This Day in Liberal Judicial Activism—November 17

by Ed Whelan

2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily and unanimously reverses an opinion authored by Ninth Circuit judge Sidney Thomas. Thomas, a native of Montana, was trotted out in 2010 as a supposed moderate candidate for the Supreme Court vacancy that Elena Kagan ended up filling, but he keeps showing that he’s really just Stephen Reinhardt dressed up in a cowboy hat.

2016—In an American Bar Association panel discussion, former Obama White House counsel Kathryn Ruemmler candidly acknowledges that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the vacancy arising from Justice Scalia’s death.

Ruemmler’s remark shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on President Obama’s nomination of Merrick Garland. But neither her statement nor the obvious lack of merit of the constitutional claim will deter some from continuing to peddle it.

Supreme Court to Decide if FACT Act Hacks Away at First Amendment

by James Gottry

Should pro-life pregnancy-care centers be compelled to provide free advertising for abortion providers like Planned Parenthood? On Monday, the U.S. Supreme Court agreed to consider this very question, which the case National Institute of Family and Life Advocates v. Becerra presents.

California lawmakers made their position on abortion abundantly clear when they passed a law called the “Reproductive FACT Act.” The law, which took effect in January 2016, targets pro-life pregnancy-care centers. Let’s be clear, no speculation or inference regarding the law’s intent is necessary; the state admitted targeting centers that “discourage” abortion. And they do so brazenly.

The law forces pregnancy-care centers to shill for the abortion industry by displaying an advertisement that advises women on how they can obtain an abortion from the state — complete with a phone number. Callers are referred to abortion giant Planned Parenthood and other abortion facilities. This bears repeating: Under California law, private pro-life pregnancy-care centers are required to put signs on their walls promoting free or low-cost abortion and contraception services, and providing contact information for those abortion providers.

Forced to undermine their essential purpose

These pro-life centers, such as Pregnancy Care Clinic and other members of the National Institute of Family and Life Advocates, were founded to provide assistance to women facing unplanned pregnancies. Specifically, they offer pro-life information and resources, as well as practical medical or non-medical support that will support a woman’s choice to give birth. Accordingly, forcing these centers to promote abortion goes far beyond demanding that a business advertise for its competitors (though that alone would be absurd). This law requires the centers to promote services that are anathema to their core reason for existing.

Any analogies will sound absurd, but only because the reality defies reason. Consider a vegan restaurant forced to post fliers for Outback Steakhouse, or an Alcoholics Anonymous group required to promote a nearby bar’s happy hour. Should PETA be made to share information on how to obtain free or low-cost hunting licenses? Should the American Lung Association be compelled to advertise for cigarette manufacturers?

The obvious answer to these questions affirms the simple truth about this case: Pro-life pregnancy-care centers should not be forced to contradict their core message.

Free to speak, and free not to speak

The Supreme Court — and the First Amendment — have not been silent on the issue. In 1986, the Supreme Court held that a utility company couldn’t be forced to include in its billing envelope a message supplied by a public-interest group. Even though the message could have been added without increasing costs to the utility company, the court correctly noted that the right to free speech includes “the choice of what not to say.” For that reason, the company could not be required to spread a message with which it disagreed.

A more recent example comes from 2013, where the Supreme Court struck down a law that required groups receiving U.S. government funds for international HIV and AIDS work to adopt a policy explicitly opposing prostitution. In the opinion, Chief Justice John Roberts referred to the “basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say,” adding that “[t]he government may not . . . compel the endorsement of ideas that it approves.”

The abortion business doesn’t need indentured spokespersons

Planned Parenthood receives more than $500 million each year in federal funding. The group boasts of more than $1.8 billion in total assets and, in fiscal year 2016, spent more than $25 million in branding and “advocacy capacity” alone. That same year, they performed 328,348 abortions. Suffice it to say, the business of abortion is set up to thrive (monetarily speaking).

In contrast, pregnancy-care centers are generally small nonprofits with limited funding and modest budgets. They offer their services free of charge (no abortion revenue to boost the budget) and seek only to come alongside expectant mothers and unborn children, helping both to thrive.

Abortion has already silenced enough voices. The abortion industry shouldn’t be allowed to force those that remain to promote its agenda.

James Gottry is legal counsel with Alliance Defending Freedom, which represents the National Institute of Family and Life Advocates.

This Day in Liberal Judicial Activism—November 16

by Ed Whelan

1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a unanimous per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

Sleeper SCOTUS Blockbuster may be the Next Kelo

by Carrie Severino

It took many people by surprise when the Supreme Court ignited a firestorm in the now-infamous Kelo case by giving cities the ability to seize personal property from a private owner and give it to a developer for the alleged “public purpose” of increasing tax revenues. The Court will have another chance to rule on key property rights in what may be this term’s sleeper blockbuster: a patent case that has major implications for constitutional due process guarantees and protecting private property.

