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Bench Memos

NRO’s home for judicial news and analysis.

Confusing Nominations and Vacancies



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TPM’s Sahil Kapur writes:

A total of 155 nominations for the executive and judicial branches are pending on the Senate floor, and there’s nowhere near enough time to confirm them all before the next Congress is sworn in. That includes 50 vacancies on district courts and 7 vacancies in appeals courts, and more will open up. 

But the 155 nominations “pending on the Senate floor” do not in fact “include[] 50 vacancies on district courts and 7 vacancies in appeals courts.” As the Senate executive calendar that Kapur links to shows, there are (by my quick count) only seven nominations of district-court judges pending on the Senate floor and zero nominations of federal appellate judges. As Kapur’s second link shows, Obama has not yet nominated anyone to any of the seven pending appellate vacancies, and he has made only 25 nominations to the 50 district-court vacancies. Further, as this more detailed list shows, 15 of those 25 nominations have been made since mid-June.

Update, 4:36 p.m.: Kapur has modified the passage to avoid the error.

The Meandering Judicial Philosophy of Judge Posner



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The Washington Blade reports that Judge Richard Posner has essentially flip-flopped on the constitutional status of marriage definitions. As you probably read recently, Posner wrote the panel opinion for the Seventh Circuit striking down Indiana and Wisconsin’s traditional marriage definitions. The meandering 40-page opinion covers a lot of territory, ranging from psychological studies to his thoughts on parenting. Ed Whelan (Parts 1, 2, 3, and 4) and law professor Josh Blackman have already written about the opinion’s weaknesses on the merits.

Interestingly, the Blade notes that Posner was not always so confident in his views about a constitutional right to same-sex marriage:

In a 1997 book review published in the Michigan Law Review, for example, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment” by Yale Law Professor William N. Eskridge, Jr. The book, which came out at a time when Hawaii was on track through the judiciary to legalize same-sex marriage, espouses the idea that courts must grant same-sex couples the right to marry as quickly as possible.

Although Posner acknowledges his belief that, without further study, same-sex couples should be allowed to adopt children just the same as different-sex couples, he disputes the notion that the right to same-sex marriage is guaranteed under the U.S. Constitution.

Indeed, as the Blade points out, Posner also expressed worries in a 1998 law review article entitled “Against Constructional Theory” about the inadequate factual basis for two decisions that would ultimately lay the groundwork for today’s same-sex marriage challenges. Speaking of the Supreme Court’s 1996 opinions in Romer v. Evans (1996) and United States v. Virginia (1996), Posner wrote:

My point is not so much that Romer and the VMI case [United States v. Virginia] were decided incorrectly as that the decisions are so barren of any engagement with reality that the issue of their correctness scarcely arises. It is the lack of an empirical footing that is and always has been the Achilles heel of constitutional law, not the lack of a good constitutional theory. But this raises the question of what the courts are to do in difficult constitutional cases when their ignorance is irremediable, though one hopes only temporarily so. Judges don’t yet know enough about the role of women in the military, or about the causes of homosexual orientation, to base decisions in cases such as Romer and VMI on the answers to these empirical questions.

Posner’s central point was that courts should not come up with constitutional theories without solid empirical—that is, social scientific—basis. (I’m pretty sure that’s not the sort of thing that the Constitution always requires, but let’s leave that issue aside.)

In the article, Posner ruminated at some length on the nature of opposition to “homosexual rights,” concluding that the state amendment in Romer fell “far short of [the] savagery” required to impose constitutional limitations.  Posner concluded with the following:

Inevitably, the judge’s vote in such a case will turn on his values and temperament. Those judges who believe (a belief likely to reflect a judge’s values and temperament rather than a theory of judicial review) in judicial self-restraint, in the sense of wanting to minimize the occasions on which the courts annul the actions of other branches of government, will consider ignorance of the consequences of a challenged governmental policy that is not completely outrageous a compelling reason for staying the judicial hand in the absence of sure guidance from constitutional text, history, or precedent. . . . So one thing that we may hope for through the application of the methods of scientific theory and empirical inquiry to constitutional law is the eventual accumulation of enough knowledge to enable judges at least to deal sensibly with their uncertainty about the consequences of their decisions. Ultimately many of the uncertainties may be dispelled. Until that happy day arrives, the most we can realistically ask of the judges is that they be mindful of the limitations of their knowledge. And I do not mean knowledge of constitutional theory.

