The Senate unanimously confirmed U.S. Patent & Trademark Office deputy general counsel Edward Chen to a seat on the U.S. Court of Appeals for the Federal Circuit today, BLT reports.  At the same time, the Senate Judiciary Committee approved the nomination of Patricia Millett to the U.S. Court of Appeals for the D.C. Circuit on a 10-8 party-line vote.  In other nomination news, How Appealing notes press reports indicating the President nominated two partners from the firm Munger, Tolles & Olsen — Michelle Friedland and John Owens — to seats on the U.S. Court of Appeals for the Ninth Circuit, and Kansas Supreme Court Justice Nancy Moritz to the U.S. Court of Appeals for the Tenth Circuit.  There’s no announcement of these picks yet on the White House website.

1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 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.”

2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

Last Friday, a divided Third Circuit panel ruled that “for-profit, secular corporations cannot engage in religious exercise” and on that basis affirmed a misguided district court ruling that denied preliminary injunctive relief to plaintiffs challenging the HHS mandate under the federal Religious Freedom Restoration Act and the First Amendment. The panel ruling creates a conflict with the en banc Tenth Circuit’s ruling one month ago in the Hobby Lobby case and thus substantially increases the prospect that the Supreme Court will soon address the issue.

The particular plaintiffs in this case are Conestoga Wood Specialties Corporation and the five members of the Hahn family who together own 100% of Conestoga’s shares and each of whom is a member of Conestoga’s board of directors.

Some observations:

1. I’ve previously highlighted law professor (and Becket Fund lawyer) Mark Rienzi’s essay and law-review article explaining that “there is no principled basis for excluding profit-making businesses and their owners from the protection of our religious liberty laws.” In his extensive dissent, Third Circuit judge Kent Jordan does an excellent job of dismantling the majority’s reasoning. As Volokh Conspirator Will Baude puts it, “the majority’s reasoning is pretty strange,” for what it says about the religious corporations known as churches “cuts against everything it has just said about corporations not having ‘beliefs’ or ‘religiously-motivated actions separate and apart’ from their members.”

2. As for the individual plaintiffs: The Third Circuit majority fails to keep in mind the Hahns’ dual roles as shareholders of Conestoga and as members of Conestoga’s board. Referring only to the Hahns as Conestoga’s “owners,” the Third Circuit majority argues that the claim that they have religious-liberty rights “rests on erroneous assumptions regarding the very nature of the corporate form.” It likewise contends that the HHS mandate “does not actually require the Hahns to do anything.” (Emphasis in original.) But the HHS mandate in fact requires that the Hahns, as Conestoga’s board members, comply with its terms in operating Conestoga. In other words, it constrains how the Hahns exercise their authority as board members in conducting Conestoga’s operations. And by virtue of their other role as owners, the Hahns face a substantial economic penalty if they fail to operate Conestoga consistent with the HHS mandate.

(It is no answer to say that the Hahns could escape the compulsion of the HHS mandate by resigning from Conestoga’s board. As the Supreme Court made clear in Sherbert v. Verner, the question under the Free Exercise regime that RFRA restored as a matter of federal statutory law is not limited to whether a law “directly compel[s]” a person to act contrary to his religious beliefs but extends as well to “indirect” burdens.)

3. Given the conflict between the Third Circuit and the Tenth Circuit, the Supreme Court will likely soon have the opportunity to address whether for-profit corporations have the capacity to engage in religious exercise for purposes of RFRA and the First Amendment. If it decides (as it should) to address that question, the Court should invite full briefing on the intertwined question whether the individuals who own the shares of a closely held corporation and sit on its board of directors (or who similarly exercise ultimate policymaking authority for the corporation) have religious-liberty rights in the corporation’s operation by virtue of those dual roles.

That’s Norwegian, apparently, for “See you later!” I’ll be heading across the Atlantic tomorrow in order to take part in National Review’s cruise of the Norwegian fjords, so my blogging over the next ten days or so will be very light.

To those NR cruisers who are Bench Memos readers: I invite you to say hello. And lest you be scandalized by the fact that I will be accompanied by a beautiful young lady who is not my wife, I will be pleased to introduce you to my daughter.

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

1973—In issuing a permanent injunction on July 25, 1973, against U.S. military operations in or over Cambodia, federal district judge Orrin G. Judd sets this day as the effective date of the injunction. The order comes in litigation brought by Congresswoman Elizabeth Holtzman against Secretary of Defense James Schlesinger. But this same day a Second Circuit panel stays Judd’s order, thus setting the stage for the hijinx to come (see forthcoming This Day entry for August 4) from Justice William O. Douglas.

Ed Whelan had an excellent appearance on Fox News yesterday on Cornelia Pillard and President Obama’s D.C. Circuit court-packing plan.