The Court will be considering the constitutionality of the Patent Trial and Appeal Board (PTAB), an administrative tribunal created in 2011 by the America Invents Act that was supposed to help address concerns that patents were being issued to people who didn’t deserve them because their inventions weren’t truly new or that were too broad.

Congress created the Patent Trial and Appeal Board to make it easier to challenge bad patents and crack down on abusive behavior by so-called “patent trolls.”  Unfortunately, the PTAB has become a roving “patent death squad”– a moniker that has amazingly been embraced by the board’s own former chief administrative judge and is an apt description of a tribunal that invalidates upwards of 70% of the patents it considers. It now threatens to destroy the real bridgebuilders along with the trolls.

From a policy perspective, the PTAB has undermined its own goal. Instead of freeing up the innovation economy, it has created a new set of legal procedures that can be abused to extort money from patent owners and invalidate legitimate patents. The result is exactly the opposite of that intended by the America Invents Act: more litigation, less certainty for inventors, and higher costs of innovation.

But the deeper constitutional problem is that the patent tribunal is taking away people’s property without adhering to our constitutional guarantees of due process, and that could have implications for other types of property rights as well. The PTAB is a constitution-free zone without jury trials, with strict limits on the evidence patent owners may present, and where virtually anyone can challenge a patent, opening the door to rampant abuse.  Rather than making the process more efficient, patent owners can now face challenges on two fronts – at both the PTAB and in the courts.  In an amicus brief for the CATO Institute and the American Conservative Union Foundation, Ilya Shapiro and Greg Dolin write that “the PTAB draws power away from the judicial branch in favor of the executive” and makes all decisions by the courts subject to “revision and modification by the executive branch” – raising serious constitutional issues.

For example, President Obama’s Director of the US Patent and Trademark Office has in some cases convened multiple PTAB panels until she got the result she wanted to invalidate a desired patent.  The tribunal has also permitted hedge fund managers to use the administrative process to manipulate the market, short-selling stocks and then filing challenges to induce a drop in stock prices. Challengers can also file repetitive attacks on the same patent, ironically increasing costs to the innovation economy instead of decreasing litigation costs. It’s a one-way ratchet: a win for a patentholder is still subject to repeated attacks, but a win for the challenger is final.

Imagine a world in which the ownership of your home faced the same risk – a disgruntled neighbor, ex-spouse, or frustrated would-be purchaser could attack your ownership rights repeatedly before a judge that views his job as “death-squadding” real estate titles and with procedures that favor the challenger. Such a system would dramatically increase the costs required to maintain one’s home, while the uncertainty clouding any title would lower the value of housing overall. That would be just as damaging to the housing market as it has been for the innovation economy.

The government’s chilling defense of the PTAB system is to claim that they don’t even owe patent owners due process in the first place, because patents are simply grants from the government and not private property. But that argument ignores centuries of history and Supreme Court precedent, and creates the danger of eroding property rights just as surely Kelo did.

The goal of the America Invents Act was a good one, aimed at bolstering the legitimate property rights of patent owners. But in this case the cure is worse than the disease and has created an out of control administrative tribunal that undermines constitutionally protected property rights. If the Supreme Court allows the government to start exempting whole categories of property from constitutional protection, we will all be the poorer for it.​

This Day in Liberal Judicial Activism—November 15

by Ed Whelan

2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

2015—In Adkins v. City of New York, federal district judge Jed S. Rakoff rules that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

Under Rakoff’s approach, he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools.

Judicial Nominations Update

by Carrie Severino

Senate Judiciary Committee Chairman Chuck Grassley continues to process nominees at a consistent pace. Last Thursday, five judicial nominees (including Greg Katsas, nominee to the especially significant U.S. Court of Appeals for the D.C. Circuit) were voted out of committee and joined the sixteen other judicial nominees currently awaiting Senate floor votes. Tomorrow morning, Senate Judiciary Committee hearings are scheduled for an additional six judicial nominees (including two nominees to the U.S. Circuit Court of Appeals for the Fifth Circuit, Don Willett and James Ho). Also tomorrow, Pamela Bresnahan, Chair of the ABA’s Standing Committee On The Federal Judiciary, will testify before the Senate Judiciary Committee about the ABA’s questionable rating of L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit.

Senate Majority Leader Mitch McConnell also continues to move judicial nominees and announced his intent to hold cloture and confirmation votes this week for two federal district court nominees.

