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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Trump supreme court pick: favourites emerge in rush to name nominee

Trump, SCOTUS
White House staff scramble to vet president’s ‘incredible’ conservative candidates ahead of Monday announcement

Donald Trump has interviewed seven candidates to replace Anthony Kennedy, the retiring supreme court justice, leaving White House staff members scrambling to complete a vetting process in time for the planned announcement of the president’s pick on Monday 9 July.

The four candidates interviewed on Monday, first reported by the Above the Law blog, are all federal appeals court judges whose names appear on a list of 25 supreme court prospects published last year by the White House. Some were confirmed by the Senate for their federal posts as recently as last year.

White House spokesman Raj Shah said Trump spoke to three more prospective candidates on Tuesday, but declined to name them.

Judges on the long-list were selected by Trump and the White House counsel Don McGahn on the strength of their conservative credentials, which appear in all cases to include an opposition to abortion rights and skepticism over same-sex marriage and other LGBT rights. The Federalist Society, a national society of conservative lawyers, has been instrumental to the process.

Before his selection last year of Neil Gorsuch to replace the deceased justice Antonin Scalia, Trump interviewed multiple candidates including Thomas M Hardiman, who serves on the third circuit court of appeals alongside Trump’s sister, Maryanne Trump Barry.

Trump is thought now to be looking for a candidate whose conservative credentials will please his political base and who is young enough to serve on the high court for decades.

In the Oval Office on Monday, he said the “four potential justices” he met that morning were “incredible people in so many different ways”.

Amy Coney Barrett, 46 and from Indiana, has emerged as a leading contender. A former law professor at the University of Notre Dame, she is an outspoken Roman Catholic and a mother of seven.

Trump nominated her for her current post, on the US court of appeals for the seventh circuit, in 2017. At her confirmation hearings, the Democratic senator Dianne Feinstein expressed concern that Barrett, who had suggested that Catholic justices might have to recuse themselves from death penalty cases, would be guided by church law instead of the constitution.

“The dogma lives loudly within you and that’s a concern,” Feinstein said, “when you come to big issues that large numbers of people have fought for for years in this country.”

Barrett replied: “If you’re asking whether I take my faith seriously, and I’m a faithful Catholic, I am, although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

Raymond Kethledge, 51 and from Michigan, is a favorite of conservative activists for his stark rulings in so-called “religious freedom” cases allowing business to discriminate based on religious convictions; in second amendment cases denying attempts to restrict access to guns; and in the lethal injection protocol for the death penalty in the state of Ohio.

Regarding the last point, he wrote that a district court’s findings provided “little support for its conclusion that Ohio’s three-drug protocol creates an unconstitutional risk of pain”.

A former clerk for Kennedy and a graduate of University of Michigan law school, Kethledge is a judge on the US court of appeals for the sixth circuit.

The 53-year-old Brett Kavanaugh, from Maryland, is the most explicitly partisan candidate and would be an incendiary pick. As a top lieutenant to the then independent counsel Kenneth Starr, he helped draft the Starr Report, detailing Bill Clinton’s relationship with Monica Lewinsky and leading to the impeachment of the Democratic president.

Kavanaugh then served in the George W Bush White House, organizing the effort to fill federal court vacancies with conservative judges. In 2006, Bush appointed Kavanaugh to the US court of appeals for the DC circuit.

“I have deep concerns about this nominee,” the Democratic senator Chuck Schumer, now minority leader, said at the time. “If there was a political fight that needed a political foot soldier in the last decade, Brett Kavanaugh was probably there.”

The other judge interviewed by Trump on Monday was Amul Thapar, who is 49 and from Kentucky. Also nterviewed by Trump during the process that led to the nomination and appointment of Gorsuch, he is the preferred choice of the Senate majority leader and fellow Kentuckian Mitch McConnell.

The son of Indian American parents, Thapar was an assistant US attorney in Ohio and federal prosecutor for the eastern district of Kentucky. Like Kethledge, he is now is a judge on the US court of appeals for the sixth circuit.

“Thapar’s tenure as a prosecutor may have influenced his approach to criminal law cases, in which he has often, but not always, come out on the side of the government,” Edith Roberts, an editor at Scotusblog, wrote of the potential nominee.

Source: The Guardian, Tom McCarthy, July 3, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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