As I have written before, and Ed Whelan has documented in detail, President Obama’s ongoing effort to confirm three new judges to the D.C. Circuit is little more than a naked attempt to pack the Court with activists who will rubber stamp his unconstitutional administrative agenda. The Court already has the lowest caseload in the nation, and, if anything, trends show that their workload is decreasing.

At yesterday’s Senate Judiciary Committee hearing, Senator Grassley underscored that point by releasing information he received directly from the D.C. Circuit’s judges, who submitted anonymous feedback on the question of whether the court needs more judges. According to one judge:

“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time.  . . .  If any more judges were added now, there wouldn’t be enough work to go around.”

Another judge wrote that:

 “The Court does not need additional judges for several reasons.  For starters, our docket has been stable or decreasing, as the public record manifests.  Similarly, as the public record also reflects, each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.”

This low workload, according to the judges, is due in large part because of the “extraordinary number of sitting senior judges (six) who are actually younger than the average age of U.S. senior judges.” Another judge predicted that those senior judges were young and healthy enough that they would likely serve another decade or more.

In a letter to Senator Grassley, the D.C. Circuit’s Chief Judge, Merrick Garland, confirmed these trends. As the Wall Street Journal explained in an editorial:

D.C. Circuit Chief Judge Merrick Garland recently provided numbers from the court’s docket that give a clearer picture of overall case load of the court as well as the role played by judges who take senior status but continue to hear cases. The letter makes clear that the Democratic rush to confirm nominees is based on political hype, not judicial need. . . . Put together, the six senior judges who hear oral arguments carry the approximate work load of 3.25 full time active judges, according to the D.C. Circuit Court. That leaves the court currently with the equivalent of roughly 11.25 full-time judges, which means more than enough judges to hear the available cases, and far cushier than busier appellate courts whose vacancies have been a lesser priority for the White House.

Senator Grassley and Representative Tom Cotton have filed legislation to eliminate the three unnecessary judgeships from the D.C. Circuit, and Senator Grassley’s version of the legislation would move them to other circuits where judges are dealing with very high caseloads. I hope they will be joined by other members of Congress who appreciate the importance of preserving the impartiality of our judicial system.   

This past Monday, a federal district court in Ohio entered an order barring the state of Ohio from applying its marriage laws that prohibit legal recognition of same-sex “marriages.”

Judge Timothy S. Black proclaims at the outset of his order that “This is not a complicated case.” For him, it’s dispositive, under the Supreme Court’s recent ruling against the federal Defense of Marriage Act in United States v. Windsor, that Ohio’s non-recognition of legal marriages of same-sex couples is an exception to its historical practice of providing that the validity of a marriage under Ohio law “is determined by whether it complies with the law of the jurisdiction where it was celebrated.” Judge Black reads Windsor to stand for the broad proposition that “there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal.”

Justice Kennedy’s gaseous and gauzy rhetoric in Windsor is surely sufficiently indeterminate to permit Black’s reading. But I don’t think that the question in the case is nearly as simply as Black maintains. And, unless and until the Supreme Court clearly says otherwise, basic principles of federalism arguably ought to compel the lower federal courts to adopt the reading of Windsor that is most respectful of state authority.

The argument that Black never confronts is that Windsor recognizes (even as it misapplies—see point 4 here) the principle that “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” As the Court has previously put it, in a passage that Windsor quotes with approval, “Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” 

It ought to follow from that principle that a state, in determining which out-of-state marriages to recognize, has broad authority to regard some components of marriage as essential and others as incidental. There is, therefore, no inconsistency between Ohio’s general practice of regarding age of consent and degrees of consanguinity as (within certain bounds) incidental and its view that the male-female component of marriage is essential.

Under Black’s analysis, it would seem that Ohio is obligated to recognize any marriage that any other state allows—including, for example, polygamous marriages and incestuous adult marriages.

Power Line’s Paul Mirengoff, who attended yesterday’s Senate Judiciary Committee hearing on the nomination of Georgetown law professor Cornelia Pillard to the D.C. Circuit, has written two excellent posts (here and here) discussing Pillard’s “astonishingly disingenuous” testimony. I caught most of the hearing online and share Mirengoff’s overall assessment. I will be eager to add some specific criticisms of my own once I am able to review the hearing transcript.

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

Apart from the law-review article that I discussed in Parts 2, 3, and 4, I’ve made only a start in reviewing the extensive record of Georgetown law professor, and very recent D.C. Circuit nominee, Cornelia Pillard, whose Senate Judiciary Committee hearing Democrats are eager to cram through this Wednesday. I’m headed out of town today, so I’ll just add these two notes:

1. In response to the two sharply negative testimonials that I highlighted in my Part 2 post, I received this similar assessment from a third person who has known Pillard for over 25 years: “If confirmed, I’d guess she’d be the most left-wing judge in the history of the Republic.”