Posner was clearly leaving himself wiggle room on the issue, and has used it. At some point between 1998 and 2012, the Blade notes, Posner changed his mind about same-sex marriage, announcing the change in a rambling posting on his blog that cited his newfound conclusions (based in part, it seems, on a Wikipedia entry).

But Posner has done more than discover new facts that require a different conclusion. In his Seventh Circuit opinion, Posner concluded that Indiana’s marriage definition fails rational-basis scrutiny, but demanded precious little of the social science that he would have demanded from same-sex marriage activists in 1998. Indeed, he flipped the burden around entirely, ultimately concluding that the states’ arguments in favor of their definitions constituted “unsupported conjecture.”  

I’ll say this: Nobody who reads a Posner opinion is going to mistake him for an originalist. 

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Our New Trial-Lawyer Overlords



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This past Tuesday, the Missouri Supreme Court struck down a portion of the state’s tort-reform laws, declaring in Lewellen v. Franklin that a cap on punitive damages violates the right to trial by jury. If this movie sounds familiar, you may be remembering Watts v. Lester E. Cox Medical Centers from 2012, when the same court struck down Missouri’s cap on medical-malpractice damages (at least noneconomic damages) on the same theory.

These cases are the latest manifestation of the trial lawyers’ domination of the Missouri Bar and the so-called “merit selection” process. It won’t surprise you to know that the trial lawyers are big fans of “merit selection” because it gives them the power to choose which candidates for Missouri Supreme Court are ultimately presented to the governor for nomination. Conflict of interest, anyone?

In any event, Lewellen is the latest in a series of cases striking down tort-reform statutes based on a faux-originalist theory that Judge Michael Wolff originally introduced in State ex rel. v. Diehl (Mo. banc 2003). The theory goes something like this: The state constitution guarantees that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” This means what it did in 1820, when the Missouri’s constitution was adopted. For causes of action that have come into existence after 1820, the court must analogize the cause of action to a common-law cause of action that would have existed in 1820. No legislative limits on damages existed in 1820, and the jury decided damages at the time. Ergo, any legislative limit on damages violates trial by jury. Effectively, this freezes the legislature out from affecting any of Missouri’s substantive law of damages.

There are many logical and practical problems with this faux-originalist approach (other than its utter subjectivism). Two problems are immediately evident upon close examination of the constitution’s text. First, the provision guarantees who hears the trial, not which post-trial motions are permitted, or what substantive law is applied. Second, unlike the Bill of Rights’ jury-trial guarantee, Missouri’s right of jury trial has the further qualification that it be protected “as heretofore enjoyed.” That means that Judge Wolff’s forward-projection approach has it exactly backwards: The language preserves existing common-law rights of trial by jury but says nothing about yet-to-be-established causes of action.

An enormous fourth problem with this theory lurks in the background. The common law has long recognized the ability of a trial judge to set aside an excessive damages award and/or order a new trial. Blackstone notes the use of that power as early as 1655 and a Missouri Supreme Court case from 1831 finds nothing improper about using it. Even two years ago (in a case involving the same defendant, incidentally), the court explicitly defended its own continued use of remittitur. The court’s objection is not to modifying damage awards in principle; it’s just that the judiciary thinks the legislature can’t do anything about it.

Think about that for a moment: Missouri judges, who are screened by the trial lawyers who appear before them, now claim to have exclusive power over damages awards. The fox thinks it owns the henhouse.

