Today, Judge Kavanaugh spoke at the Fifth Judicial Circuit Conference in Austin. I was pleased that the meeting was open to the media and saw several journalists in the room. The Washington Post has an early report.
Chief Judge Richman interviewed Judge Kavanaugh. It was a very engaging exchange. I thought Richman masterfully showed the personal side of the judge.There are a lot of questions about Judge Kavanaugh’s daughters, and we learn he took them Both Taylor Swift concert and Caitlin Clark basketball game.
Normally this type of speech regurgitates the same clichés, but Judge Kavanaugh made some points that he had made before (I can’t remember).
First, Judge Kavanaugh addressed the issue of declining certificate appropriations. There will be approximately 60 merit decisions this semester. Kavanaugh said his ideal number would be around 75, noting that he has been pointing out cases he would approve. I applaud this approach. The cases are mostly low-profile, but they show that Kavanaugh is paying close attention to petitions and indicate to litigants which cases may be funded in the future. Kavanaugh also said it was unfair to compare today’s courts with those of the early 1990s, when about 150 certificates were granted annually. Kavanaugh reminds us that when Justices Brennan and Marshall were on the Supreme Court, there were far more certified grants for capital punishment and CrimPro cases.
One thing Kavanaugh didn’t mention is something I’ve been thinking about a lot lately, and that’s “Connection Three.” According to this tradition, if three judges are willing to grant certificates, a fourth judge provides a ceremonial fourth vote – the so-called “joint trio.” I remember that Judge O’Connor often proposed “three in a row”. This is the number of cases that have approved the death penalty: Justices Brennan, Blackmun and Marshall will vote in favor of the death penalty, giving them a three-way victory.In this court we routinely Seeing that there were three cases against the rejection shows a rude fourth vote. By my count, Judge Barrett had only one dissent to the denial—she seemed to be the judge most hesitant to grant certification. I don’t know if “Three Companies” is dead and buried, but it may be a relic from the past.
Secondly, Judge Kavanaugh spoke at the emergency meeting and paid tribute to Professor Vladek who was present at the meeting.Kavanaugh elaborated on his views during the meeting labrador v. poe, I’ve written about it before. Kavanaugh specifically explained that the primary factor in these emergencies is the likelihood of success on the merits, not the balance of harm, which is usually the balance.He mentioned that he agreed with Judge Barrett Doss v. Millswhich focused on the value of the certificate, but Kavanaugh downplayed this factor, as he did in labrador retriever. I think Kavanaugh is absolutely right. That message was heard loud and clear by all the 5th Circuit judges in the room.
Third, Justice Kavanaugh talked about the process of drafting opinions. Kavanaugh explained that one of the most difficult tasks in a meeting is determining whether there are five votes to support a majority opinion — though he always favors unanimity. It is known that in conference, each justice can speak at least once, and then anyone can speak twice, starting with the chief justice. But after everyone spoke once, it became a free-for-all, Kavanaugh said. Kavanaugh mentioned that the chief will visit people just like he would at school. Next comes the opinion writing process. Kavanaugh explained that when you see adverbs like “usually” or “generally” in an opinion, those words are necessary to hold a majority opinion. Ditto’s footnote seems to undermine everything the majority opinion says. Sometimes, providing a clearer solution will have to wait for another case, Kavanaugh said.
Fourth, Judge Kavanaugh delivered oral arguments in court. During his first two terms, the court followed the traditional one-hour limit. Kavanaugh said he became frustrated when he asked one of a series of questions and was interrupted by another judge. Cavanaugh said he likes the new format, including the round-robin schedule. This allows him to answer a series of questions from start to finish. He was also pleased that Judge Thomas now had the opportunity to ask questions. Cavanaugh mentioned that not everyone is happy with the new format. He calls Paul Clement one such skeptic. In contrast, Lisa Bratt liked the format, Cavanaugh said. (Clement and Blatt will review SCOTUS at Saturday morning’s meeting).
Justice Kavanaugh also seemed quite relaxed and open. He had a great time. His first five years in office were chaotic. From confirmation hearings to the coronavirus pandemic to assassination attempts and everything in between. But he looked relaxed now and stayed to shake hands and take photos with everyone. It is sometimes said that it takes five years for a new justice to find his or her stride. I think Kavanaugh is hitting his stride now. I praised some of his points this year. Of course I would reserve judgment until the end of June, but this is by far the most effective term of his court.
