At the American Prospect yesterday, “investigative journalist” Sarah Posner filed a piece on the Hobby Lobby suit against the HHS mandate, marked by pretty indolent “investigative” habits.  Here and there Posner does manage to simulate a journalist’s fairness to her protagonists–she at least interviewed Kyle Duncan of the Becket Fund, who represents Hobby Lobby in its litigation–but she undermines her bona fides by relying solely on HHS-friendly sources when she steps away from the immediate parties to the case.  This is true both of her medical and her legal sources.  In this first post I’ll discuss the medical.

Here is Posner on the issues in the case:

Unlike Catholic plaintiffs, which oppose covering all methods of birth control, Hobby Lobby is refusing only to cover intrauterine devices and the emergency contraceptives Ella and Plan B, which they claim are abortifacients. Hobby Lobby says that its deeply held religious conviction is that “life begins at conception.” Because, it claims (contrary to medical evidence), emergency contraception and IUDs can prevent implantation of a fertilized egg, it considers these drugs and devices “abortifacients.” (Conservative activists have taken to calling the contraception coverage requirement the “abortion pill” or “abortion drug” mandate.)

Notice that it is Posner herself who, in her parenthetical remark, is absolutely confident that it’s “contrary to medical evidence” to say that any drugs or devices covered by the HHS mandate are abortifacients.  Why is she so sure?  She supplies no evidence whatsoever.  The Tenth Circuit noted that there is professional disagreement on the question, in a footnote Posner has read (she partially quotes it later in her article, but leaves this out).  Here is footnote 3 of its June 27 opinion:

There is an ongoing medical debate as to whether some of the contraceptive methods relevant to this case act by preventing implantation or fertilization. Compare, e.g., Physicians for  Reproductive Health et al. Amicus Br.at 12–13, with Ass’n of Am. Physicians & Surgeons et al. Amicus Br. at 12 & n.21.

The judges probably gave more credence than was necessary to the abortifacient deniers.  As the American Association of Pro-Life Obstetricians and Gynecologists (which was also an amicus in this case) noted in testimony and submissions to the FDA before its approval of ullipristal (or “Ella”), the drug has been classified by the European Medicines Agency as “embryotoxic at low doses,” and it can easily be taken by women who have been unwittingly pregnant for several days, with abortifacient results.  Its widespread use off-label as an abortifacient is perfectly predictable now that it is available over the counter–as is its surreptitious use by others who wish to administer it to women without their knowledge.  (See more here from AAPLOG on this lovely new poison, now over the counter to all ages.)

Posner goes to just one source for an explanation of the science in this case.  Here are Posner’s next three paragraphs, after the first one quoted above:

Dr. Anne Davis, Consulting Medical Director to Physicians for Reproductive Health (PRH), which filed an amicus brief in the case, says that the “essence of their argument is that they believe that pregnancy occurs at fertilization. No major medical organization endorses that idea.” Rather, she says, a pregnancy test is not positive until implantation has occurred.

The emergency contraceptives Ella and Plan B do not interfere with implantation, but rather with ovulation, says Davis. The copper IUD can be used for conventional or emergency contraception, but “it’s spermicidal. So the sperm don’t make it past the uterus.” There is, as PRH noted in its brief, some evidence that the copper IUD may alter the endometrial lining, thus preventing implantation. But, Davis says, fertilized eggs rarely implant, for unknown reasons, so to attribute a failure to implant to the remote possibility that it was caused by the IUD misses the point.

“They’ve got people hypnotized into thinking that fertilization is pregnancy,” says Davis. “You can believe whatever you want, you can have your own beliefs about what these things mean to you,” but “these are not abortifacients.”

Dr. Davis’s claim that Ella “do[es] not interfere with implantation, but rather with ovulation,” is contradicted by the AAPLOG submission to FDA quoted above.  Citing published research and the European Medicines Agency, AAPLOG notes that the drug “interferes with the hormone action of progesterone to prepare the endometrium for implantation and to support the early pregnancy” (my emphasis).

