Confirmation Hearings – Opening Arguments

January 14, 2019January 15, 2019

OA244: Clarence Thomas vs. Thurgood Marshall

Today’s episode features a little more about Corey Robin, including the argument addressed on the show that criticisms of Clarence Thomas’s competence are a racist echo of similar claims made against Thurgood Marshall. Find out why Andrew made the mistake he did in Episode 242, and also why Andrew still stands behind his answer to that question.

We begin with Robin, winding our way from his blog posts to the jurisprudence of two of Andrew’s heroes, Laurence Tribe and Ronald Dworkin! Ultimately, you’ll learn why Andrew continues to defend the proposition that attacks on Thomas’s competence are not inherently racist.

After that, it’s time for some behind-the-scenes news about Attorney General nominee William Barr just in time for his confirmation hearings. What company does he keep when it comes to interpreting the Founding Fathers? Listen and find out! (Hint: this isn’t good.)

Finally, it’s time for the answer to Thomas Takes The Bar Exam #108 regarding real property. 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

We first discussed Robin in Episode 242 as part of a listener question. You can click here to read his Tweet criticizing us for engaging in “tribalism” and playing identity politics.
We discuss two Robin blog posts in depth: (a) “Everything is in the Hands of Heaven Except the Fear of Heaven”, and (b) “The Scandal of Democracy”
It was, in fact, Elena Kagan who said “we’re all textualists now” in 2015.
Click here to check out Tribe’s 2008 book, The Invisible Constitution, which openly contests originalism (and directly engages Scalia in particular).
You should also check out the Ronald Dworkin speech that was turned into an article in the Fordham Law Review.
This is the 2001 Keith Whittington law review article that credits Robin with an assist. This is Whittington’s page at the Federalist Society.
We engage with this tweet from Robin listing four supposed examples of intellectual laziness leveled against Thurgood Marshall.
Some Thurgood Marshall links: (a) his confirmation as reported by the New York Times; and (b) this lovely retrospective on Thomas’s career penned by Juan Williams for the Washington Post.
Finally, you can read some more stuff on Clarence Thomas: (a) the 2014 rates of agreement among Supreme Court justices; and (b) this anecdote reported by attorney Matt Howell.
If you have HeinOnline, you can read the Mark Tushnet law review article in the Georgetown Law Review we discuss on the show. (Otherwise, you’re stuck reading the first page only.)

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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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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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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).

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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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