Here is this week’s full update on federal judicial nominations.

Number of total current and known future vacancies: 161

Courts of Appeals: 23

District/Specialty Courts*: 138

Number of pending nominees for current and known future vacancies: 49

Courts of Appeals: 10

District/Specialty Courts: 39

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes

Courts of Appeals: 1

District/Specialty Courts: 20

Nominees Confirmed by the Senate

Supreme Court: 1

Courts of Appeals: 8

District/Specialty Courts: 4

This Day in Liberal Judicial Activism—November 14

by Ed Whelan

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Re: Telltale Talley Tally

by Ed Whelan

Yet more imposition of a double standard against federal judicial nominee Brett Talley:

The New York Times complains today that Talley “did not disclose on publicly available congressional documents that he is married to a senior lawyer in the White House Counsel’s Office.”

1. One good reason for Talley not to have included that information on his Senate questionnaire response is that it is not in fact responsive to any of the questions posed.

The article suggests that he should have mentioned his wife, Ann Donaldson, in response to the question (24.a) asking him to identify “family members … that are likely to present potential conflicts-of-interest.” It states that decisions by district judges “can put them at odds with the White House and its lawyers.”

But Talley, as deputy assistant attorney general in the Office of Legal Policy in the Department of Justice, will already have potential conflicts of interest that arise from his service in the Trump administration. In what foreseeable case is his wife’s role in the White House going to present a conflict that wouldn’t already exist?

The article states that Donaldson “has emerged in recent weeks as a witness in the special counsel’s investigation into whether Mr. Trump obstructed justice.” But who imagines that any litigation over that matter will be pursued in the Middle District of Alabama?

Further, the Senate Judiciary Committee has long been content with a nominee’s general statement to evaluate potential conflicts as they arise. To cite just one example: When President Obama nominated Cornelia Pillard to the D.C. Circuit, Pillard didn’t bother to note that her husband David Cole frequently litigates in the D.C. Circuit, and no one faulted her for failing to identify the potential conflict. So why the double standard with Talley?

The article also states that Talley “did not mention his wife when he described his frequent contact with White House lawyers during the nomination process.” Perhaps that’s because Talley’s “descri[ption] of his frequent contact with White House lawyers” was limited to this:

On July 12, 2017, I interviewed with attorneys from the White House Counsel’s Office and the Office of Legal Policy. Since then I have been in contact with officials from the White House Counsel’s Office and the Office of Legal Policy.

Perhaps that’s because of the unsurprising fact that, as an Administration source confirms for me, his wife played no role in his nomination process.

2. There was hardly any secret about the fact that Talley was married to White House lawyer Ann Donaldson. Above the Law reported on their marriage and on their positions in the Trump administration way back in April. Such information would surely have been in the FBI report available to senators and their staff.

Re: ABA Committee Smokes Grasz

by Ed Whelan

With respect to the ABA’s smearing of Eighth Circuit nominee Steve Grasz as “not qualified” (see my Parts 1, 2, and 3), I somehow missed this op-ed two weeks ago by senior federal district judge Richard G. Kopf. Kopf says he was “stunned” by the ABA’s report on Grasz, and he makes clear his strong disagreement with that rating. Kopf reveals that he advised the ABA that Grasz is “well qualified” for the nomination, and he further states (among other things) that Grasz “is by all accounts a brilliant and honorable person.”

Kopf’s assessment is particularly noteworthy because, as Kopf points out, his assessment of Grasz as well qualified “was based primarily upon his appearances before me when he served in the Nebraska Attorney General’s Office, and particularly regarding litigation over Nebraska’s abortion laws.” (Emphasis added.) Rejecting Grasz’s arguments, Kopf ruled that Nebraska’s ban on partial-birth abortion was unconstitutional, and (as he also points out) he wrote a law-review article taking issue with Grasz’s view of how the Supreme Court’s abortion precedents applied in this context.

In other words, Kopf wouldn’t be expected to be well disposed towards Grasz, and he is also very familiar with the matters that are at the heart of the ABA’s criticism. That he nonetheless regards Grasz as well qualified is worth far more than the ABA’s incompetent criticisms.

Telltale Talley Tally

by Ed Whelan

The work of a federal district judge involves specialized trial-related skills—e.g., managing the flow of a trial—so I think that it’s eminently sensible to want nominees for federal district judgeships to have substantial trial experience.

For that reason, I would not quarrel with those who object to the nomination to the district court of a thirty-something who has essentially no trial experience and who has been out of law school less than eleven years. Indeed, those objections are all the more weighty when that person has been nominated to one of the most challenging district courts in the country.

