What You Should Know About Neil Gorsuch, Trump Reelection Groups Raised Millions in December, CNN Editor Sues Over Immigration Order: A.M. Links

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Is Neil Gorsuch ‘Conservative’ in a Good Way?

Last night my inbox was filled with extravagant praise and harsh denunciations of Neil Gorsuch, President Trump’s choice to replace the late Supreme Court Justice Antonin Scalia. With few exceptions, the judgments broke predictably along partisan and ideological lines. Conservatives think Gorsuch is “a brilliant choice,” “an unyielding defender of the Constitution,” “a distinguished, exceptionally qualified, and widely respected jurist” who “understands what it means to protect the constitutional freedoms afforded to all Americans.” Progressives say he is “a disaster for women,” “an extremist judge intent on overturning basic, well-established Supreme Court precedents,” an “unacceptable nominee” who will “rubber stamp Trump’s assaults on Americans’ freedoms,” an “ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people.” Libertarians may have a harder time figuring out whether Gorsuch is a good pick for the Supreme Court.

Yesterday Damon Root noted a couple of reasons to be hopeful: Gorsuch is skeptical of bureaucratic power in the application of ambiguous statutes, and he seems inclined to resist erosion of the constitutional ban on unreasonable searches and seizures. The first position is conventionally described as “conservative” (it shows Gorsuch is anti-regulation, according to his progressive detractors), while the latter is viewed as “liberal.” But if your main concern is protecting individual rights by enforcing constitutional limits on government power, there is nothing inconsistent about defending the separation of powers in the one case and the Fourth Amendment in the other.

From the perspective of someone who likes conservatives when they conserve the Constitution, this chart, which appears in today’s New York Times, is remarkably uninformative. It places Gorsuch on a left-to-right continuum, indicating that he is “more conservative” than Scalia but “less conservative” than Justice Clarence Thomas. Thomas, like Scalia, has been a mixed bag in libertarian terms, but he has steadfastly defended important constitutional principles such as federalism, the doctrine of enumerated powers, freedom of speech, and the right of armed self-defense. So is Gorsuch “more conservative” than Scalia in a good way or a bad way?

The New York Times graph is based on Gorsuch’s “Judicial Common Space” score. Under that approach, “If a [federal] judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.” That means Colorado Sen. Cory Gardner’s ideology is imputed to Gorsuch—a puzzling result in light of the fact that President Trump is a Republican of recent vintage and uncertain ideology who probably did not solicit Supreme Court advice from Gardner, who in October, after the release of the 2005 video in which Trump bragged about kissing women and grabbing their crotches without their consent, recommended that Trump step aside and let Mike Pence run for president instead. Nor did Gardner, who was elected to the House in 2010 and the Senate in 2014, play a role in Gorsuch’s 2006 nomination to the U.S. Court of Appeals for the 10th Circuit.

Even if we accept the logic of this method (which is generally supposed to be a good way of predicting how a nominee will vote on the Supreme Court), there seems to be some dispute about Gardner’s ideology. The rating reflected in the New York Times chart is based on the DW-NOMINATE model, which uses roll call votes to place legislators on an ideological map. Gardner’s DW-NOMINATE Ideology Score is 0.455, which makes him “more conservative” than 72 percent of the current Congress. Govtrack, which rates ideology based on bill cosponsorship, gives Gardner 0.83 on its scale of conservatism, making him the 31st most conservative member of the Senate. But Conservative Review gives Gardner a dismal “Liberty Score” of 41 percent, based on 10 “liberal votes” and seven “conservative votes,” while On the Issues classifies him as a “libertarian-leaning conservative.”

Putting that dispute aside, what is Gardner’s ideology supposed to tell us about how Gorsuch would vote as a Supreme Court justice? In the article cited by the Times, Washington University political scientist Lee Epstein and her co-authors divided Trump’s possible Supreme Court nominees into three categories: “moderately conservative,” “conservative,” and “extremely conservative.” Epstein et al. put Gorsuch in the middle group, indicating that he would vote “to limit gay rights, uphold restrictions on abortion, and invalidate affirmative action programs.” And what about all the other issues that might come before the Court? “If we use [Justice Samuel] Alito as our guide,” the authors say, “we would expect these 16 candidates [including Gorsuch] to reach conservative decisions in 64% of all cases and in 73% of non-unanimous decisions.”