Although this week’s decision had no recorded dissent, Watts, the precedent it relies on, threw out 20 years of contrary precedent by a one-vote margin of 4–3. A Republican-appointed judge recused himself for unknown reasons, but then the chief justice, who was appointed by a Democrat, appointed another Democrat-appointed judge to fill his spot. The replacement judge, Judge Sandra Midkiff, cast the deciding vote.

Oddly, Judge Patricia Breckenridge, the judge who wrote the opinion in Lewellen, joined the vigorous dissent in Watts. Yet she doesn’t seem to have any lingering concerns about extending that precedent to other areas. In an ironic twist, Breckenridge was appointed by the champion of Missouri tort reform, Republican Matt Blunt, over vigorous conservative opposition.

I wish I could say I wasn’t worried about where this line of cases will go. The whole thing keeps getting weirder and weirder. 

[UPDATED: Watts was in 2012, not 2013 as this post originally stated.]

[UPDATE] I should also note that in fairness to Governor Blunt, he picked the least bad option. The state’s bar-dominated nominating commission sent him three lousy nominees to choose from, and he selected the best of the three.  If he hadn’t picked Breckenridge, the commission itself would have made its own choice, which probably would have been much worse. The fact that the least-bad candidate still turned out to be aligned with the state’s trial lawyers shows how awful the Missouri Plan is, not that Governor Blunt made a bad choice.

This Day in Liberal Judicial Activism—September 15



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1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

My Amicus Brief in Young v. UPS



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Yesterday I filed an amicus brief with the Supreme Court in support of Peggy Young, who is seeking to overturn a decision by the Fourth Circuit Court of Appeals that took an atextual and unprincipled approach to the question of accommodations under the Pregnancy Discrimination Act.  You can find the amicus brief here.

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Clarification on Bush Appointees



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In my post last week on “What the November Elections Mean for the Federal Courts of Appeals,” I stated, “As things now stand, President Obama has appointed exactly the same number of federal appellate judges—52—as President George W. Bush appointed in his first six years.” I inadvertently included in the Bush total his short-term recess appointment of Charles Pickering. Bush’s six-year total for confirmed federal appellate judges was 51.

Also, since the time of that post, the Senate has confirmed Obama’s nomination of Jill Pryor to the Eleventh Circuit. So that puts Obama ahead of Bush 53 to 51.

Challenge to Wisconsin Voter ID



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According to this news account, the challenge to invalidate Wisconsin’s voter-ID law prior to the upcoming election appeared to get a cold reception today before the Seventh Circuit panel hearing the case. The proper framework for determining whether such laws violate Section 2 of the Voting Rights Act is the subject of this paper by Hans von Spakovsky and me.
 

This Day in Liberal Judicial Activism—September 12



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2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.” 

Revised Heritage Guide to the Constitution



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The Heritage Foundation is today releasing a revised second edition of its Heritage Guide to the Constitution, the first edition of which was issued in 2005. The second edition “takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform.”

On a review of the advanced galley, I am confident that the praise that I offered for the first edition (in this NR book review) will apply fully to the revised edition:

The Heritage Guide to the Constitution is an invaluable reference work that anyone interested in learning more about the Constitution should have on his bookshelf. It consists primarily of a couple hundred or so brief essays — the vast majority no more than a page or two in length — on every clause or subclause in the Constitution. Each essay attempts to explain the original meaning of the provision that it addresses as well as to set forth the current state of the law on that provision. Each essay also sets forth, where appropriate, cross-references to other relevant provisions in the Constitution, citations to legal materials for further exploration, and a list of significant cases.

More than 100 experts — mostly law professors but also academics from a variety of other fields as well as a smattering of judges and lawyers — have contributed the essays. The essays are clearly written, concise, and highly informative. They are scholarly and dispassionate, not polemical. The Heritage Guide also contains three brief and elegant introductory essays by the editors — one by [former Attorney General Edwin] Meese on basic constitutional principles, one by [Matthew] Spalding on the history of the Constitutional Convention, and one by [David] Forte on originalism.

