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This Day in Liberal Judicial Activism—December 25


1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

Judicial Restraint Undetectable by Ultrasound?


Fourth Circuit judge (and Reagan appointee) J. Harvie Wilkinson III presents himself as a champion of judicial restraint, so I’m surprised and disappointed to read his panel opinion yesterday holding that a North Carolina statute that (in his summary) “requires physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions” violates the First Amendment speech rights of abortionists.

To be clear, I am certainly not maintaining that principles of judicial restraint always forbid striking down legislation. What, on first read at least, I find troubling is that Wilkinson, adopting a vague and manipulable standard of review, seems to make all sorts of unforced twists and turns to reach his destination. In so doing, he rejects contrary rulings from the Fifth Circuit and the Eighth Circuit.


Re: Filibuster Delusions


Last Friday, I explained why Jonathan Bernstein’s claim that Senate Republicans should be deemed to have filibustered “everything” from 2009 forward was, to put it bluntly, nuts. In his BloombergView column yesterday, Bernstein tries to strike back. But he whiffs badly.

Let’s consider his arguments one by one:

1. I stated in my post that defeated cloture motions were “a much sounder measure of actual filibusters” than Bernstein’s absurd inclusion of “everything, of all nominations and bills since 2009. Stripping my statement out of context, Bernstein contends that I was adopting a definition of filibuster that wouldn’t count “Strom Thurmond’s famous record-breaking filibuster” and that that shows that “something’s gone horribly wrong in [my] analysis.”

Two simple points in response:

a. All I said is that defeated cloture motions are “a much sounder measure of actual filibusters” than Bernstein’s absurd measure. It’s an utter diversion to contend that the number of defeated cloture motions doesn’t fully capture everything that might fairly be called a filibuster.

By analogy: It’s as though Bernstein alleged that number of pitches thrown is the proper measure of pitching excellence; I responded that ERA is a much sounder measure; and Bernstein replied that ERA across pitchers doesn’t fully take into account differences between the National League and the American League. His reply may well be right, but it has no bearing on my point that ERA is a much sounder measure of pitching excellence than number of pitches thrown is.

b. I don’t think that I have ever maintained that defeated cloture motions necessarily provide the exclusive measure of filibusters. On the contrary, I have quoted, without objection, the Congressional Research Service’s statement that “Filibusters may occur without cloture being sought.” So I’m very open to the possibility that there may be things other than defeated cloture motions that ought also to count as filibusters. (And I also readily acknowledge that there are forms of obstruction other than filibusters.)

So if Bernstein wants to abandon his absurd measure and instead add so-called speaking filibusters in with defeated cloture motions, I certainly wouldn’t object. (That said, Bernstein seems to have learned his Senate procedure from “Mr. Smith Goes to Washington” if he imagines that a speaking filibuster is an effective measure of obstruction, much less the epitome of what a filibuster is. Senator Thurmond’s “famous record-breaking filibuster” lasted only 24 hours and 18 minutes and was ineffective in obstructing passage of the Civil Rights Act of 1957. Defeated cloture motions can kill nominations or delay them for months or years.)

2. Bernstein contends that the number of defeated cloture motions fails to take into account nominations on which the majority leader won’t “bother calling for a cloture vote” because he doesn’t have the votes to prevail. He cites the Second Circuit nomination of Robert N. Chatigny as an example of someone “who had the support of a simple majority but not 60 votes” and who “never had any floor vote.”

Again, Bernstein’s point has nothing to do with whether defeated cloture motions are “a much sounder measure of actual filibusters” than his count of “everything.” Further, if he were proposing to tweak my count of filibusters by adding in the small category of nominees who have clear majority support but who never get a floor vote because it’s clear that cloture would be defeated, I would have no objection in principle.

