Brett Kavanaugh – Opening Arguments

February 10, 2019February 12, 2019

OA251.5 Abortion Special – More on June Medical Services v. Gee

This rapid-response bonus episode tackles the Supreme Court’s late-breaking stay of the 5th Circuit’s opinion in June Medical Services v. Gee, with a particular emphasis on dissecting Justice Brett Kavanaugh’s dissent. What does it all mean? Listen and find out!

We have also continued the episode with a deep dive into res judicata and the truly ominous implications of Kavanaugh’s dissent at our Patreon page for supporters of the show at any level.

Show Notes & Links

Check out Episodes OA: 249 “Overturning Roe v. Wade Starts Today” and OA 251 for reference to our past discussion on this cases.
Click here to read the Court’s granting of the stay (which includes Kavanaugh’s dissent), and here for the Supreme Court’s docket in June Medical Services v. Gee.
This is the reply brief filed by the petitioners.
Here is the prior 2016 Supreme Court decision in Whole Woman’s Health v. Hellerstedt.

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For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki

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December 31, 2018January 1, 2019

OA240: Libertarianism is Still Bad & You Should Still Feel Bad

Today’s special, hangover-free New Years’ episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism. Strap in; it’s been an interesting year!

We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22. Is there a robust theory of property rights that serves as a side-constraint on government action? You’ll have to listen and find out! (Hint: no.)

After that, Andrew further explains the “Are You A Cop?”-style segment from Episode 238 regarding whether Brett Kavanaugh “voted with the liberals” in an abortion case. (Hint: no.) You’ll figure out all you need to know about the Supreme Court’s denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood… as well as getting a deep dive into Clarence Thomas’s dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a!

After all that, it’s time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

Check out Matt & Mattingly’s Ice Cream Social podcast!
We first discussed libertarianism back in Episode 22.
You can click here to read Clarence Thomas’s blistering (and inaccurate) dissent from the Court’s denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show.

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For show-related questions, check out the Opening Arguments Wiki

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October 11, 2018October 12, 2018

OA217: Can Ethics Complaints Take Down Kavanaugh?

Today’s Rapid Response Friday follows up on the State of Florida and… sadly… returns one last time to the story of Brett Kavanaugh and the ethics complaints lodged against him and referred to the Tenth Circuit. Oh, and we give you real stuff you can do to make a positive difference! You have to listen!

We begin with a follow-up to Tuesday’s episode where we break some news regarding the Democratic Party’s lawsuit in Florida to extend registration for voting in the 2018 midterms before checking in on the Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.

Then it’s time to tackle the ethics complaints filed against Brett Kavanaugh and referred out by Supreme Court Chief Justice John Roberts to the Court of Appeals for the Tenth Circuit.

Finally, we end with an all new Thomas Takes The Bar Exam #97 regarding the tort of negligent misrepresentation. Thomas needs to go 4-for-4… can he do it? You’ll have to listen and find out! And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

This episode is sponsored by Audible! Go to audible.com/lawpod or text lawpod to 500500 for the 30-day trial and free audiobook!

Click here to read the court’s denial of the TRO filed by the Democratic Party’s in Florida to extend registration for voting in the 2018 midterms.
And click here to read the newly-filed Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.
We first discussed the Code of Judicial Ethics on Episode 193.
This is the Roberts letter referring the Kavanaugh complaints to the Court of Appeals for the Tenth Circuit.
Click here to read the Rules of Judicial Conduct and Judicial Disability, with proposed changes.
The law we discussed is 28 U.S.C. § 351 et seq.
WHAT YOU CAN DO! Click here to comment on the proposed changes to the Rules of Judicial Conduct and Judicial Disability.
And if you want to apply to work for Fix The Court, check out their notice here.

Support us on Patreon at: patreon.com/law

Facebook: https://www.facebook.com/openargs/

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For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

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September 26, 2018September 27, 2018

OA213: Rachel Mitchell to Cross-Examine Dr. Ford at Kavanaugh Hearings

Today’s Rapid Response Friday tackles (ugh) the ongoing Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford’s allegations, before segueing into an interesting question from super-listener Teresa Gomez. If you want to know everything about Rachel Mitchell (and so much more!) — well, you’ve come to the right place!

We begin with some good news about QED in Manchester, UK and your ability to hang out with Thomas!