So, yes, there was plenty of reason to object to President Obama’s nomination of Alison Nathan to a federal district judgeship on the Southern District of New York in March 2011. But somehow there wasn’t any uproar back then. The American Bar Association’s judicial-evaluations committee smoothed the way, as it abandoned its own stated criteria in giving Nathan a majority “qualified” (and minority “not qualified”) rating. And the Senate confirmed Nathan’s nomination on a party-line vote.

Things are very different with President Trump’s nomination of Brett Talley to a judgeship on the Middle District of Alabama (in his eleventh year out of law school).

Abiding by its criteria this time, the ABA rated Talley “not qualified” on the ground that he “does not presently have the requisite trial experience or its equivalent.” (In its letter to the Senate Judiciary Committee, the ABA added that it “did not have any questions about Mr. Talley’s integrity or temperament” and that it “believes that, given the passage of time and the appropriate experience, Mr. Talley has great potential to serve as a federal judge.”)

The media have also piled on, with headlines in the New York Times and the Los Angeles Times both blaring that Talley “has never tried a case.” (Neither reporter, a Trump administration source tells me, bothered to request comment from the administration.)

There’s plenty of room to quibble over whether Nathan or Talley had greater experience. On the one hand, Talley’s two years as a clerk for a district judge gave him far greater exposure to the work of a federal trial court than Nathan’s four years as a back-office litigation associate. Further, in his two years as Alabama’s deputy solicitor general, Talley handled some of the most important litigation involving the state, including overseeing its participation in complex nationwide litigation in federal district and circuit courts. In addition to filing ten Supreme Court briefs, he also argued three appeals in the Eleventh Circuit and one in the state court of appeals. On the other hand, Nathan had more years of actual practice. (Some might also see her clerkship with Justice John Paul Stevens as a marker of exceptional quality; in this regard, I’ll note that folks whose judgment I trust tout Talley’s abilities as extraordinary.)

My point here, though, is not to argue that Talley is objectively more qualified for his nomination than Nathan was for hers. Nor will I argue here against those who regard both to have had a deficient level of trial experience. But (the ABA committee notwithstanding) I don’t think it plausible to maintain that the line between sufficient experience and deficient experience runs between Nathan and Talley. Nor would I foreclose the possibility with Talley, any more than others foreclosed it with Nathan, that extraordinary ability might well offset such a deficiency. In any event, the double standard on the Left is not something that should be tolerated or acquiesced in.

This Day in Liberal Judicial Activism—November 13

by Ed Whelan

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

This Day in Liberal Judicial Activism—November 12

by Ed Whelan

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

This Day in Liberal Judicial Activism—November 11

by Ed Whelan

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.

Former Liberal Activist Judge Criticizes Trump Judicial Nominees

by Carrie Severino

Yesterday, former U.S. District Court Judge for the Southern District of New York Shira Scheindlin authored an op-ed in the New York Times lambasting President Trump’s judicial nominees, proclaiming them to be “crazy choices” who are “outside the mainstream.” Scheindlin’s op-ed is replete with factual inaccuracies and misrepresentations about President Trump’s judicial nominees and their records. One whopper is that liberals accepted most of President George W. Bush’s nominees “as credible and qualified” when in fact they waged wholesale, indiscriminate filibusters of his circuit court nominees—opposition so intense that it marked an unprecedented level of obstruction to the judicial nomination process.

Most ironic though is Scheindlin’s assertion that President Trump’s nominees have “demonstrated a willingness to overturn longstanding judicial decisions.” Scheindlin, an appointee of President Clinton, is one of the most activist federal judges in modern history. While presiding over a stop-and-frisk case in 2013, she was notoriously rebuked by the a three judge panel of the U.S. Court of Appeals for the Second Circuit for her “appearance of impartiality surrounding [the] litigation” in giving a “series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” The Second Circuit panel found that Scheindlin violated the Code of Conduct for United States Judges and ordered her removal from the case.

But let’s turn to the substance—if one can call it that—of Scheindlin’s op-ed. First and foremost, President Trump’s outstanding judicial nominees have been repeatedly praised and are considered to be one of the greatest successes of his presidency to date. Jonathan Adler, a member of the group “Writers and Scholars Against Trump” and no ally of the President, has described the President’s nominees as “impressive” and “incredibly strong.” President Trump’s nominees to the U.S. Courts of Appeal include numerous former Supreme Court clerks, current state and federal jurists, reputed academics, and attorneys with extensive experience in private practice and at the highest levels of government. Scheindlin claims that Senators Kennedy and Cornyn have expressed “dismay” about the President’s nominees, yet both Senators have voted in support of each and every one of the President’s judicial nominees to date—both within the Senate Judiciary Committee and on the Senate floor in confirmation votes.