(As a matter of practice, though, I’ll note that Bernstein’s proposed category introduces a lot of uncertainty, as it will often be very difficult to identify which nominees fall into this small category. In any event, Bernstein could hardly have come up with a worse example than Chatigny. Terrified of how Chatigny’s strange intervention on behalf of a serial killer would play in the 2010 elections, Senate Democrats evidently didn’t want any floor vote on his nomination. Indeed, after the initial referral of his nomination to the full Senate was returned, Democrats on the Senate Judiciary Committee never even reported his nomination back to the Senate floor. So Bernstein’s claim that Chatigny had majority support in the full Senate is highly speculative at best.)

3. I explained in my post that the proposition that 60 votes were needed for action in the Senate was an elementary statement of how the Senate cloture rule operated, not some dramatic change that Senate Republicans implemented in 2009. Clinging to his contrary myth, Bernstein argues that Senate Democrats in the George W. Bush administration, supposedly unlike Senate Republicans during the Obama administration, made “no assumption of automatic filibusters, no insistence on a 60-vote Senate.” His proof: he names two Bush nominees who were confirmed with fewer than 60 votes.

By the same measure, Bernstein’s claim that Senate Republicans should be deemed to have filibustered “everything” since 2009 also fails. I can point to a lot more than two Obama nominees who were confirmed with fewer than 60 votes. Looking only at votes in 2013 that preceded the Democrats’ abolition of the filibuster, I see all these nominees who were confirmed with fewer than 60 votes: Chuck Hagel, Thomas Perez, Regina McCarthy, Kent Hirozawa, Nancy Schiffer, Mark Pearce, Byron Jones, Richard Griffin, William Orrick, Jennifer Dorsey, David Medine. To be sure, most—but not all—of these nominees won cloture motions, but the fact that some Republicans voted for cloture but against the nomination simply proves that Republicans were not filibustering all Obama nominees whom they opposed on the merits. They were not, in other words, “insist[ing] on a 60-vote Senate.”

I’ve quickly reviewed the roll-call votes for 2009 through 2012 and have found an additional ten nominees (some seven of whom did not face cloture votes) who were confirmed with fewer than 60 votes.

Have in mind, further, that Bernstein’s absurd claim extends to “everything,” including legislation, so all the bills and amendments that passed with fewer than 60 votes also, by his own measure, defeat his claim.

In short, Bernstein’s claim that Senate Republicans “implemented unprecedented across-the-board filibusters on everything” truly is nuts. 

Americans for Prosperity Foundation Sues the California AG


. . . and George Leef is on the case, which raises some important First Amendment issues: California attorney general Kamala Harris has demanded that the free-market Americans for Prosperity Foundation disclose its donor information, including their names, addresses, and contribution levels.

This Day in Liberal Judicial Activism—December 23


1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”

Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”

But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:

“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”


This Day in Liberal Judicial Activism—December 20


1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples. 

“The Crumbling Gender Binary”


Earlier this week, I passed along news of the First Circuit’s en banc ruling holding that the Eighth Amendment does not require the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. I hadn’t noticed at the time how histrionic Judge O. Rogeriee Thompson’s dissent—especially her closing paragraph—is.

Thompson states that she is “confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson … and Korematsu v. United States. Her litany of how “damaging” the ruling is culminates in the charge that it will—hold on to your seats!—“enable[] correctional systems to further postpone their adjustment to the crumbling gender binary.”

Yes, both Thompson and William Kayatta, who joined her dissent, were appointed by President Obama. 

Some Light Holiday Reading on Overcriminalization (Really!)


Just this week, the Federalist Society’s publication Engage published an excellent article by Hon. Ronald A. Cass called Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law. It’s an interesting treatment of the distinctions between criminal law enforcement and administrative law and their implications for overcriminalization reform. The paper is well worth reading.

From the conclusion:

Growing numbers of federal crimes, driven largely by the immense number of administrative rules that are criminally enforceable, have created a serious problem for anyone committed to the rule of law.  The typical prosecution may be justified and the typical prosecutor may be well behaved, but changes in the law have increased the risk of prosecutors bringing charges against people who have done nothing wrong, or nothing seriously wrong—nothing that traditionally would have been thought of as criminal—and selecting the number and nature of charges in a way that puts extraordinary pressure on defendants to agree to a plea bargain. 