Herewith an aside on the business of sourcing these contested claims in journalism.  A group calling itself by the euphemism “Physicians for Reproductive Health” in today’s Orwellian environment is, by definition, pro-abortion–which is to say, willing to countenance the interruption of ”reproductive health” by the violent termination of reproduction.  Its members and spokespersons do not take an active interest in the protection of unborn human lives, and should therefore not be trusted to be interested in stating the finer points of medicine in these matters accurately.  Their interest is precisely not to care whether the unborn are killed, but instead to facilitate those deaths in the name of “choice” and “health,” and it would not be the most surprising thing in the world if they elide the difference between contraception and abortion, whatever the science says.  A group like the American Association of Pro-Life Obstetricians and Gynecologists (a recognized interest group of the larger American College of Ob-Gyns), on the other hand, which takes no position on the issue of contraception but is deeply committed to the sanctity of unborn life, is for that reason deeply interested in making sure that what passes for “contraception” is not in fact abortion.  Its interest in factual and scientific correctness is more reliable, and if it errs, it will err on the side of life.

In the first and third paragraphs just quoted, Dr. Davis engages in contemptible word games about fertilization and implantation.  Mocking the view “that pregnancy occurs at fertilization,” she says, ”No major medical organization endorses that idea.”  Posner then paraphrases her as saying that “a pregnancy test is not positive until implantation has occurred,” and in the final paragraph quotes Davis saying that opponents of the HHS mandate have been “hypnotized into thinking that fertilization is pregnancy.”

But it is Davis who is engaged in (or the victim of) hypnotism here.  It may be true that until implantation occurs, no extant pregnancy test will show a positive result.  But it is also undeniably true that from fertilization onward, a new, separate and distinct, genetically unique human being is in existence, even before implantation.  The period between fertilization–or conception–and uterine implantation is typically ten to twelve days (so say my friends Robby George and Chris Tollefsen in their authoritative book Embryo: A Defense of Human Life).  If Dr. Davis would like to claim that for several days prior to implantation, every woman carrying a new embryonic human life within her body–a new child in its smallest form–is not actually “pregnant,” she is abusing language to achieve an ideological result.  (Davis’s focus on this “implantation vs. fertilization” issue also strongly suggests that she knows full well that Ella is the abortifacient others claim it is, because of its interference with implantation.)

Let us for a moment adopt the specially tortured language of Dr. Davis.  What do you call a woman who is “not pregnant” but carrying a not-yet-implanted embyonic child in her body for ten days or so?  I would call her a mother who probably doesn’t know it yet.  What do you call that embryonic child if its life is terminated by Ella?  Aborted.

As for the Green family that owns Hobby Lobby, they do not merely have, as the Tenth Circuit put it, “a belief that human life begins when sperm fertilizes an egg.”  They have knowledge of that fact, a fact affirmed by embryology but curiously obscured by Dr. Davis.  What they believe–and what Dr. Davis evidently wants not to talk about–is that every such human life is precious and should not be willfully destroyed.

As for Sarah Posner, what she evidently believes is that you can “report” on these matters by talking to only one side about the facts of the case.

Today at Public Discourse, I review Rich Lowry’s fine new book on Abraham Lincoln:

As Rich Lowry shows in his new book Lincoln Unbound: How an Ambitious Young Railsplitter Saved the American Dream—And How We Can Do It Again, our sixteenth president was in many respects the very embodiment, in his own life, of the potentialities of freedom that the founders sought to unleash. It was the immense, wide-open promise of the country in which he was born, I take Lowry to mean, that “unbound” Abraham Lincoln and enabled him to rise from the humblest origins to the highest magistracy in the land.

This compact and lively book is a labor of love. Lowry has absorbed great quantities of the seemingly bottomless Lincoln literature; he knows the primary sources extremely well; and he has a fine ability to set Lincoln in historical context, helping readers understand his subject as he responded to the circumstances and issues of his own time. The resulting narrative tells us a lot about how Lowry views his country, as we see what he particularly admires about Lincoln’s life and legacy.

Read the rest here.

See Parts 1, 2, and 3

D.C. Circuit nominee Cornelia Pillard’s constitutional argument against abstinence-only sex education (in Part I of her “Our Other Reproductive Choices” article, pp. 946-962) is also replete with illogic and with an ideologue’s dogmatic but dubious vision of reality.

In a single sentence, Pillard contends that for “sex education conservatives” (i.e., supporters of abstinence-only sex education), “[1] females’ chastity is more important than males’; … [2] marriage is the only proper venue for sexual intimacy; [and] [3] men’s sex drive and sexual satisfaction is privileged while women’s is demonized [!] or ignored” (p. 953). But the second proposition contradicts or undercuts the other two. If abstinence-only advocates regard marriage as the “only proper venue for sexual intimacy,” it is difficult to see how they regard male chastity as less important than female chastity. In the free-for-all sexual culture in which we live, it is at most a very limited “privilege” for a man’s “sexual satisfaction” to be reserved to marriage. And if Pillard has any evidence that even remotely supports her assertion that women’s “sex drive and sexual satisfaction … [are] demonized” by abstinence-only curricula, I missed it.

