This Day in Liberal Judicial Activism—July 25

by Ed Whelan

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.

This Day in Liberal Judicial Activism—July 24

by Ed Whelan

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writingsand, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind. Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.

This Day in Liberal Judicial Activism—July 22

by Ed Whelan

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.  

NPR and Wise Latinas

by Roger Clegg

A researcher at Harvard has concluded that black federal trial judges get overturned at a rate 10 percent higher than white federal trial judges. Now, I’m skeptical that this proves anything about anything, but what’s interesting is the way this National Public Radio story looks at the study.  All kinds of explanations are considered, except for the most obvious one: If, in the name of “diversity,” less qualified African Americans are appointed to the bench, then they would be more likely to commit reversible errors. 

NPR gives more credence to the possibility of “unconscious biases” or, in particular, that black judges might bring a particular viewpoint to their judging, and then that viewpoint gets squelched on appeal, defeating the whole purpose of “diversity.” So we’re back to the notion that your skin color and national origin not only can but should determine how a judge rules — back, that is, to wise Latinas and anti-Trump Mexican judges.

This Day in Liberal Judicial Activism—July 20

by Ed Whelan

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.

Virginia’s Non-Racist Voting Law

by Roger Clegg

The New York Times has an op-ed today by the ACLU’s Dale E. Ho, titled “Virginia’s Racist Voting Law” and tied in with today’s oral argument before the Virginia state supreme court, in which a challenge is being heard to Governor Terry McAuliffe’s executive order reenfranchising 206,000 felons.  Hans von Spakovsky and I have elsewhere explained why the order is bad policy and bad law and politically sleazy to boot, and why it makes perfect sense to require those who have broken the law to show they have turned over a new leaf before letting them participate in the solemn enterprise of making laws for everyone else. 

So today I’ll make just one point in response to Mr. Ho’s claim that the 1971 law currently on the books in Virginia is somehow tainted with the racist remarks made at a state constitutional convention in 1902.  If there were any evidence that this was true, then — as Mr. Ho himself acknowledges in the op-ed — the U.S. Supreme Court has made it clear that such a law would be unconstitutional, and the ACLU (or the Justice Department, or the Democratic Party, or any one of many other well-funded left-wing and politically savvy entities) would be only too happy to challenge it in court. Virginia, after all, is a swing state that’s rich in electoral votes.  But no such lawsuit has been brought — proving that there really is no such evidence.

This Day in Liberal Judicial Activism—July 19

by Ed Whelan

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.”

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction.

This Day in Liberal Judicial Activism—July 16

by Ed Whelan

2014—​Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death  penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed  and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.