After that, it’s time to figure out what’s going on with Kavanaugh. We examine (1) the political landscape; (2) the status of Blumenthal v. Nat’l Archives, Case No. 18-02143-RDM seeking FOIA information from the National Archives and the CIA; (3) the unprecedented appointment of career sex crimes prosecutor Rachel Mitchell to handle the questioning of Dr. Ford and Kavanaugh; (4) the strange circumstances surrounding Michael Avenatti’s claim to represent additional women allegedly harrassed by Kavanaugh; and (5) what Dianne Feinstein wants. Phew!

After that, we somehow have time to answer a fascinating question about pro se litigants giving testimony in court!

Finally, we end with an all new Thomas Takes The Bar Exam #95 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu’ll have to listen and find out! And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
On politics: here’s the 538 polling data that Kavanaugh becgan historically unpopular and is getting worse. And this is the (overblown) HuffPo story on the Judicial Crisis Network.
Check out the docket entries in the Blumenthal case!
Rachel Mitchell has no Wikipedia entry (yet!), but was profiled in the National Law Journal and gave this interview to the “Foundations Baptist Fellowship International.” Bill Montgomery’s endorsement was reported in this Arizona Central story.
Avenatti’s client, Julie Swetnick, signed an affidavit under penalties of perjury that you can read here. We detailed Avenatti’s ethical lapses on Episode 181.
Check out Sen. Feinstein’s letter on the Kavanaugh hearings.
Finally, in answering Teresa’s question, we relied on U.S. v. Nivica, 887 F.2d 1110 (1st Cir. 1989)… scroll down to part C!

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September 20, 2018September 21, 2018

OA211: Manafort Flips (and more on Kavanaugh)

Today’s Rapid Response Friday tackles (1) Paul Manafort’s plea deal and (2) the surprise resumption of the Senate Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford’s allegations, which are discussed in depth on Episode 158 of Serious Inquiries Only. What should you look for during Monday’s hearings? Listen and find out!

We begin with an acknowledgment of the story sent to us by several hundred thousand listeners regarding crazy person Cody Wilson.

After that, it’s time for an important Andrew Was Wrong: Paul Manafort did not plea over the weekend; he pled guilty pretty much the second we stopped recording! We break down everything there is to know about his deal, including the strong incentives Manafort has not only to cooperate but to roll over and expose his belly to Mueller’s team in hopes of being thrown a bone or two. Oh, and we time-travel back to the 19th century to answer a super-interesting listener question on asset forfeiture!

Then, it’s time to discuss Kavanaugh again, in light of the troubling accusations made by Dr. Ford and other issues, including the Democratic Senators’s FOIA lawsuit compelling the production of Kavanaugh’s documents that are being withheld while the Republicans try and cram through his nomination. It’s not a pretty segment, but we think you’ll walk away equipped to understand Monday’s hearings.

After all that, we end with an all new Thomas Takes The Bar Exam #94 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu’ll have to listen and find out! And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27; click here for the Facebook RSVP link if you’d like to attend!

Show Notes & Links

For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
You should really read through Mr. Ostrich-Jacket’s plea deal for yourself. (And yes, that’s the show graphic.) This is the TPM article Andrew criticizes; as you’ll see from the Sentencing Table, Manafort faces 210-262 (or more) months in prison.
Here’s the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate.
Click here to read Blumenthal v. US Nat’l Archives, the FOIA complaint filed by the Senate Judiciary Democrats, and here to read the Motion for TRO (which does not yet have an accompanying Memorandum). FOIA is 5 U.S.C. § 552.
Finally, this is the text of the Sanai letter describing Alex Kozinski and seeking an investigation into Kavanaugh’s knowledge and testimony.

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For show-related questions, check out the Opening Arguments Wiki

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September 13, 2018September 14, 2018

OA209: Kavanaugh’s Confirmation

Today’s Rapid Response Friday is all about the conclusion of the Supreme Court Confirmation Hearings for Brett Kavanaugh. What did we learn? What’s still outstanding? Are liberals really guilty of trying to bribe Susan Collins? And, most importantly: what can we do about any of this?? Listen and find out!

We begin, however, with an important Andrew Was Wrong.

After that, we delve into all the week’s issues surrounding the Kavanaugh confirmation hearings, including: (1) the status of Kavanaugh’s nomination; (2) whether liberal crowdfunding efforts really count as efforts to “bribe” Republican Sen. Susan Collins; (3) an in-depth look at Kavanaugh’s written answers to the Senate Judiciary Committee; (4) a shockingly misleading question from Opening Arguments’s good friend, Sen. Ted Cruz; and finally (5) a preview of next Tuesday’s discussion of a weird case called Glucksburg. Phew!