The morphing of administrative law doctrines (which are relatively deferential to exercises of government power) with criminal law (which long was characterized by skepticism of assertions of government power and by rules designed to constrain that power) has reduced historic protections for criminal defendants.  It particularly has diminished prospects that defendants will be protected against charges of violating rules that are neither self-evident nor matters a given individual reasonably should be expected to know, the requirement of “fair notice” that repeatedly has been acclaimed as an element of due process.

Courts do not need to require actual knowledge of criminality to make the “fair notice” concept meaningful, but they do need to recognize that without knowledge or culpable ignorance “fair notice” is a myth.  By the same token, Congress should place clear limits on the power it gives administrative officials to create criminally-enforceable rules.  However much observers may applaud a given use of administrative rulemaking and criminal enforcement, it is critical to understand the growing risk to liberty from giving officials unchecked power to use the criminal law by selecting from an open field of potential charges as they see fit.  Attention to small risks—not complacency that they have yet to materialize—is the legacy of aspiring to be the “city on the hill” envisioned by those who lay the foundations for our nation.

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Christmas Invitations


As you plan your year-end charitable contributions, I encourage you to respond to National Review editor Rich Lowry’s appeal for support.

And while I’m at it: If you enjoy my posts here on Bench Memos and appreciate the impact that I’m having on the broader debate on constitutional and judicial issues, then I also invite you to support the Ethics and Public Policy Center. It’s my full-time position at EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. That’s true as well for my great team of colleagues at EPPC, including frequent NRO contributors like George Weigel, Mona Charen, Yuval Levin, Mary Eberstadt, James Capretta, Yuval Levin, and Stanley Kurtz.

Filibuster Delusions


Jonathan Bernstein’s major contention in this Bloomberg essay is that Senate Republicans in 2009 “implemented unprecedented across-the-board filibusters on everything” and in the ensuing years continued those “across-the-board filibusters on everything” until Senate Democrats finally had no choice but to “go nuclear” last year.

When I first read Bernstein’s claim, I thought that he might be peddling the deceptive claim that every cloture motion that Senate majority leader Harry Reid has filed somehow counts as a Republican filibuster. As I’ve explained before in greater detail, the Congressional Research Service has emphasized that “cloture motions do not correspond with filibusters,” and the Washington Post’s Glenn Kessler has noted that Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down.” (Emphasis added.) 

But, as I discovered through a Twitter exchange with Bernstein yesterday, it turns out that his position is even more extreme than that. Bernstein maintains that some statement made in 2009 by Republican leader Mitch McConnell to the effect that “if you don’t have 60, we won’t allow final vote” ipso facto means that Senate Republicans should be deemed to have filibustered everything that happened in the Senate after that statement.

Bernstein’s position is nuts. The proposition that he attributes to McConnell is nothing more than an elementary statement of how the Senate cloture rule operates—or, rather, operated until last year. (When I asked Bernstein in a previous exchange to identify the supposedly unprecedented, tradition-shattering statement that McConnell made, he didn’t do so and instead snarked, “C’mon, if you don’t know this, you shouldn’t be playing.”) It’s much more modest than, say, Democratic leader Tom Daschle’s vow in early 2001 to use “whatever means necessary” against President George W. Bush’s nominees. Bernstein claims that McConnell’s statement “was enforced” (whatever that means). The same could equally be said of Daschle’s vow. Yet somehow Bernstein treats McConnell’s statement, but not Daschle’s, as transforming everything that happened thereafter into a filibuster.

What was unprecedented was the campaign of partisan filibusters that Senate Democrats launched against Bush’s judicial nominees in 2003. Bernstein buries that campaign in a footnote and calls it only “a significant ratcheting up”—vastly less significant than the imaginary “unprecedented across-the-board filibusters on everything” that Senate Republicans supposedly engaged in from 2009 forward.