Consider also some of the evidence that Pillard offers of “stereotyped double standards”:

One curriculum cautions that “[a] man is usually less discriminating [than a woman] about those to whom he is physically attracted.” The fact that a man might make sexual advances towards a woman does not necessarily mean that he cares for her, abstinence-only materials assert, but perhaps only that he sees her as an outlet for his sex drive. Men, the curricula hint, are only after that “one thing.” Because male sex drive is so unrestrained, “[t]he girl may need to put the brakes on first to help the boy.” Nowhere are students warned about girls taking advantage of boys for kicks, or told that boys must also take responsibility to help girls restrain their lust. [pp. 953-954 (bracketed material in original)]

I’ll admit that the propositions that men usually care more about physical attraction than women do and that a man’s sexual advances towards a woman do “not necessarily mean that he cares for her” strike me as truths that nearly all Americans would recognize as obvious. Pillard imagines that these warnings are part of a “sexual double standard that weighs females’, but not males’, chastity as more important than their sexual fulfillment (p. 953 n. 32). But, as she acknowledges only pages later, the “risks of unwanted pregnancy, disease, sexual exploitation, and rape do fall disproportionately on women” (p. 959). Irrespective of any concerns about female versus male chastity, the warnings that she objects to would seem amply justified by these disproportionate risks.

Yet, remarkably, in the very sentence after she acknowledges these disproportionate risks, Pillard laments that the “instinct to warn young women against male predation does not strike all parents as necessarily wrong” (p. 959). Why that instinct to warn against real risks should strike anyone as wrong is the real puzzle. In Pillard’s case, the answer to that puzzle is provided by her dogmatic belief that there are no “‘natural’ sex differences” between men and women beyond “a kernel of anatomical sex difference” (p. 960). It is only the “vast web of sex-based hierarchy [that] has been spun off [this] kernel” (p. 960) that explains the persistence of other sex differences. Because the “law of sexual equality” is “aspirational” as well as “responsive” (p. 959), it must be deployed to create a world that reflects Pillard’s dogmatic belief. The alternative—a world in which there are some natural and ineradicable (and, let me be daring, perhaps even good) differences in general between men and women on, say, preferences for having a career versus full-time raising of children—is unthinkable.  

It’s theoretically possible, I suppose, that Pillard is right that the only “natural” sexual difference between men and women is a minor matter of anatomical plumbing. I understand there to be a vast amount of literature from the hard sciences and the social sciences (as well as from feminists of a different stripe than Pillard) that would vigorously dispute that proposition, but I will not enter into that debate here. For purposes of Pillard’s nomination, I will simply note Pillard’s remarkable ambition to use the Constitution to impose and advance her own dogmatic belief on a matter that clearly belongs, within very broad bounds, to the democratic processes.

See Parts 1 and 2

I’ll turn now to D.C. Circuit nominee (and Georgetown law professor) Cornelia Pillard’s argument (in Part I of her “Our Other Reproductive Choices” article, pp. 946-962) that abstinence-only sex education in public schools “is permeated with stereotyped messages and sex-based double standards” and thus “violates the constitutional bar against sex stereotyping and is vulnerable to equal protection challenge” (p. 948). (Pillard particularly objects to the role of “religious and conservative groups such as Focus on the Family and Concerned Women for America” in supporting abstinence-only curricula (p. 955), but she applies her argument against all such curricula.)

Let me highlight at the outset that, of the countless possible variations of sex education in the public schools, I have no considered position as to which is best as a matter of policy (though this recent Public Discourse essay by psychiatrist Miriam Grossman indicates that there is a lot wrong with most “comprehensive” sex ed programs). The matter of sex education strikes me as one on which reasonable people may well have a wide range of different judgments. Further, local decisionmaking might lead to diverse approaches that suit different contexts, and might enable comparative assessments as to what works best in practice. So, absent a clear violation of the Constitution, decisions on sex education would seem especially suited to the democratic processes.  

