality. President Trump’s list is outstanding and any nominee from it would be committed to the rule of law. RNLA will be working to help win the public argument to confirm the nominee in the coming weeks.