Unless you automatically equate “conservative” with either “good” or “bad,” that is not very helpful. It does not tell us, for example, how Gorsuch is apt to vote in cases involving free speech, due process, property rights, search and seizure, or federalism. A better guide might be Gorsuch’s judicial philosophy, which is after all supposed to be what judges consult in applying the law. New York Times legal reporter Adam Liptak says Gorsuch “shares Justice Scalia’s legal philosophy,” meaning he is “an originalist” who “tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it.” That approach, Liptak adds, “leads him to generally but not uniformly conservative results.”

Scalia was by no means a consistent originalist, but his inclination toward that approach produced “liberal” results more frequently than you would expect based on the progressive caricature of him as an authoritarian ogre. In fact, he was often more inclined to oppose the government’s position than some of his reputedly more liberal colleagues. If Gorsuch’s judicial philosophy is in fact similar to Scalia’s, libertarians could do a lot worse.

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Trump Bubble Bursts: New at Reason

It was inevitable the Trump bubble, such as it was, was going to burst.

John Stossel writes:

The bubble burst. My fantasy died.

I wasn’t a big Donald Trump backer—on TV I have called him a bully, a narcissist, etc.—but his first days were thrilling!

Finally, a president who meant it when he said he’d cut red tape that kills growth, a man who mocks political correctness and sneers at leftist reporters. Finally, an executive choosing good people: Andy Puzder, Scott Pruitt, Betsy DeVos, Mick Mulvaney, Mike Pompeo…

These are not the political hacks I’ve come to expect from D.C.—not the smug bureaucracy-lovers Hillary Clinton would have inflicted on us. These are people who understand the limits of government command and control, people eager to lift the web of opportunity-smothering rules.

Trump revived the Keystone Pipeline, froze federal hiring. Wow.

But then he broke my heart.

His immigrant ban is bad. I won’t write about it until I know more. But even before that, he said he’d impose a 20 percent tax on Mexican imports, and he trashed trade by insisting that “we want the (Keystone) pipe to be manufactured here!”

View this article.

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Brickbat: All You Can Drink

Soda fountainFrance has banned restaurants and other places that sell drinks containing sugar or other sweeteners from offering free refills of those drinks. Some restaurants have already removed or moved their drink fountains, while Five Guys has placed microchips on drink cups that switch off their drink fountains if someone tries to refill a cup. The ban is aimed at fighting obesity.

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“Armed” is Same as “Armed and Dangerous” When it Comes to Police Searches, 4th Circuit Concludes

A decision last week from the 4th Circuit Court of Appeals declared that being armed, even legally, is the same as being “armed and dangerous” and leaves you open to police search. It also implies, according to a concurring opinion, that gun carriers lose significant First Amendment as well as Fourth Amendment rights.

Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts.

However, the police had received a tip that Robinson had been seen loading a gun and putting it in his pocket before he got in the car. He was in a 7-11 parking lot known to cops as a frequent site of drug sales.

The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon.

Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon.

To quote from the decision last week, Robinson argued as part of his appeals process that “Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down.”

Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision.

The whole case hinges, as the Court explains, in whether “armed” should legally be presumed to mean the same thing as “armed and dangerous,” and they conclude that yes, it can be.

The decision, by Judge Paul Niemeyer, says that Robinson “argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated….Robinson’s position…fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. “

Niemeyer’s majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search, noting that in that original case the court noted in “approving Officer McFadden’s frisk of Terry that ‘a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety.’ In this manner, the Court adopted the now well-known standard that an officer can frisk a validly stopped person if the officer reasonably believes that the person is ‘armed and dangerous.'”

A separate concurring opinion from the 4th Circuit in the case, also against Robinson, by Judge James Wynn tries to separate out the majority opinion’s apparent belief that “armed” and “dangerous” mean essentially the same thing to declare more clearly that being armed with a gun specifically (not, for example, a wine bottle) is the thing that indeed takes away your constitutional right to be free from unwarranted search.

As Wynn plainly writes, “individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms.”

