Trump Narrows His List for Supreme Court Justice Replacement

It appears President Trump is close to naming former Justice Antonin Scalia’s replacement to the U.S. Supreme Court.

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After delivering a list of 21 possible candidates during his campaign, sources close to the selection process said that two names are left in the running, Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania. Some sources report thatĀ  Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit may still be under consideration.

Judge Hardiman has maintained a consistently conservative stance on “hot button issues,” most notably in gun cases. Judge Hardiman has shown a robust view of the Second Amendment. Fun Fact: Hardiman has a direct connection to the President as he serves on the same court as Trump’s sister, Maryanne Trump Barry.

Read more about Judge Hardiman here.

The other main candidate left, Neil Gorsuch, was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush in 2006. Many feel that this appointment, along with his similarities to Scalia in terms of legal writing, sets him up well to be appointed to the SCOTUS by a Republican president. His defense of religious liberties in Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Age v. Burwell as well as his pro-life views regarding assisted suicideĀ  help mark him as a “solid conservative.” Cases such as United States v. Games-Perez have given his opportunity to use his extensive knowledge and application of legislative history.

Read more about Judge Gorsuch here.

Judge Pryor’s name has been thrown around for Supreme Court vacancies every since he ascended to the federal bench in 2003. One of his most well-known actions as attorney general for Alabama was removing Alabama Chief Justice Roy Moore after Moore refused to follow a federal court order to remove the Ten Commandments monument from the state’s Supreme Court building. Judge Pryor has spoken out against Roe v. Wade, and drawn much criticism for his position on abortion. He’s consistently ruled in the government’s favor in criminal cases. Although very conservative, Judge Pryor has voted to allow a transgender plaintiff to sue a State of Georgia office for firing her for her gender transition. Judge Pryor has also frequently voted for religious freedom.

Read more about Judge Pryor here.

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Trump Narrows His List for Supreme Court Justice Replacement

Alabama Criminal Law Round-Up January 10th

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Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

Alabama Criminal Law Round-Up January 10th

Alabama Death-Row Inmates Ask for SCOTUS Review

Low wide angle view of the U.S. Supreme Court

Today, the US Supreme Court is considering three cert petitions involving important questions challenging the Alabama capital sentencing scheme. Two challenges involve the Supreme Court’s 2016 ruling in Hurst v. Florida, which held that any fact necessary to expose a defendant to the death penalty must be found by a jury, not a judge.

Two cert petitions involve Tommy Arthur, a man who’s been on Alabama’s death row for 30 years. One petition is a Hurst-based challenge. In that petition, Arthur (1) makes a general challenge to Alabama’s scheme under Hurst; (2) argues Hurst requires a unanimous jury vote for death (his vote for death was 11-1); and (3) claims Hurst applies retroactively.

Arthur’s second petition raises Eighth Amendment claims against Alabama’s execution protocol.

The Court is also considering a cert petition from Jerry Bohannon. While I do not have a copy of Bohannon’s cert petition, I would imagine he is raising claims similar to those he presented to the Alabama Supreme Court in his case that was decided in September 2016. There, the Court rejected a number of Hurst claims, most notably Bohannon’s challenge that Hurst requires a jury to decide the weight of aggravating factors against mitigating factors.

In Alabama, a judge makes the final sentencing determination and must decide that the aggravating factors of a case outweigh the mitigating factors in order to sentence a defendant to death. Under Alabama law (which is grounded in pre-Aprendi/Ring SCOTUS decisions), the weighing of aggravators versus mitigators is purely a job for the judge, not the jury. A fairly clear and long line of cases has held that the Sixth Amendment does not require a jury to conduct this weighing. Hurst calls this thinking into question.

I’m bearish on either case’s chance. I think Arthur has a better shot on the Eighth Amendment issue than the Sixth Amendment issue, but I don’t think he’d have the votes to do anything. Bohannon’s weighing claim is somewhat blunted by the fact that the jury recommended death by a vote of 11-1, so whatever error he claims might be harmless. Moreover, I don’t believe he raised a claim that Hurst requires juror unanimity, which probably would have helped. The Court should wait on a better vehicle – an override case -to take that issue up.

However, should the Court take up Bohannon’s case on the weighing issue, I think there’s a good chance the Court would rule in Bohannon’s favor and hold that the Sixth Amendment requires a jury to determine the weight of aggravators versus mitigators. I think the votes are there. Ginsburg authored Ring, Sotomayor wrote a scathing dissent in the denial of cert in Woodward v. AL, a case that challenged override in the pre-Hurst era, Breyer believes the Eighth Amendment requires a jury to find everything (even if he doesn’t like Ring) and joined Sotomayor’s dissent in Woodward, and Kagan, Kennedy, Thomas and Roberts were in the majority in Hurst.

Even if the Court doesn’t take up one of these two cases, I believe the writing is on the wall that the Court will be forced to take a closer look at Alabama’s capital sentencing scheme either this term or next.

Alabama Death-Row Inmates Ask for SCOTUS Review