After all that, we end with an all new Thomas Takes The Bar Exam #93 regarding double jeopardy. Did Thomas learn enough from the Ashley Judd Law’d Awful Movie of the same name?? We’ll find out! And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri’s Pizza. Be there and be square!

Show Notes & Links

This is the (ugh) Newsmax exclusive about Collins’s accusations of “bribery;” you can click here to see what Ad Fontes thinks about Newsmax as an organization. The bribery law, of course, is 18 U.S.C. § 201., and the court decision we discuss is McDonnell v. U.S., 136 U.S. 2355 (2016).
Here’s the late-breaking Feinstein letter.
We strongly recommend reading Kavanaugh’s answers. If you can stomach his misuse of the word “precedent” every few lines.
This is the transcript of Ted Cruz’s “Washington Generals” questions of Kavanaugh, and if you want a head start on next week, you can start reading Washington v. Glucksberg, 521 U.S. 702 (1997).

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For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

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September 6, 2018September 7, 2018

OA207: Brett Kavanaugh’s Confirmation Hearings

Today’s Rapid Response Friday tackles the ongoing Supreme Court Confirmation Hearings for Brett Kavanaugh — including an analysis of documents that broke literally after we recorded the show! Find out if any of this can slow down Kavanaugh’s presumed path the SCOTUS.

We begin, however, with listener feedback on our rather controversial Episode 205 (with Andrew Seidel) as well as follow-up emails regarding 3-D guns and our contributions to SwingLeft.

After that, we break down the critical documents leaked today by Sen. Cory Booker (D-N.J.) that show 1) Kavanaugh’s nakedly partisan approach to the court; 2) Kavanaugh’s nonexistent view of the value of precedent when it comes to Roe v. Wade; and 3) possible perjury. Is this a big deal? YES. Will it move the needle? We’ll see.

After that, we return to Yodel Mountain to discuss Paul Manafort’s impending DC trial and the somewhat-overlooked plea by W. Samuel Patten. Who’s that? Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #92 regarding impeaching the testimony of a gang member at trial. If you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Thomas was recently the guest masochist on this week’s God Awful Movies, reviewing “New World Order.” It’s hilarious — don’t miss it! And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

Here are the Kavanaugh email and Kavanaugh email 2 documents discussed during the main segment. For more Kavanaugh document fun, check out this comprehensive New York Times article.
This is W. Samuel Patten’s Criminal Information, to which he pled guilty, and here is the Statement of the Offense, which explains the connection to the Trump campaign and White House.
Finally, this is the late-breaking document showing possible perjury.

Support us on Patreon at: patreon.com/law

Facebook: https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

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July 12, 2018July 13, 2018

OA191: Fact and Fiction About Brett Kavanaugh

Today’s Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump’s next nominee to the Supreme Court (but seriously, we called that right, y’all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court.

In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible — go check it out! It’s amazing!

After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew’s inability to pronounce locations of things.

The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can’t be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy’s retirement; and (5) the notion of “packing the Court” in 2020. Phew!

Next, Andrew gives us an eight-second sneak peek at a court’s refusal to permit the Trump administration to modify the Flores settlement and why that’s good news.

Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz.
You should definitely read Kavanaugh’s 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review.
This is the Yale Open letter.
This is the dreadful Ken Levy article in The Hill that Andrew debunks.
These are the actual Senate Rules, and remember that we broke down the “nuclear option” way back in Episode 59.
On Anthony Kennedy’s negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129.
As homework for next week, read the Court’s order denying the Trump Administration’s request to modify the Flores settlement, which we first covered in Episode 184.
Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki!

Support us on Patreon at: patreon.com/law

Facebook: https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

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July 5, 2018July 5, 2018

OA189: Supreme Court Justice Brett Kavanaugh

Today’s Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump’s next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit.

We discuss:

Why it’s likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
Kavanaugh’s view of the First Amendment’s establishment clause and the future of Lemon v. Kurtzman
Kavanaugh’s views on abortion
How Kavanaugh differs (and how he doesn’t!) from Neil Gorsuch when it comes to Chevron deference
The weird conservative hit squad out to get Kavanaugh
And much, much more!

After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun. If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links