In Wynn’s opinion, in a statement that alarmed many in the gun rights community, the majority opinion as it stands has further (bad) implications for gun carriers and their constitutional rights:

I see no basis–nor does the majority opinion provide any– for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes. See Richards v. Wisconsin…(1997) (“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile.” (emphasis added)).

Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment. See Schenck v. United States...(1919) (Holmes, J.) (“The question in every [freedom of speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (emphasis added)).

A dissent written by Judge Pamela Harris disagrees, after noting that so many law-abiding citizens have carry rights that it just doesn’t hold up to conflate “armed” (even with a gun) and “dangerous” the way the majority decision does, and that:

unless and until the Supreme Court takes us there, I cannot endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would I adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent.

Harris’ dissent also spells out what seems to this non-lawyer a clear circuit split on the question that the 4th Circuit has just created, one that might require the Supreme Court to hash out:

We are not alone in this insight. In Northrup v. City of Toledo Police Dep’t…(6th Cir. 2015), for instance, the Sixth Circuit held that where state law permits the open carry of firearms, the police are not authorized by Terry to conduct a stop – or an attendant frisk – of a person brandishing a gun in public. Where the state legislature “has decided its citizens may be entrusted with firearms on public streets,” the court reasoned, the police have “no authority to disregard this decision” by subjecting law-abiding citizens to Terry stops and frisks…..; see also, e.g., United States v. Leo…(7th Cir. 2015) (rejecting “frisk” and search of backpack on suspicion that it contains gun in light of “important developments in Second Amendment law together with Wisconsin’s [concealed-carry] gun laws”); United States v. Ubiles (3d Cir. 2000) (invalidating Terry stop based on suspicion of gun possession in open-carry jurisdiction).

Wynn’s boldly stated conclusions about all the rights that gun carriers lose based on this 4th Circuit judgment have been viewed-with-alarm by, among others, the National Rifle Association’s Institute for Legislative Action and Ammoland.

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Trump Nominates Neil Gorsuch to the Supreme Court

President Donald Trump has nominated Neil Gorsuch to replace the late Justice Antonin Scalia on the U.S. Supreme Court.

Gorsuch is 49 years old and currently serves as a judge on the U.S. Court of Appeals for the 10th Circuit. He is a highly respected legal conservative whose credentials include a law degree from Harvard and a Supreme Court clerkship under Justices Byron White and Anthony Kennedy.

Gorsuch is perhaps best known for his sharp critique of the legal doctrine known as Chevron deference. Named after the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Chevron deference says that when the federal courts are confronted with an “ambiguous” statute, the default position is for federal judges to defer to the statutory interpretation favored by the executive branch agency charged with enforcing that statute. “Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do,” said Justice John Paul Stevens in his Chevron majority opinion. “While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices.” In other words, Chevron instructs the courts to tip the scales in favor of the executive branch in such cases.

But what about the judiciary’s independent duty to act as “an impenetrable bulwark against every assumption of power in the legislative or executive,” as James Madison once described the role of the courts? Doesn’t Chevron deference amount to a judicial surrender in this core area of responsibility? Judge Gorsuch certainly thinks so. In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, Gorsuch blasted Chevron deference as a “judge-made doctrine for the abdication of the judicial duty.” According to Gorsuch, “under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more.”

Gorsuch has also rejected pro-government deference in the Fourth Amendment context. For instance, in his 2016 dissent in United States v. Carloss, Gorsuch strongly objected to the majority’s view that police officers had the “implied consent” to enter private property for a warrantless “knock and talk” on a homeowner’s front porch even though the homeowner had placed multiple “No Trespassing” signs around the property and even on the front door. Under the government’s flawed theory of the Fourth Amendment, Gorsuch complained, “a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.” As Gorsuch dryly observed, “this line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”

Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It’s not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration.

On the hot-button issue of abortion, Gorsuch’s judicial record is quiet. But in his 2006 book The Future of Assisted Suicide and Euthanasia, he did seemingly point in an anti-abortion direction, rejecting the case for legalizing assisted suicide on the grounds that “human life is fundamentally and inherently valuable, and the taking of human life by private persons is always wrong.” Gorsuch also rejected the “libertarian case for assisted suicide” because, he argued, “faithful adherence to libertarian theory” would also justify the legalization of “mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illegal drugs, prostitution, or the sale of one’s organs).”