Anyone doing serious research on a question of constitutional law will find the Heritage Guide an excellent starting point. But the book is also a pleasure to browse, as the casual reader can bounce from topics like the Recess Appointments Clause to Treason to the Rights Retained by the People. The fact that less than one-fourth of the book relates to constitutional amendments may also serve to remind the modern reader, who too often hears about little other than the Bill of Rights and some generalized, nontextual right of privacy, that the real genius of the Constitution, the greatest guarantee of our liberties, lies in its scheme of separated powers.

Abe Fortas and George Hamilton



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I recently had occasion to expose the absurdity of Bruce Allen Murphy’s assertion, in his cartoonish and incompetent new biography of Justice Scalia, that Scalia’s “extrajudicial speeches and conduct … ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” As I pointed out, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), had described conduct of Fortas’s that was far removed from even Murphy’s most tendentious claims about Scalia. Fortas had helped LBJ “draft pieces of  legislation,” had “revise[d] State of the Union addresses in the Oval Office,” had “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” had discussed with LBJ “issues then under consideration by the Supreme Court,” and had agreed to payment to serve on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court.

It turns out that there’s still more on Fortas. According to this National Law Journal article (registration required for access, I think), Villanova law professor Tuan Samahon has discovered through FOIA requests that in 1966 Abe Fortas was (in Samahon’s words) “involved as LBJ’s toady helping [FBI deputy director] Cartha DeLoach investigate a would-be son-in-law to find derogatory information about him.” The “would-be son-in-law” who was dating LBJ’s daughter was Hollywood actor George Hamilton.

The article also discusses another FBI memo about an alleged relationship between Fortas and a teenaged male prostitute, but the evidence seems dubious.

By the way, on the Wolfson scandal, a reader calls to my attention that Fortas’s conduct appears to have been much worse than Murphy’s Encyclopedia entry suggests. Among other things, as a 1977 Washington Post article by Bob Woodward spells out, a transcript of a conversation that Wolfson had with Fortas (and that Wolfson secretly recorded) indicates that in April 1969 Fortas, while still a justice, solicited LBJ to issue Wolfson a pardon. The transcript also indicates that Fortas initially planned to decline LBJ’s proposed nomination of him to the Court in 1965 because of the financial sacrifice that moving from private practice to the Court would entail but that Wolfson’s offer of financial assistance to Fortas led him to change his mind and accept the nomination. (Murphy’s biography of Fortas, which I haven’t read, might well address these matters.)

Devastating New Republic Review of Scalia Biography



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In a New Republic review titled “A Liberal’s Reluctant Defense of Scalia,”* University of Chicago law professor Justin Driver provides an excellent and devastating critique of Bruce Allen Murphy’s new biography of Justice Scalia. As Driver sums it up:

There can be no question that Murphy intends readers to walk away from his book with a thoroughly negative impression of Scalia, but his hatchet is so crude and so wanton that it falls well short of achieving its intended effect…. Legal liberals should find Murphy’s grotesque rendering of Scalia especially distressing because the stakes could hardly be higher. 

Driver’s lengthy critique, I’m pleased to note, has much in common with my (much shorter) review as well as with my (longer) series of blog posts (see Parts 1234, 5, 6, 7, and 8). I encourage you to read Driver’s entire review, including the eight or so paragraphs at the outset in which he intelligently discusses Scalia’s extraordinary influence on American law. I’ll highlight here some excerpts that particularly reflect Driver’s assessment of Murphy’s book:

[W]hatever the book’s virtues, they are dwarfed by its vituperative attacks on Scalia’s character and even on his religion….

Murphy’s book, alas, … consistently casts Scalia’s actions and motivations in the least flattering light available. Indeed, Murphy’s portrait of Scalia consists overwhelmingly of wartsand, worse still, some of the blemishes he depicts seem more contrived than real….

