Who’s the “prominent” Republican? Flake? McCain?
1. It would be nice to actually see the “concurrence” opinion.
2. It’s my understanding this was about collection only. Actually getting into the data was different thing altogether.
Age: 49
Education: Boston College; University of California, Berkeley Law
Clerkships: Arthur Spiegel (Southern District of Ohio); Nathaniel Jones (6th Circuit)
Amul Thapar was Trump’s second judicial nominee following the appointment of Neil Gorsuch to the Supreme Court. Last May, the Senate confirmed Thapar to the 6th Circuit on party lines, by a vote of 52-44 (four Democrats abstained from voting).
Before ascending to the appeals court, he spent nearly a decade as a trial judge on the Eastern District of Kentucky. President George W. Bush nominated Thapar to that judgeship in May 2007, and he was confirmed by a voice vote in December 2007, making him the first South Asian-American federal judge and one of the youngest in the entire federal judiciary. He also volunteered to hear immigration cases during a judicial emergency in the Southern District of Texas.
Before joining the federal court, he served as an assistant U.S. attorney in the District of Columbia and in the Southern District of Ohio and later as the U.S. attorney for the Eastern District of Kentucky. He also worked in private practice in Washington, D.C., and Cincinnati, Ohio, and served as general counsel for Equalfooting.com, a business-to-business online marketplace.
In a recent Michigan Law Review article, Thapar and attorney Benjamin Beaton reviewed former 7th Circuit Judge Richard Posner’s new book in which Posner recommends abandoning a formalist approach in which judges rely on historical meaning, established interpretive tools, and precedent in favor of a more consequentialist, more overtly outcome-driven approach.
Thapar offers a robust defense of textualism, arguing that Posner’s approach would prove unworkable and unpredictable and would turn judges into policymakers, thereby violating separation of powers. He concluded the article:
Because judges are human, formalism is in a sense aspirational. As Justice Scalia admitted, ‘the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely.’ But this is no basis for rejecting a formal approach to interpreting legal texts; it only heightens the need to incorporate limits, rather than license, into the judicial system. That textualism will sometimes fail to constrain judges is no reason to surrender to other interpretive approaches that, by their very design, impose fewer and less effective constraints.
Although he has only been an appeals court judge for little over a year, he wrote 36 appeals court opinions when he sat on the 6th and 11th circuits by designation, and he’s written 10 published opinions since his confirmation last year. As a district court judge, Thapar published 631 orders—only 11 of which were reversed on appeal.
Thapar appears to be a committed textualist. In Freeland v. Liberty Mut. Fire Ins. Co. (2011), Thapar remanded a diversity case back to state court because it was “exactly one penny short of the jurisdictional minimum of the federal courts.” While admitting that this result was “painfully inefficient,” he said that “[t]he words [amount] ‘in controversy’ have to mean something” and that the statute’s text left no other choice.
In Duncan v. Muzyn (2018), a case dealing with how much notice the Tennessee Valley Authority’s pension board must give members before voting to approve an amendment to the plan, the board argued that it should be granted deference because its rules are ambiguous. In declining to defer to the board’s interpretation, Thapar wrote:
Simply calling something ambiguous does not make it so. Indeed, determining the point at which ‘ambiguousness constitutes an ambiguity’ is no easy task. Contract language is not ambiguous merely because the parties interpret it differently … Rather, where, as here, one interpretation far better accounts for the language at issue, the language is not ambiguous. In terms of the First Amendment, Thapar joined the majority opinion (along with Kethledge) in Bormuth v. Jackson holding that a county board’s practice of opening public meetings with a prayer by a county commissioner did not violate the Establishment Clause.
And in one of his more controversial decisions on the district court, Thapar ruled in Winter v. Wolnitzek (2016) that a number of Kentucky’s judicial conduct rules prohibiting judges from making campaign contributions to others, campaigning as a member of a political organization, and making speeches for or against political organizations were unconstitutional.
Thapar explained:
There is simply no difference between ‘saying’ that one supports an organization by using words and ‘saying’ that one supports an organization by donating money. Put more plainly, if a candidate can speak the words ‘I support the Democratic Party,’ then he must likewise be allowed to put his money where his mouth is. The 6th Circuit praised Thapar’s “thorough and thoughtful opinion,” while overruling the portion of his opinion regarding campaign contributions.
Although he spent much of his career as a federal prosecutor, as a district court judge, Thapar has on occasion ruled in favor of criminal defendants. For example, in U.S. v. Sydnor (2017), Thapar excluded inculpatory statements made by the accused that were obtained before he was given his Miranda warnings, and in U.S. v. Lee (2012), Thapar suppressed evidence that was obtained after the police tracked the defendant using a GPS tracking device without first obtaining a warrant.
And as an appellate judge, he wrote an opinion in United States v. Perkins (2018), affirming the trial judge’s motion to suppress evidence police obtained in a drug investigation based on an anticipatory warrant where the triggering event never happened. He wrote that the government’s interpretation (which made the triggering event irrelevant to the warrant) “lacks common sense,” “runs afoul of the Fourth Amendment,” and is not simply a “hypertechnicality” the court should overlook.
Of the judges Trump has appointed so far, Thapar has the most extensive record of judicial service, covering a range of issues from the criminal justice system to the First Amendment. He also has close ties to Senate Majority Leader Mitch McConnell, R-Ky., and rumor has it Trump interviewed Thapar for the Supreme Court seat that ultimately went to Gorsuch.
>https://www.heritage.org/courts/commentary/meet-the-6-stellar-judges-leading-the-pack-trumps-supreme-court-short-list
One conclusion is that if Kavanaugh headed the Foster portion of the Ken Starr investigation (as reported in American Thinker), then he can be trusted to protect the powerful and shaft the people, when push comes to shove.
Just another Roberts, IMO.
Another article raised concerns about freedom of religion issues with Kavanagh.
We don’t need a GOPe Deep State Bushie for the SCOTUS.
Pick a non-GOPe non-Bushie please. There are hundreds of them.