In that same book, Gorsuch also questioned whether the Supreme Court had any business protecting unenumerated constitutional rights—such as the right to privacy—under the Due Process Clause of the 14th Amendment, which says that no state may deprive any person of life, liberty, or property, without due process of law. Citing the work of conservative legal scholar Robert Bork, Gorsuch argued that the Due Process Clause is stretched “beyond recognition” when it is held to be “the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments.”

Unfortunately, Gorsuch’s book did not address the meaning of another, closely related constitutional provision: the Privileges or Immunities Clause of the 14th Amendment. Regardless of what Gorsuch may think about substantive due process, the historical evidence clearly shows that the Privileges or Immunities Clause was originally understood to protect certain unenumerated rights. For example, according to Republican Congressman John Bingham of Ohio, the author of Section One of the 14th Amendment, among the “rights, privileges, and immunities” that the amendment secured against state infringement was “the right to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.” In other words, interpreted according to its original meaning, the 14th Amendment does protect certain unenumerated rights, such as the right to economic liberty.

Given Judge Gorsuch’s stated aversion to the judicial safeguarding of unenumerated rights via the Due Process Clause, it is essential to learn what he thinks about the judicial safeguarding of unenumerated rights via the Privileges or Immunities Clause. As Justice Clarence Thomas has rightfully observed, “the mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects does not render it incapable of principled judicial application.” The Senate Judiciary Committee should ask Gorsuch whether or not he agrees with Justice Thomas on this crucial matter of original meaning and constitutional law.

Now that President Trump has picked his nominee, the next move rests in the hands of the Senate Judiciary Committee. Will Senate Democrats seek to block Gorsuch’s nomination, just as Senate Republicans recently blocked the nomination of Merrick Garland? Will the Republicans employ the so-called nuclear option and effectively end the filibuster for all Supreme Court nominees, just as the Democrats did in 2013 when they ended the filibuster for lower-court picks? Will the Gorsuch hearings be transformed into a referendum on the Trump administration itself?

One thing is certain: The battle over the future of the Supreme Court has just begun.

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If You Disapprove of Trump’s Refugee/Travel Ban, You’re in the Minority

A poll of 1,200 Americans over the past two days finds that a plurality of Americans—49 percent—approve “strongly” or “somewhat” of Donald Trump’s ban on all refugees and travelers from seven majority-Muslim countries. Just 41 percent oppose the action, part of which the administration has already walked back.

According to Reuters, the split runs tightly along partisan lines, with 51 percent of Republicans strongly agreeing with the executive order and 53 percent of Democrats strongly disagreeing. And how’s this for feels?

The Reuters/Ipsos poll found 31 percent of Americans feel “more safe” because of the ban, compared with 26 percent who said they felt “less safe.” Some 38 percent said they felt the United States was setting “a good example” of how best to confront terrorism, while 41 percent said the country was setting “a bad example.”

Democrats were more than three times as likely as Republicans to say that the “U.S. should continue to take in immigrants and refugees,” and Republicans were more than three times as likely as Democrats to agree that “banning people from Muslim countries is necessary to prevent terrorism.”

We’re already safer, despite the fact that since 1980, zero Americans have been killed in the United States by people admitted as refugees! More of us support the ban than abjure it, but more of us believe we’re setting a “bad example.” America, do you contradict yourself? Very well, then, you contradict yourself!

More results, and discussion of methodology, are here.

The executive order, which went into effect on Saturday at midnight, provoked demonstrations around the country and, as Reuters notes, a dozen states are looking into files lawsuits against it. Additionally, the acting attorney general was fired after stating she wouldn’t enforce the law.

In Congress, most Democrats have spoken out against the ban; they’ve been joined by 40 or more Republicans. That number is likely to go down if and when more people watch this awful video (courtesy of Fox News) of Nancy Pelosi and Charles Schumer working a crowd to sing “This Land Is Your Land” and attempting to show “the real people” affected by the ban.

This is one of those moments when I’d rather be right than popular. Trump’s order is based on hysteria and panders to the worst sort of xenophobia at work in the dark night of the American psyche. As important, it hurts our efforts in fighting Islamic terrorism by alienating allies in the Middle East.