Murphy also misleadingly alleges that Scalia’s public addresses initiated numerous undesirable developments at the institution that he joined. These speeches, Murphy claims, “began the process of politicizing the Court and launching the partisan warfare among the justices.” But Scalia cannot possibly bear responsibility for starting that process at the Court, because it antedated his arrival…. [See my Part 6 post]

On no topic, however, is Murphy’s treatment more objectionable than his fixation on Scalia’s Catholicism…. [I]n a truly astonishing passage, Murphy writes: “In sum, pre-Vatican II Catholicism and legal originalism/textualism are so parallel in their analytical approach that by using his originalism theory Scalia could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.” Suggesting that Justice Scalia is using his seat on the Supreme Court to promote Catholic teachings is an unusually aggressive move. Regrettably for Murphy, the claim does not withstand much scrutiny even in the highly inflammatory context in which he lodges it….

If Scalia were truly committed to eliminating the gap between Catholicism and constitutionalism, many observers would surely find that these positions fail spectacularly at accomplishing the task. It requires no great familiarity with Catholicism to know that the Church understands life to begin at conception. A jurist committed to operationalizing that notion would encounter little difficulty finding, contra Scalia, that the Constitution clearly forbids laws permitting women to receive abortions under any circumstances. [See my Part 3 post]  

Driver also soundly faults Dahlia Lithwick (as I did) for somehow “shower[ing] praise” on Murphy:

Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth topower is perverse. 

* Update: I see that the New Republic has changed the title to “How Scalia’s Beliefs Completely Changed the Supreme Court.”

Incredible Wisconsin Shenanigans Against Gov. Walker



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For anyone who’s been puzzled by reports of the investigations of Wisconsin governor (and possible 2016 presidential candidate) Scott Walker, this article by Stuart Taylor ought to help clear things up. I won’t try to summarize the complicated proceedings but will instead highlight two points.

First, Milwaukee district attorney John Chisholm used a Kafkaesque procedure—a so-called “John Doe” proceeding—under Wisconsin law to transform a request by Walker’s office for a criminal investigation of an embezzlement into, wonder of wonders, a secret fishing expedition into the entire operations of Walker’s office, including his communications with outsiders. Then:

Chisholm’s assistant district attorneys drew on the trove of confidential information collected in the first John Doe investigation of Walker to launch a second, larger one, this time into suspected campaign-finance violations before and during Walker’s 2012 recall campaign.

They obtained sweeping subpoenas for records from at least eight phone companies and records from every major private email provider including Google and Yahoo, ultimately amassing hundreds of thousands of pages on the activities of every major conservative group in Wisconsin and many around the country, as well as of Walker and his team. They seized documents from people’s offices and homes.

Armed officers raided the homes of Walker’s supporters across the state, using bright floodlights to illuminate the target’s homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and were denied the ability to contact their lawyers.

Second, Chisholm’s investigation appears to have been driven by his—and his wife’s—opposition to Walker’s battle against public-sector unions:

Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.” …

Chisholm added, according to that prosecutor, that “he felt that it was his personal duty to stop Walker from treating people like this.” …

Chisholm’s private displays of partisan animus stunned the former prosecutor. “I admired him [Chisholm] greatly up until this whole thing started,” the former prosecutor said. “But once this whole matter came up, it was surprising how almost hyper-partisan he became … It was amazing … to see this complete change.”

This Day in Liberal Judicial Activism—September 9



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1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Speaking of “Utter Moral Failure”



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Writing for Salon, Heather Digby Parton waxes indignant that Justice Scalia could hold the position that the Constitution is not violated when a state executes a person who (in Scalia’s words), “having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be ‘actually innocent.’” Scalia set forth that position more than 21 years ago, in Herrera v. Collins, but the passage of time hasn’t been long enough to enable Parton to see straight.

“How on earth,” Parton wonders, “can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?”

Had Parton actually undertaken to read Scalia’s opinion, she might have a clue to the answer to her question. Scalia refers to “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” He further opines that “it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.”

