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This Week in Liberal Judicial Activism—Week of November 12



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Nov. 12     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 Week 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 Week for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

 

Nov. 13     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.

 

Nov. 14     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.

 

Nov. 16     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).

 

Nov. 18     2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution.  The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.
 

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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