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Making the Case for Immigration Reform in the Era of Trump (New at Reason)

As president Trump’s immigration crackdown prompts nationwide protests, Reason Foundation convened three policy experts in Washington, D.C. to discuss the moral and economic case for reform.

With…

ILYA SOMIN – Law professor, George Mason University. Contributor, The Volokh Conspiracy, at The Washington Post.

TIM KANE – Economist, Hoover Institution at Stanford University; editor of Peregrine, an immigration journal.

SHIKHA DALMIA – Senior Analyst, Reason Foundation.

Click below for full text, links, and downloadable versions.

Subscribe to our YouTube channel.

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View this article.

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Incompetence and Cronyism Plague U.S. Attempts to Counter ISIS Online

A new report by the Associated Press claims that the U.S. counter-propaganda program WebOps is failing in its mission to thwart terrorist recruitment due to incompetence, corruption, and cronyism. The program was launched several years ago by a small group of civilian contractors and military officers assigned to the information operations division at U.S. Central Command’s headquarters in Tampa, Florida. It is run by an Alabama-based company called Colsa Corp., which provides specialized computer programs to mine social media accounts of terrorist propaganda.

WebOps is supposed to use Arabic-speaking analysts to sift through social media looking for individuals deemed vulnerable to terrorist recruitment. It’s then supposed to contact them using fictionalized identities and urge them not to join organizations like ISIS. The reality, as reported by the Chicago Tribune, is that some of the analysts employed by WebOps lack counter-propaganda experience, cannot speak Arabic fluently, and don’t understand Islam well enough to combat ISIS’ recruitment efforts.

The Tribune noted that WebOps “experts” often mess up language that is specific to a region or sect of Islam. “People can tell whether you are local, or whether you are Sunni or Shia,” a former WebOps worker claimed. And as Fox News put it, “It’s hard to establish rapport with a potential terror recruit when–as one former worker told the AP–translators repeatedly mix up the Arabic words for ‘salad’ and ‘authority.'” The mistake has resulted in open ridicule over “Palestinian salad” on social media.

The Associated Press was informed by workers wishing to remain anonymous that data was being manipulated to create the appearance that the counter-propaganda operation was working. “The boss told [one worker] that the scoring reports should show progress, but not too much, so that the metrics would still indicate a dangerous level of militancy online to justify continued funding for WebOps,” the Tribune reported.

The government opened bidding on a new counter-propaganda operation worth at least $500 million early last year, but after a few months the Naval Criminal Investigative Services began looking into allegations that corruption was influencing the contract award process. A whistleblower said information operations division officers were being treated to expensive dinners paid for by a contractor, and that there’s a heavy drinking culture at the office where classified work takes place. CBS News reported that “the drinking was confirmed by multiple contractors, who spoke to AP, and described a frat house atmosphere where happy hour started at 3 p.m.”

The whistleblower also accused Army Col. Victor Garcia, who led the division until July 2016, of using his influence to direct the $500 million contract to a group of vendors that included his close friend’s firm. A bid for the contract by the global security company Northrop Grumman was assisted by M&C Saatchi, an advertising agency where Garcia’s friend Simon Bergman is an executive.

According to the Chicago Tribune, the whistleblower alleges Garcia informed him that “any team must include Simon Bergman.” Northrop won the bid.

Garcia denies any wrongdoing. “Because I was aware of these conflicts of interest, I intentionally kept myself out of that process, with any of these contract processes,” he explained to AP.

The bipartisan Commission on Wartime Contracting found that in 2011, anywhere from $31 billion to $60 billion was lost to waste and fraud during contingency operations in Iraq and Afghanistan.

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Trump Will Announce Supreme Pick Soon, Expected to Be Gorsuch or Hardiman: P.M. Links

  • TrumpPresident Trump has invited his two finalists for the Supreme Court position—Neil Gorsuch and Thomas Hardiman—to come to Washington, D.C. He is expected to announce the pick tonight.
  • The Senate Judiciary Committee has delayed its vote to confirm Sen. Jeff Sessions as Attorney General.
  • Betsy Devos clears the Senate Health, Education, Labor and Pensions committee. The vote was strictly along party lines.
  • Some academics want to boycott U.S.-based conferences in protest of Trump’s executive order on immigration.
  • Trump’s next immigration order could make life miserable for Sillicon Valley.

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