Pillard, by contrast, would aggressively expand constitutional equality principles both to invalidate abstinence-only programs and to invite further federal judicial micromanagement of the sex-education curricula of public schools.* Under the vague standards that Pillard sets forth, federal judges would have broad freedom to require “egalitarian sex education”:

Egalitarian sex education should recognize the realities of sex-based subordination and harm even while it strongly counters sex-based stereotypes and double standards. It should acknowledge and oppose male-on-female aggression and the larger system of gender hierarchy that such aggression exemplifies and sustains. It should also, however, recognize that boys and men, too, are frequently harmed by sexual aggression, and that girls and women can be the moving force behind irresponsible or otherwise harmful sex. And it should always–especially as applied to young people—express hope that old patterns will change. [p. 959]

Further:

Egalitarian sex education should communicate relevant ethics and concerns to both sexes. It should affirm the value of sexual pleasure for females as well as males, and the vulnerability of males as well as females to emotional and physical harm. It should alert girls as well as boys that the power of sexual desire can test our rationality and emphasize that we are all nonetheless obligated—and are expected to learn—to exercise self-control. Egalitarian sex education should teach students of both sexes that parenthood imposes enormous responsibilities, which should be shared by both women and men. Evenhanded teaching about abstinence and contraception would stress that those behaviors are the responsibility of both sexes. [pp. 961-962]

I’ll simply submit that anyone who imagines that federal judges should be applying these standards to decide whether a sex-education curriculum (both on paper and as taught) is constitutionally permissible shouldn’t be trusted with judicial power.

More to come on this article.

* At one point in her article, Pillard, citing standing doctrine, observes that constitutional equality norms “are not always judicially enforceable” (p. 958). But she immediately thereafter states that her “equal protection critique of abstinence-only criteria is strengthened and rendered more amenable to judicial resolution by the fact that sex education classes are designed … to shape student behavior,” and she concludes that that “the conduct-shaping purpose of sex education curricula makes them vulnerable to equal protection challenge”—i.e., subject to judicial invalidation (p. 958).

See Part 1

A former colleague of D.C. Circuit nominee Cornelia Pillard describes her to me as “Reinhardt in a skirt but less moderate.” Given that Ninth Circuit judge Stephen Reinhardt has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals, it’s difficult to imagine a more damning assessment.

Another person, a legal academic who is familiar with Pillard’s work on matters concerning sex, abortion, and the family, tells me that Pillard is a “complete ideologue” on those matters, someone who will “twist constitutional doctrine to suit the liberal cause du jour.”

The first of Pillard’s law-review articles that I have waded through—“Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy”—amply supports these evaluations.

For starters, Pillard shows all the signs of a pro-abortion extremist (even as she purports to “seek[] common cause” with abortion opponents by broadening the “reproductive rights agenda with measures that make abortion less necessary” (pp. 944, 990)). In her view, “reproductive rights,” including a right to abortion, “should be doubly constitutionally protected by the overlapping liberty and equality guarantees.” A right to abortion is necessary to help to “free[] women from historically routine conscription into maternity” (p. 945 (emphasis added).)

To Pillard, men and women who oppose government mandates on employers to provide insurance coverage for contraception “reinforce[] broader patterns of discrimination against women as a class of presumptive breeders” (p. 975 (emphasis added).) Under her line of reasoning, her same charge surely applies against men and women who support restrictions on abortion (including bars on funding abortion).

Pillard objects in passing to the supposedly “deceptive images of fetus-as-autonomous-being that the anti-choice movement has popularized since the advent of amniocentesis” (p. 990). But she can’t explain what is “deceptive” about images that depict the elementary biological reality that the developing unborn baby, far from being the blob or parasite of pro-abortion mythology, is an individual human organism. (I don’t understand what Pillard means by claiming that pro-lifers present the human fetus as an “autonomous” being; I’ve never heard a pro-lifer dispute the fact that, at least until viability, the unborn baby is critically dependent on her mother for her continued survival.)

Much more to come on this law-review article.

Today the Senate Judiciary Committee unanimously approved another one of President Obama’s appellate nominees: Justice Department attorney Todd Hughes who the President nominated for an open seat on the U.S. Court of Appeals for the Federal Circuit.  BLT reports on the committee action here.

I don’t know how anyone could analyze the compromise Senate Republicans struck with Senate Democrats on the nuclear option and conclude that the Republicans weren’t completely outmaneuvered. Senator Reid and President Obama got everything they wanted with respect to current nominees, plus the implied guarantee of majority votes for future nominees, without securing any enforceable commitment to apply the same standard to the nominees of future presidents.

That’s not a deal, it’s a disaster.

Granted, Republicans weren’t in an ideal situation: Senator Reid and his media allies have spent the last five months manufacturing a confirmation “crisis” Rahm Emanuel would have been proud of. Facts and consistency were no deterrents in Reid’s campaign to prove an ongoing pattern of obstructionism. As others have noted, he managed to change his position on the nuclear option while also backing out of his January non-aggression agreement with Senate Republicans.