Among Scheindlin’s misleading claims is that the President’s judicial nominees will refuse to follow binding precedent. In support of this argument, Scheindlin cites U.S. Court of Appeals for the Sixth Circuit Judge John Bush’s past critique of the Supreme Court’s opinion in Roe v. Wade and U.S. Court of Federal Claims nominee Damien Schiff’s past criticism of the Court’s ruling in Grutter v. Bollinger. Scheindlin suggests that, because a nominee has criticized the reasoning of a Supreme Court decision in his or her capacity as a private practitioner or scholar, that nominee necessarily will refuse to follow precedent if confirmed to the bench. This is an unwarranted leap in logic and an unfair accusation. On the contrary, during their respective Senate Judiciary Committee hearings, each of the President’s nominees testified that he or she would faithfully apply all binding and applicable precedents.

Scheindlin asserts that L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit is among the “least qualified” and most “bizarre” of President Trump’s nominees, referencing his “not qualified” rating from the American Bar Association. I’ve written previously about the illegitimacy and bias of the ABA rating process in general, and the problems with the Grasz rating in particular. Last week Senate Judiciary Committee Chairman Chuck Grassley said that Grasz’s ABA rating is “very surprising” given the fact that Grasz appears to be “eminently qualified” to be a federal court of appeals judge and has called the ABA to testify to the Committee about its process in rating Grasz.  Scheindlin further suggests that Grasz’s affiliation with the Nebraska Family Alliance, a faith-based organization, renders him unqualified to serve as a federal judge. With this criticism, Scheindlin joins the ranks of those who seem to believe that religious tests for public office are appropriate notwithstanding the Constitution’s specific prohibition in Article VI.

Some of Scheindlin’s most egregious misrepresentations relate to the nomination of Amy Coney Barrett, now judge for the U.S. Court of Appeals for the Seventh Circuit. Scheindlin’s op-ed claims that, “In a 1998 article, [Barrett] criticized the Supreme Court Justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith.” As Judge Barrett herself explained during her hearing before the Senate Judiciary Committee, and John Garvey, the co-author of the 1998 law article has written, Scheindlin’s summarization of Barrett’s and Garvey’s article could not be more wrong. On the contrary, the article argues that Catholic judges who morally disagree with the death penalty have an obligation to recuse themselves from cases if they are unable to render a decision in conformity with the facts and the law. According to Barrett and Garvey, “There is a real moral cost to undermining the legal system, even in small ways.”

Scheindlin’s invocation of Justice Brennan is particularly head-scratching when one considers that the liberal icon, going a step beyond the limited context of Barrett’s article, issued numerous dissents from denial of certiorari because of his moral views on the issue despite the clear legality of the death penalty. Moreover, Brennan was part of the Court that summarily rejected a claim in Baker v. Nelson (1972) of a constitutional right to same-sex marriage, deeming it insufficiently serious to warrant a judicial opinion. Brennan would have failed Scheindlin’s litmus test.

Scheindlin further contends that Judge Barrett “has stated that judges need not adhere to precedent if they believe a case was wrongly decided.” This is a gross misrepresentation of Judge Barrett’s scholarly work and directly contradicts her sworn testimony to the Senate Judiciary Committee about her perception of her own role a circuit court judge. As a law professor at Notre Dame, Barrett wrote several law review articles about stare decisis, arguing that the Supreme Court should take a more flexible approach in balancing various Constitutional concerns. But at her hearing in September, Barrett was very clear that she views circuit court judges as bound by Supreme Court precedent, testifying: “I understand circuit judges to be bound absolutely by the precedent of the Supreme Court. The obligation is absolute.”

Without any substantiation, Scheindlin speculates that U.S. District Court nominee Thomas Farr’s previous nomination by President George W. Bush was “probably” not advanced by the Senate Judiciary Committee “because of his longstanding ties to racist politicians, and because of his opposition to voting rights, workers’ rights and economic inequality.” Farr was first nominated in December 2006 immediately following the Democratic takeover of the U.S. Senate and then re-nominated in 2007 after his 2006 nomination expired with the 108th Congress. Another possible explanation for Farr’s lack of advancement beyond the Senate Judiciary Committee: A decades-long pattern of obstructionism by Senate Democrats. Scheindlin writes that President Trump’s “judges and nominees do not reflect mainstream traditions and values.” But it is really the Senate Democrats (and Scheindlin herself) who are out of the mainstream. For the first time in history, the minority party has indefensibly required a cloture vote for nearly every single one of the President’s judicial nominees, attempting to waste as much floor time as possible. Senate Majority Leader Mitch McConnell has demonstrated that the Democratic minority’s obstructionist tactics will not prevail and that President Trump’s well-qualified nominees will be confirmed.