For a much sounder measure of actual filibusters, let’s look at defeated cloture motions. On this count, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions in a period of two years. By contrast, over the nearly five years of the Obama administration that preceded Senate Democrats’ abolition of the filibuster, six Obama judicial nominees suffered a total of seven defeated cloture motions. (Plus, one of those six nominees, Robert Bacharach, was defeated on cloture at the very end of July 2012 not as part of an effort to defeat his ultimate confirmation but in an application of the Thurmond Rule on election-year action. Bacharach was unanimously confirmed in February 2013.) So much for Bernstein’s claim that Republican “overreach … forced Democrats to go nuclear.” 

Eric Holder’s Transgendered Mutilation of Title VII


In a remarkable action yesterday, Attorney General Eric Holder declared that the “most straightforward reading” of Title VII’s bar on discrimination “because of … sex”—indeed, the “plain meaning” of its text—is that it bars discrimination “based on gender identity, including transgender status,” and that DOJ will henceforth adopt that reading.

In a fog of wordplay divorced from any plausible account of the original meaning of Title VII, Holder asserts that “Title VII’s prohibition against discrimination ‘because of … sex’ encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether.” (Emphasis added.)

Holder’s reference to “a different sex” is badly confused and odd. A man who identifies as a woman—yes, even a man who butchers and drugs himself to appear more like a woman—is still a man. Indeed, when anyone points out this elementary biological reality, transgender activists insist that gender is fundamentally different from sex.

Holder states that the federal government’s “approach to this issue has … evolved over time.” (Emphasis added.) That’s his way of acknowledging that his position is directly contrary to the position that DOJ had previously taken. As Christian Adams points out, Holder is instead following the dubious lead of the reckless adventurists at the EEOC. And while Holder states that “courts have reached varying conclusions” on the issue, his citations reveal that he’s adopting the position taken by a federal district judge over that taken by a federal court of appeals.

One controversy that long divided advocates of the bill titled the Employment Non-Discrimination Act, or ENDA, was whether the bill’s prohibitions on discrimination on the basis of sexual orientation should be extended to prohibit discrimination on the basis of gender identity. Under Holder’s cross-dressing reading of Title VII, that controversy was pointless because Title VII’s “plain meaning” already bars discrimination based on gender identity. Indeed, if Title VII broadly bars discrimination “founded on sex-based considerations,” I don’t see why Holder isn’t also contending that Title VII’s plain meaning bars discrimination based on sexual orientation. But that may just be the next lawless surprise in the offing.

This Day in Liberal Judicial Activism—December 19


2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union. Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

DOJ Changes Sides on Transgender Cases


Attorney General Eric Holder has instructed the Department of Justice to take the position from now on that Title VII of the 1964 Civil Rights Act, which makes it illegal for employers to discriminate against individuals on the basis of their “sex” (among other things), thereby makes it illegal to discriminate on the basis of “gender identity, including transgender status.”  The memo acknowledges that “Congress may not have had such claims in mind when it enacted Title VII” — my nomination for understatement of the year — but that the “plain text” of the statute is best interpreted that way. The Justice Department acknowledges that it is switching sides on this issue.

How to Prepare for Victory in Obamacare Exchange-Subsidies Case


In an op-ed in today’s Wall Street Journal, my Ethics and Public Policy Center colleagues Yuval Levin and Jim Capretta highlight the “urgent challenge” that the prospect of a Supreme Court victory in King v. Burwell poses for us Obamacare opponents. If the Supreme Court rules that subsidies are not available for individuals who buy health insurance through the federal exchange,

about four million individuals who are currently receiving these subsidies would lose them. For these people, the highly regulated and expensive coverage mandated by the law’s insurance rules might not be affordable. Governors and legislators in those 36 states that declined to set up exchanges may confront intense pressure to quickly restore access to subsidies.   