I don’t know whether Scalia is right on the latter proposition, but his broader point is that not every evil is remediable in the federal courts as a matter of constitutional law. More particularly, “there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the  Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Contrary to what Parton seems to think, Scalia’s position in no way implies that he thinks it’s morally okay for the state to execute innocent people. (Perhaps I’m wrong, but I’m guessing that Parton, as a leading “progressive” blogger, thinks it’s okay for society to allow the private killing of the lives of the innocent unborn.) Rather, Scalia simply recognizes that he doesn’t have a roving commission to prevent such a wrong.

Posner’s Sloppy Sophistry—Part 4



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See Parts 1, 2, 3

Adding to my Part 2 post, I’ll provide here some further examples of the abysmal quality of Judge Posner’s reasoning in his ruling last week against Indiana’s and Wisconsin’s marriage laws:

1. Indiana explains in its brief that civil marriage exists as “a means of enticing individuals whose sexual intercourse may produce children to enter voluntarily into a relationship that the government recognizes and regulates for the sake of protecting and providing for any children the couple’s sexual union may produce.” In response, Posner contends that Indiana’s position (a) should require it “not [to] allow an infertile person to marry” and, further, (b) should require it to “make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease” (p. 17). I’ve already dealt in my Part 2 post with the first half of Posner’s contention. Let’s consider here the second half.

Consider how utterly crackpot Posner’s assertion is. By his illogic, once, say, a woman with young children goes through menopause, Indiana would supposedly be required to conclude (consistent with its rationale for marriage) that her existing marriage no longer operates “for the sake of protecting and providing for” those children.

Posner’s proposition is too stupid for words. Only someone who doesn’t think clearly would entertain the thought for a moment. Only someone who writes faster than he thinks would put it on paper. Only someone who doesn’t carefully review what he has written would publish it. And only someone who wields judicial power recklessly would put it in a judicial opinion.

(By using the example of a woman “with young children” to illustrate the patent idiocy of Posner’s proposition, I of course don’t mean to imply that the proposition would have force if it were limited to couples with adult children.)

2. Purporting to address Indiana’s argument, Posner finds it baffling that heterosexuals who “get drunk and pregnant, producing unwanted children,” receive the “reward” of being “allowed to marry,” whereas same-sex couples who “do not produce unwanted children,” receive the “reward” of being “denied the right to marry.” This is what triggers Posner’s widely quoted “Go figure” snark. (Pp. 19-20.) But Posner simply isn’t confronting Indiana’s argument, which has nothing to do with awarding marriage as a prize for good behavior. Indiana’s responsible-procreation rationale fully explains the differential treatment that Posner objects to.

3. Posner contends that, since Indiana “permits joint adoption by homosexuals,” and since it believes that marriage is better for children, Indiana “should want homosexual couples who adopt children … to be married” (p. 23 (emphasis in original)).

It’s remarkable that Posner, one of the founders of the law-and-economics movement, could make such a simpleminded static argument that fails to take into account some major trade-offs. In particular, it’s entirely reasonable for Indiana to conclude that severing in law (as the redefinition of marriage would do) the conceptual link between marriage and responsible procreation would, over time, dramatically increase the number of out-of-wedlock births—and, “[g]iven how small the percentage of [gays and lesbians] is” (p. 32), far exceed any incremental increase in the adoptive capacity of same-sex couples. (Posner contends that Indiana’s claim that “conventional marriage is the solution to [the] problem of [out-of-wedlock births] is belied by the state’s experience with births out of wedlock” (p. 23). But the fact that the situation has worsened over time doesn’t mean that it couldn’t get worse still.)    

*  *  *

More generally, I’ll call attention to law professor Josh Blackman’s posts. Blackman (who supports redefining marriage to include same-sex couples) marvels at how Posner’s opinion “reads like one, long Posnerian stream of consciousness.” He calls Posner’s “free-wheeling approach” to judicial precedent “really, really flimsy” and finds the whole opinion, “from a jurisprudential perspective, … a mess.”