This Day in Liberal Judicial Activism—November 10

by Ed Whelan

1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.

2016—Oregon federal district judge Ann L. Aiken submits a strong entry for the most pervasively lunatic ruling ever. In Juliana v. United States, she denies the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.

Scalia Speaks Events Next Week in Minnesota and D.C.

by Ed Whelan

I have a slew of events on Scalia Speaks next week, including:

On Tuesday, November 14, I’ll be in Minneapolis for a lunchtime event sponsored by the University of St. Thomas law school chapter of the Federalist Society. UST law professor (and not-frequent-enough Bench Memos blogger—hint, hint) Mike Paulsen will join me in the discussion.

At 5:30 that evening, the Minnesota lawyers chapter of the Federalist Society will host me at Kieran’s Irish Pub—a great locale for me to read excerpts from Justice Scalia’s hilarious speech on the Italian view of the Irish. (My remarks will probably begin closer to 6:00.) RSVP to [email protected]

On Wednesday, November 15, my co-editor Christopher Scalia and I will discuss the book in a 6:00 event at the Catholic Information Center in D.C.

Chris and I will have booksigning tables next Friday at the Federalist Society’s national lawyers convention.

And on Saturday, at 4:30 p.m., we will take part in the final session of the Federalist Society’s convention, a panel discussion with three other former Scalia clerks: Sixth Circuit judge Jeffrey S. Sutton, NYU law professor Rachel Barkow, and a special surprise, yet-to-be-announced panelist. A booksigning will follow that panel.

Abortion Shenanigans—Contra Lederman, Part 2

by Ed Whelan

A few more (non-exhaustive) criticisms—numbered serially from my Part 1 post—of law professor Marty Lederman’s slam of the Solicitor General’s certiorari petition in Garza v. Hargan:

5. Lederman claims that the government offers only a “threadbare (at best)” argument in support of its substantive position. He claims (in italics) that the SG “does not cite a single legal authority” in support of its argument. But he quotes only the paragraph from its summary of argument (not the usual place for citations) and buries in a footnote that few readers will find that the SG later cites “four precedents … for the unremarkable proposition that ‘the government generally need not facilitate abortions.’” So if this proposition is so “unremarkable,” why would Lederman expect lengthy legal argument?

6. Lederman claims that the district court’s injunction did not require the government to “facilitate” an abortion but instead “was, for all relevant purposes here, entirely prohibitory.” But his claim assumes that HHS could responsibly have surrendered custody of Doe. As the SG’s petition argues (in a passage Lederman does not acknowledge or engage):

As the ORR’s Deputy Director for Children’s Programs explained, authorizing Ms. Doe to attend such appointments [i.e., appointments for the counseling session required under state law and for the abortion] would entail facilitating an abortion. HHS or shelter staff would need to (and did) attend trips to any appointment to maintain ORR’s custody of Ms. Doe. And even if HHS or the shelter did not transport Ms. Doe to the abortion clinic, approval would still require that HHS devote time and staff towards drafting and executing approval documents and providing direction to the shelter on its role in connection with the procedure, and would require that HHS expend resources to monitor Ms. Doe’s health after the abortion.

Here as elsewhere, Lederman simply quotes Judge Millett’s opinion as though her position were beyond dispute. (He also seems to imagine that the government is making an argument about moral complicity.)

7. Lederman dismisses out of hand the government’s argument that Doe “could have left government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor.” Among other things, he somehow thinks that the proposition that Doe “could not have obtained an abortion in her home country” means that the federal government must enable her to obtain one here. But surely the laws enacted in foreign countries are no proper part of the inquiry whether the federal or state governments have imposed an “undue burden” on the ability to obtain an abortion. Or is our country supposed to become the abortion mecca for pregnant minors around the world?

8. Lederman maintains that “there is no reason for the Court to grant” certiorari, given the absence of a circuit split and other factors (including his mistaken claim—see point 1 of my Part 1 post—that the D.C. Circuit’s order was limited to the “question of whether a stay pending appeal should be granted). Somehow I suspect that if the D.C. Circuit had ruled the other way, Lederman would be clamoring for certiorari. In any event, the magnitude of the issue for HHS’s future handling of immigrant minors, the threat that the ruling below will make our country a magnet for pregnant immigrant minors, and the shenanigans in this case make it a worthy candidate for a grant (and for the simple Munsingwear vacatur that the SG requests).