2. In a September 2011 press briefing for Georgetown’s Supreme Court Institute, Pillard discussed the then-pending (and soon-to-be-argued) case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC. Among other things, Pillard (according to her prepared text) said that the case “strikes [her] as a strong case for the employee” and that “the big news will be if the Court decides it for the Church.” She labeled the Lutheran Church’s position “a substantial threat to the American rule of law.”

As it turned out, of course, on the fundamental question of religious liberty as stake in that case, the Supreme Court ruled unanimously in favor of the church entity. So that’s further confirmation that Pillard is well to the left of all nine justices.

That’s Frank Schubert’s apt assessment, in this Public Discourse essay, of the litigation against California’s Prop 8.

As Schubert points out, if the issue at stake weren’t such a cause célèbre, that assessment would be shared by nearly everyone.

2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006. 

1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.” Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

Mississippi is one of around a dozen states I’ve never visited. That will change next week, as I’ll be in Jackson on Tuesday, July 23, to speak on the Supreme Court’s marriage cases. The lunchtime event is jointly sponsored by the Jackson lawyers chapter of the Federalist Society and by the Mississippi Center for Public Policy. More information is available here.

Continuing my look at Sarah Posner’s American Prospect piece on the Hobby Lobby case (see Part 1).

As with her medical expert, Posner turns to just one side’s expertise on the legal issues in the HHS mandate controversy.  Here is her one really substantive paragraph on the issues in the Hobby Lobby case:

Corporate plaintiffs, including Hobby Lobby, have argued that the Supreme Court’s 2010 decision in Citizens United v. FEC, which recognized free-speech rights for corporations, bolstered their claim that corporations have rights under the Free Exercise Clause. But Marty Lederman, a professor at Georgetown University Law School and an expert on religious-freedom issues, said that the free-speech ruling does not translate to the free exercise context. “It’s not at all obvious that a for-profit corporation can be injured in that way—a corporation doesn’t have a conscience, or religious obligations,” Lederman said.

Now Marty Lederman is a perfectly respectable expert to whom to turn on these questions, but he ought to be embarrassed to be Posner’s source here (and perhaps he is, if she only used the “best” parts of what he said from her perspective).  First of all, the Tenth Circuit explicitly declined to reach any constitutional question in Hobby Lobby’s case, resting its ruling in the company’s favor (in a still quite preliminary stage of the litigation) entirely on the statutory norms of the Religious Freedom Restoration Act.  That act protects the rights of “persons” to religious freedom, but does not specifically either include or exclude corporations from the category of “persons.”  In a compellingly reasoned opinion on this point, however, the majority noted comparisons to other statutes and concluded that “Congress knows how to craft a corporate religious exemption [i.e., leaving some or all corporations unprotected by the statute], but chose not to do so in RFRA.”  Hence whatever might be said about how translatable the Citizens United holding is from the free speech context to the religious freedom context–moving from one constitutional clause to the other–the statutory inclusion of corporations as persons in RFRA is not easily disputed.

But let us have a look at the constitutional claim Prof. Lederman makes here.  He doubts that “a for-profit corporation can be injured” with respect to the free exercise of religion, because “a corporation doesn’t have a conscience, or religious obligations.”  Why, first of all, does he suppose there is some difference, relevant for constitutional reasoning, between a for-profit corporation and a nonprofit one?  Churches themselves are typically incorporated.  Can such corporations “have a conscience, or religious obligations”?  If they can, why can’t a for-profit corporation?  (And isn’t it part of the standard kit bag of the left to complain of corporations that behave as though they have no conscience, and to praise the ones they think have one–as though the very thing were possible that Lederman calls into question?  Or is it possible for ExxonMobil to have a conscience about the climate, but not for Hobby Lobby to have one about abortion?)

Let’s grant for a moment that no corporation–or even simply no for-profit corporation–can “have a conscience, or religious obligations.”  If that is true, it is difficult to see how they can have opinions, which by parity of reasoning would belong only to natural persons or individuals.  But the fact that corporations are capable of having opinions–and the right to express them–is at the heart of Citizens United.  It may be that Prof. Lederman would like to toss the Citizens United precedent on the ash heap.  But if it is relevant precedent for the question of who has First Amendment rights, then its logic rather supports Hobby Lobby than the reverse.

Prof. Lederman probably knows the arguments against his own view, ably presented by Prof. Mark Rienzi of Catholic University law school (also co-counsel on this case) in a recent law review article.  He may even have answers to those arguments.  But Sarah Posner has no interest, it seems, in presenting that other point of view.