Yes, this is the same opinion that some on the Left are absurdly hailing as “a masterpiece of … logic.” 

Posner’s Sloppy Sophistry—Part 3



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See Parts 1 and 2

Before pointing out some further examples of the dismal quality of Judge Richard Posner’s ruling last week against Indiana’s and Wisconsin’s marriage laws, I’ll highlight that Posner’s abysmal performance is, alas, par for the course with him. There is surely no judge for whom the gap between the reputation for supposed brilliance and the sorry reality is greater. As law professor Orin Kerr wrote a couple of years ago:

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents.

As I noted two years ago, “Over the years, a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge.” Indeed, one accomplished appellate lawyer has offered this blunt assessment:

Posner is, bar none, the worst judge in America. He’s totally unprepared, irrational, and abusive. 

I’m agnostic on whether Posner has recently suffered a steep decline (“Posner’s losing it,” law professor Stephen Bainbridge observed two years ago) or whether he’s long been an embarrassment, but a lawyer who clerked on the Seventh Circuit many years ago suggests the latter:

As a judge, he seemed totally unconcerned with the details and the record, and at times, his opinions, though entertaining, bordered on the absurd. When I clerked, his style was very free-wheeling and unpredictable. He seemed to view precedent as marginally relevant. It was as if he went to his chambers after oral argument and banged out opinions in a stream of consciousness manner. His law clerks told me that they would try to fix his screw-ups when they found contrary precedent. It did not always work. For a guy with his obvious intellect, this was very surprising.

If you want still more evidence, see my series of posts on Posner’s “remarkably slipshod and untrustworthy” attack on Reading Law: The Interpretation of Legal Texts, the treatise co-authored by Justice Antonin Scalia and Bryan A. Garner—and on Posner’s downward spiral of  responses. 

An Excellent Federalist Society–Heritage--Cato Event on Tuesday



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Tomorrow, September 9, at the Mayflower Hotel in Washington, D.C., there will be a multi-panel event on “Civil Rights in the United States” sponsored jointly by the Federalist Society, the Heritage Foundation, and the Cato Institute. The series of panels begins at 9:00 a.m. and continues until about 4:00 p.m., and will include discussions of disparate impact, racial preferences, voting rights (this panel will be moderated by Michael Barone, by the way), and federal civil-rights policy and politics. 

Needless to say, these issues are always of interest and have particular salience these days in light of the ongoing drama in Ferguson. Except for me, all the panelists are brilliant and good-looking; you can read about this excellent event and register for it (it’s free, and includes lunch!) here.

This Day in Liberal Judicial Activism—September 7



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2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

Posner’s Sloppy Sophistry—Part 2



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As Bench Memos readers should know by now, Seventh Circuit judge Richard Posner has amply demonstrated that he can’t be trusted to fairly present arguments that he is contesting. That flaw deeply infects his ruling yesterday (in Baskin v. Bogan) against the marriage laws of Indiana and Wisconsin.

Consider, for example, Posner’s claim that Indiana’s responsible-procreation rationale can’t explain why it allows infertile opposite-sex couples, but not same-sex couples, to marry. Posner spends several paragraphs (pp. 17-20) developing his claim. But he doesn’t fairly present Indiana’s rebuttal points.

Posner purports to present, and respond to, what he calls Indiana’s “involuted pair of answers.” First, he writes:

[Indiana] points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be ‘multiple relationships that might yield unintentional babies.’ … But what is most unlikely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.” [Italics in original; underlining added.]

Posner’s account of Indiana’s supposed argument is oddly garbled, as it’s difficult to see how a person “seekingto breed” with another person “might yield unintentional babies.” Posner’s last sentence indicates that he evidently imagines that the state’s “professed fear” is limited to abandonment of a “desir[ed] … biological child.” But as Indiana puts it, “marriage [of opposite-sex couples] in childless circumstances discourages the partners from engaging in seriatim sexual relations with others that may produce unintended children.” In other words, when a heterosexual couple is infertile but one of the spouses is fertile, the marital norm of fidelity operates to help ensure that there are no unintended children produced outside that marital relationship. Posner doesn’t acknowledge the point, much less respond to it.