9. Lederman posits at the outset the “oddity” that “so many [career] attorneys apparently declined to [sign and thus to] be associated with” the SG’s certiorari petition. But there turns out to be very little or nothing underlying his observation.

For starters, the four lawyers on the petition with whom I am familiar are all lawyers of high reputation, and the other two, as Lederman acknowledges, are in fact career lawyers.

Lederman complains that no lawyers from HHS signed the petition, but I’m told that it’s not unusual for there to be no HHS signatory on a certiorari petition. (A quick Internet search yielded this one and this one, both without HHS signatories.) [12:35 p.m.: I’ve slightly modified the second clause of the first sentence of this paragraph.] 

So the “so many” attorneys who declined to sign end up being reduced to one possible Assistant in the Solicitor General’s office.

On this possibility, a former attorney in the Office of the Solicitor General advises me that “in circumstances of extraordinary expedition, it is not unprecedented for a Deputy SG to write a filing himself.” (Lederman contends that “would be a significant deviation from ordinary practice.”) Further, two of the signatories on the petition—including the Deputy SG—are former Assistants themselves. So if no current Assistant was assigned to work on the petition, no Assistant would sign it.

But perhaps an Assistant was assigned to the petition. If so, Lederman insinuates, one of the “several Republican and conservative attorneys” in OSG must have declined to sign it. But he fails to contemplate another possibility—that a liberal assistant was assigned to the matter and for craven personal reasons (such as not being subjected to the sort of abuse that Lederman is flinging), rather than out of sound professional judgment, declined to sign.

Abortion Shenanigans—Contra Lederman, Part 1

by Ed Whelan

In a post on Tuesday, I highlighted some of the extraordinary developments in Garza v. Hargan, the case involving an unaccompanied pregnant alien minor (Doe) who, in federal custody, obtained an order requiring the federal government to enable her to have an abortion. In a very long (8000-word) blog post, law professor Marty Lederman slams the Solicitor General for filing a certioriari petition that he claims is “fundamentally a press release, for an audience other than the Justices of the Supreme Court itself.”

As I will show, Lederman’s one-sided and tendentious critique is rife with errors, distortions, and unfounded innuendo. I’ll try to be brief:

1. Lederman claims that the en banc D.C. Circuit’s order merely “denied the government’s motion to stay a preliminary injunction” and therefore “should have no precedential effect even in this case, let alone in future cases.” Therefore, he argues, there is absolutely no reason for the SG to have filed its certiorari petition.

But the SG argues that the en banc order “also affirmed the substance of the district court’s injunctive relief,” and it points out that the order “remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction” and also invoked its “jurisdiction over this appeal.”

Lederman doesn’t acknowledge the SG’s argument, much less dispute it. And somehow I don’t think that he’ll be disputing the ACLU in the future when it invokes the D.C. Circuit order as precedent.

To be sure, the en banc D.C. Circuit did not bother (as the SG points out) to “specify its precise reasoning,” but that’s a criticism that should be leveled at the D.C. Circuit majority, not an argument against its order having any precedential effect.

2. Lederman grossly misleads his readers as to the nature of the SG’s certiorari petition. He emphasizes early on that the case is moot (now that the abortion has already taken place), and he pretends to score a point by stating that the SG’s petition itself “acknowledges” the mootness. Who are these yahoos, he would have his readers wonder, who are asking the Supreme Court to review the substantive merits of a case that they concede is moot?

It isn’t until more than halfway through his very long post that the persevering reader will first get a hint that the SG’s petition isn’t in fact seeking the Court’s full substantive review but is instead requesting only that the Court vacate the judgment below on so-called Munsingwear mootness grounds. In other words, mootness, far from being something that the petition merely “acknowledges,” is the very foundation of the limited relief that it is seeking.

3. Lederman is baffled by the petition’s supposedly “obsessive, misguided focus” on the misleading statements by Doe’s counsel that led to her having the abortion before the federal government filed its emergency application in the Supreme Court for a stay of the D.C. Circuit’s order. But there should be nothing baffling here. Vacating a ruling on Munsingwear grounds invokes the Court’s equitable power, and the argument that Doe’s team of lawyers bamboozled the government’s lawyers into delaying the filing of their stay motion until after the abortion occurred is plainly relevant to the exercise of that power.

4. Lederman’s defense of the conduct of Doe’s lawyers is feeble. Lederman accepts that Doe’s team informed the government on the evening of October 24 that the abortion “could not occur” (Lederman’s phrase) until the morning of October 26. In this context, Lederman’s effort to defend other statements by the team as anything other than deeply deceptive fails.