Yuval and Jim urge congressional Republicans to create a better alternative in advance of the Court’s ruling:

The first step is to introduce legislation that would allow any state to opt out of all of ObamaCare’s mandates, regulations, taxes and requirements, and instead opt into a far simpler and more flexible alternative system. In that system, state residents not offered health coverage by their employers could receive a federally funded, age-based credit for the purchase of any state-approved health-insurance product—including those bought outside of any exchange and regardless of whether they meet ObamaCare’s coverage requirements.

This Day in Liberal Judicial Activism—December 18


1997Best is worst—Best v. Taylor Machine Works, that is. In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation. In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

“Rape Exceptionalism”


That’s the term that Harvard law professor Jeannie Suk uses, in this New Yorker essay, to describe the growing phenomenon of “allow[ing] fears of inflicting or re-inflicting trauma [on victims of rape and sexual assault] to justify foregoing usual procedures and practices of truth-seeking.”

Suk, I’m pleased to note, cogently criticizes this phenomenon. She is also one of the 28 Harvard law school faculty members who signed this letter two months ago that objects to the new university-wide policy on sexual harassment and violence that the Obama administration extracted from Harvard.

Here are excerpts from her essay:

[M]y experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well. One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress….

Now more than ever, it is critical that law students develop the ability to engage productively and analytically in conversations about sexual assault. Instead, though, many students and teachers appear to be absorbing a cultural signal that real and challenging discussion of sexual misconduct is too risky to undertake—and that the risk is of a traumatic injury analogous to sexual assault itself. This is, to say the least, a perverse and unintended side effect of the intense public attention given to sexual violence in recent years. If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault.

The Next Attorney General Should Make Sure This Never Happens Again


Nobody knows the heavy hand of government better than its targets. Its awesome power and resources must only be deployed with honor and integrity. Unfortunately, the current administration has often elevated political expedience above principle. As President Obama’s nominee for attorney general, Ms. Loretta Lynch, goes to Capitol Hill, she should be required to answer how she plans to ensure that DOJ lawyers resist the temptation to abuse their dominant position.

Case in point. Kathleen Parker’s column in the Washington Post today describes a horrific series of abuses by state and federal prosecutors in litigation against defendants selected apparently for their deep pockets. Here’s the short version, as described by the trial court last February.

The “Moonlight Fire” broke out in 2007, burning approximately 65,000 acres over several weeks. In August 2009, the California Department of Forestry and Fire Protection (or “Cal Fire,” as it’s called) then brought suit in state court along with private plaintiffs against several corporate and individual defendants, including a foresting company and a mining company that were operating in the area. A parallel federal lawsuit was initiated around the same time.

After the state trial court dismissed several of the plaintiffs’ claims because of proof problems, the parties briefed the question of attorneys’ fees while the plaintiffs appealed the dismissals. During the briefing, however, the defendants notified the court that they had learned of newly discovered evidence, not through discovery responses from the plaintiffs, but independently through what the trial court called a “chance issuance” of an audit report of the special fund being used for various wildfire-related activities. Upon investigation, Cal Fire’s attorneys had to admit that they had inadvertently failed to produce more than 5,000 pages of responsive documents about that fund, including highly probative information about the plaintiffs’ intent.

The trial court ultimately found that during the litigation, Cal Fire and U.S. Forest Service investigators and their lawyers had engaged in “egregious and reprehensible” conduct, including “pervasive discovery abuses” that had “severely prejudiced” the defendants. That had occurred both in a manner “akin to spoliation,” through actual spoliation, and by investigators who “falsified” various statements made in discovery, ”attempted to steamroll the truth,” “betrayed their oath,” and on and on.

According to the Court, and despite their heightened responsibility to be fair and impartial, Cal Fire’s lawyers made it worse by failing to put a stop to it. The trial court therefore ordered Cal Fire to pay the defendants more than $30 million in attorneys fees and costs. Ouch.