Second, Posner presents Indiana’s argument that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” Posner briskly dismisses that as a “strange argument”:

[F]ertile couples don’t learn child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?

But there is no reason to read Indiana to be arguing that the modeling behavior that “non-procreating opposite-sex couples” provide concerns child-rearing. As the passage I quote above makes clear (and as ought to be fairly implicit in any event), Indiana understands the modeling behavior to include marital fidelity. And there is plenty of reason, as the New York Times tells us, to think that marriages of same-sex couples are much less likely to model that behavior.

Further, while Posner acknowledges one paragraph later that it “would be considered an invasion of privacy to condition the eligibility of a heterosexual couple to marry on whether both prospective spouses were fertile” and that fertility is often not knowable, he inexplicably fails to apply those insights to the question whether Indiana can explain why it allows opposite-sex couples (irrespective of fertility) to marry, but not same-sex couples.

Posner is also wrong to contend (and to find it “[n]otabl[e]”) that Indiana supposedly “does not argue that recognizing same-sex marriage undermines conventional marriage.” Indiana in fact argues at length (see, e.g., its opening brief at pp. 13-14, 38-42) that the “constitutional argument for same-sex marriage … has no limiting principle” and is ultimately “an argument against marriage.” (Emphasis in original.)

Posner’s Sloppy Sophistry—Part 1



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In judicial rulings against marriage laws, the ratio of hubris to reasoning has been very high. It’s no surprise that Seventh Circuit judge Richard Posner’s ruling yesterday against Indiana’s and Wisconsin’s marriage laws increased that ratio.

In this post, I’ll try to provide a very brief and neutral summary of Posner’s opinion. I’ll use one or more follow-up posts to offer some (non-exhaustive) substantive criticisms of Posner’s reasoning.

Posner (joined by Ann Williams and David Hamilton) rules that Indiana’s and Wisconsin’s marriage laws, which define marriage as a male-female union, violate the Equal Protection Clause. (Posner applies his own four-step analysis in lieu of what he calls “conventional” equal-protection doctrine, but he maintains that the two approaches ultimately converge.) The states’ marriage laws, according to Posner, “discriminate against a minority defined by an immutable characteristic” and are therefore “constitutionally suspect” and subject to heightened scrutiny.

Posner first addresses Indiana’s laws (pp. 14-25). According to Posner, Indiana defends its male-female definition of marriage “on a single ground, namely that government’s sole purpose (or at least Indiana’s sole purpose) in making marriage a legal relation … is to enhance child welfare.” Posner contends that Indiana “does not argue that recognizing same-sex marriage undermines conventional marriage.” Among other things, Posner opines that Indiana’s “policy towards same-sex marriage is underinclusive” because Indiana doesn’t also bar infertile couples from marrying and doesn’t have marriages expire when a once-fertile couple, as a result of age or disease, becomes infertile (p. 17). He also disputes that the state has any special interest in marriage laws that help ensure that parents care for their biological—as opposed to adoptive—children (p. 21), and concludes that Indiana “should want homosexual couples who adopt children … to be married” (p. 23 (emphasis in original)).

As for Wisconsin (pp. 25-37): Posner rejects the various arguments that Wisconsin makes. Among other things, he disputes that Wisconsin should be allowed (as the state puts it) “to act deliberately and with prudence … before transforming this cornerstone of civilization and society.” For Posner, “[g]iven how small the percentage [of gays and lesbians] is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears” (p. 32).

Posner also states that the “discrimination against same-sex couples is irrational and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny” (p. 8). He declines to reach the separate question whether the marriage laws violate the Due Process Clause.

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