Consider, if you will, if something similar had happened in the death-penalty context: On October 24, lawyers for the capital convict inform the state’s lawyers that they intend to file an emergency motion for stay in the Supreme Court. On the evening of October 24, state lawyers tell the lawyers for the capital convict that the execution will not take place until the morning of October 26 because a medical exam required to occur 24 hours before the execution can’t occur until the morning of October 25. In reliance on that representation, the lawyers for the capital convict decide to file their stay application on the morning of October 25. Then, unbeknownst to them, the state’s lawyers determine that an early medical exam satisfies the requirement and proceed with the execution early in the morning of October 25. Would anyone defend the state’s lawyers by the sort of quibbling that Lederman engages in? Of course not. (To be sure, you might argue that the state’s lawyers in my hypothetical have a higher duty, but Lederman whitewashes the conduct of Doe’s lawyers altogether.)

More in Part 2.

This Day in Liberal Judicial Activism—November 9

by Ed Whelan

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing.

Abortion Shenanigans

by Ed Whelan

More than three decades ago, Justice O’Connor observed in her dissent in Thornburgh v. American College of Obst. & Gyn. that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, six years later in Planned Parenthood v. Casey, O’Connor would indulge in the same ad hoc nullification of legal rules that she had decried.

Even for those of us accustomed to the abortion distortion, the recent events in Garza v. Hargan were quite a surprise. That case concerned an unaccompanied pregnant alien minor who was apprehended unlawfully entering the United States, who declined to request voluntary departure to her home country, and who, not having secured a sponsor, remained in federal custody. Intent on having an abortion and having already obtained the judicial bypass to the parental-consent requirement under Texas law, the minor, represented by the ACLU, sued and obtained a temporary restraining order that required the federal government to transport her promptly to the nearest abortion provider both for the counseling required under state law at least 24 hours in advance of the abortion and for the abortion itself.

I won’t summarize the entire procedural history of this case (see pp. 2-17 of the government’s certiorari petition, if you wish), but will instead highlight two sets of developments:

1. On October 20, a divided panel of the D.C. Circuit vacated the TRO that the district court had entered and instead allowed the government until October 31 to secure a sponsor to whom the minor could be released. Two days later (October 22), at 10 p.m.—yes, p.m.—the ACLU filed an emergency motion for en banc rehearing with the D.C. Circuit. One hour later, at 11 p.m., the D.C. Circuit granted the order and gave the government until 11 a.m. the next morning (October 23) to file its response. In other words, with no advance notice, the court obligated the government lawyers to work overnight to respond the very next morning to a motion filed late at night.

Then, on October 24, without even holding oral argument, the en banc court, by a vote of 6 to 3, vacated the panel majority’s order and reinstated the TRO. An hour later, the ACLU filed an emergency motion in the district court to amend the TRO to require the government to make her immediately available for counseling and an abortion. Without even giving the government an opportunity to respond, the district court promptly granted the motion.

In a lengthy footnote in his dissent from the en banc ruling, Judge Kavanaugh explains why the court shouldn’t have granted en banc review in the first place. The initial panel order was unpublished and therefore, far from presenting a “question of exceptional importance” (under the usual standard for en banc rehearing), “constituted no legal precedent for future cases.” Further:

The panel was faced with an emergency motion involving an under-developed factual record that is still unclear and hotly contested. Indeed, the parties have submitted new evidence by the hour over the past two days – none of which was presented to the panel. The panel’s unpublished order recognized Jane Doe’s interests without prematurely requiring the Government to act against its interests. The panel decision was prudent and reasonable, given all of the circumstances. Indeed, as noted above, the Government represents that, while difficult, it is possible for Jane Doe to obtain a sponsor by “5:00 P.M. Eastern on October 31, 2017.” This case, as handled by the three-judge panel, therefore was on a path to a prompt resolution that would respect the interests of all parties – until the en banc Court unwisely intervened.

2. The government planned to seek an emergency stay from the Supreme Court. After the ACLU represented that the abortion would not take place until October 26, the government informed the Court and the ACLU that it would file its emergency application for a stay on the morning of October 25. The minor instead scheduled her abortion for 4:15 a.m.—yes, a.m.—on October 25. (I refer the reader to section 7 of the government’s cert petition, at pages 11-16, for a detailed account.) By the time that the government had stated it would file its emergency application, the abortion had already taken place.

For the Left, it’s abortion über alles.

By the way, the legal director for the ACLU, who was very active in this litigation, is David Cole. Cole is also the husband of D.C. Circuit judge Cornelia Pillard, so his involvement in the case explains why Pillard recused herself.