It now seems that similar problems plagued the federal lawsuit, which was initiated in close cooperation with Cal Fire’s lawsuit. According to a filing by the defendants, two Assistant U.S. Attorneys who worked on the litigation for the United States have submitted devastating sworn declarations relating their concerns about misconduct in the office where the Moonlight Fire litigation was taking place. One of those AUSAs stated that he had been removed as lead counsel for the federal Moonlight Fire litigation after he resisted internal pressure to withhold information about other wildfire matters, conduct which he considered unethical (and the Department of Justice’s ethics advisory hotline apparently agreed with him).

According to the defendants, the resulting collaboration between the federal and state prosecutors tainted the ultimate settlement agreement, which was predicated on the nonexistence of information that Cal Fire was ultimately found to have withheld. As such, they argue, the settlement constitutes a fraud on the court.

Every government lawyer, especially federal prosecutors, must understand that as attorneys who represent the people’s government, they have a higher duty. Justice does not consist simply in winning their case, but in doing justice under law.

There’s an inscription outside the U.S. Attorney General’s office in Washington that reads: “The United States wins its point whenever justice is done its citizens in the courts.” Senators should ask Ms. Lynch whether she thinks that justice was done in this case, and if not, how she would fix the problem as Attorney General.

The cases in question are California Dept. of Forestry v. Howell, et al., GN CV09-00205 (Cal. Sup. Ct.) and United States v. Sierra Pacific Industries, et al., 2:09-CV-02445 (E.D. Cal.).

Obama’s Judicial Legacy


Last night, the Senate confirmed more of President Obama’s judicial nominees as some of its last business for the year.  Yet even before last night’s confirmations, President Obama had already ensured that he would have a significant impact on the federal courts.  Indeed, his effect on the courts could be his most significant legacy.  As the Huffington Post reports:

In its final act of the year, the Senate blew through a dozen U.S. district court nominees on Tuesday night. That puts Obama at a whopping 89 district court and circuit court confirmations for the year, and means he’ll wrap up his sixth year in office with a grand total of 305 district court and circuit court confirmations — a tally that puts him well beyond where his predecessors were by this point in their presidencies.

President George W. Bush confirmed just 32 district court and circuit court judges during his sixth year in office, according to data provided by Alliance for Justice, a progressive advocacy group focused on the federal judiciary. President Bill Clinton confirmed 65 judges in his sixth year. In total, Bush confirmed 256 district and circuit court nominees after six years in office, Clinton confirmed 302, and President Ronald Reagan confirmed 295. Those numbers include a handful of Court of International Trade confirmations.

Senator Cruz’s Point of Order


There has been some confusion about the point of order that Senator Ted Cruz raised against the omnibus spending bill on Saturday. For example, Michael Gerson, in his Washington Post column today that is critical of Cruz, says that Cruz “demanded a ‘point of order’ vote on whether Obama’s executive order [on immigration] was constitutional.” But, as Cruz himself explained, his point of order was “targeted … specifically to the DHS funding that the President has announced will be spent unconstitutionally.”

In other words, Cruz couldn’t raise a point of order directly against Obama’s actions on immigration. He instead raised it against that portion of the pending legislation that provided “DHS funding that the President has announced will be spent unconstitutionally.” His point of order thus depended on the theory that it’s unconstitutional for the Senate to enact legislation that is constitutionally permissible on its face but that the Senate has reason to believe (or, if you prefer, “knows”) that the president will implement in an unconstitutional manner. That’s an interesting theory, but a refusal to embrace it is not tantamount to a judgment that Obama’s actions on immigration are constitutional.

Re: The Eighth Amendment and Sex-Reassignment Surgery


Back in January, I discussed a divided First Circuit panel ruling that affirmed a district-court order holding that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. Today, the en banc First Circuit, by a 3-2 vote, rejected the panel ruling and reversed the district court.

The First Circuit has only six active judges, and its newest judge, David Barron, did not take part in the case (perhaps because he joined the court in the midst of the en banc process). Judge Juan Torruella, who dissented from the panel ruling, wrote the en banc majority and was joined by chief judge Sandra Lynch and Jeffrey Howard. In dissent were the two members of the panel majority, O. Rogeriee Thompson and William Kayatta.


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