The faux crisis was just what he needed to justify taking a high-profile hostage: the filibuster.

Republicans (and plenty of conservatives) were so distracted by the hostage that they lost track of all of the commitments they were making to preserve it. I don’t normally take advice from Keanu Reeves, but everyone would have come out of this mess in a much better position if Republican senators had simply shot the hostage.

Line up behind the nuclear option. Let Reid eliminate the filibuster for nominees.

Yes, that would have undermined Billions and Billions of years of Senate precedent. Yes, President Obama would have installed activist liberals in key positions. But isn’t that what is happening anyway? Does anyone really believe Republicans intend to actually use the rules they fought so hard to preserve?

Allowing Reid to exercise the nuclear option would have required him to pay a price, by turning him into a top-tier liar and by establishing concrete precedent that could have been applied during future presidencies. Instead, he gets his nominees, the moral authority of being the generous negotiator, and the ability to engage in epic levels of obstruction if a Republican wins the White House.

Until Democrats agree to play by the same rules, GOP senators are going to have to use the same weapons — and that means the filibuster against egregious judicial nominees. The D.C. Circuit nominees are a good place to make that clear.  
 

The Senate Judiciary Committee has scheduled a hearing for next Wednesday, July 24, on President Obama’s nomination of Georgetown law professor Cornelia (“Nina”) T. Pillard to a seat on the D.C. Circuit. The hearing would come a mere seven weeks (50 days, to be precise) after Obama’s simultaneous nominations of Pillard, Patricia Millett, and Robert L. Wilkins to three D.C. Circuit vacancies, barely five weeks after the committee received Pillard’s Senate questionnaire response (available, without the voluminous attachments, here), and a mere two weeks after Millett’s hearing.

The rush on these nominees seems designed to prevent a careful review of their records. Obama himself has taken forever to make nominations to the D.C. Circuit, and that court remains underworked, so it is difficult to see the justification for the sudden rush. Further, committee staffers have been swamped in recent weeks with work on the immigration bill as well as with tending to the Supreme Court’s end-of-term rulings, so there has been very little time available to prepare for the hearings.

In addition to her brief-writing, Pillard has an extensive record of law-review articles, speeches and other public statements. Merely listing them consumes nearly 20 pages of her questionnaire response. There is no reason to expect that committee staffers will have been able to give her record the thorough review that it deserves.

For context, compare the proposed 50 days from Pillard’s nomination to her hearing with the nomination-to-hearing periods for President George W. Bush’s nominees to the D.C. Circuit:

John Roberts—630 days

Miguel Estrada—505 days

Brett Kavanaugh—277 days

Thomas Griffith—190 days

Janice Rogers Brown—89 days

Peter Keisler—33 days

Although the Keisler example might seem to provide some support for the ultra-rapid scheduling of the Pillard hearing, there are a few points worth noting: First, committee Democrats objected vigorously to the “astonishing and inexplicable speed” of the Keisler hearing, and for the remaining 2-1/2 years of the Bush administration they prevented any final committee action on Keisler’s nomination. Second, Keisler, as a practicing attorney rather than an academic, had a much, much smaller record of articles, speeches, and public statements to review; his listing of them in his Senate questionnaire response took less than a page. Third, Keisler’s hearing did not follow immediately on the heels of another D.C. Circuit nominee’s initial hearing. (The previous initial hearing had been more than two years earlier; Kavanaugh had a second hearing about seven weeks before Keisler’s hearing.) Fourth, the committee had reviewed Keisler’s record when it approved his 2003 nomination to be Assistant Attorney General for the Civil Division.

Fortunately, as we will see in further posts, it is not necessary to dig deep into Pillard’s record to discover what a left-wing ideologue she is.

Two months ago (as I discussed more fully in this same-day post), a divided panel of the Sixth Circuit issued a crazy ruling on sentencing for crack-cocaine offenders who were sentenced before the effective date of the 2010 “Fair Sentencing Act.” Just back from vacation, I’m pleased to learn that the full Sixth Circuit has vacated that ruling and decided to rehear the case en banc. (H/t Orin Kerr at Volokh Conspiracy.)

In related news, I’ll note that Sixth Circuit judge Boyce F. Martin Jr., one of the two malefactors in the crack-cocaine case, has decided to put an end to his 34 years of (mis)service on that court.

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

The Senate and House are each holding hearings this week to consider this question: “What is to be done in light of the Supreme Court’s recent ruling in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act?” The correct answer is simple:  Nothing.

There is no state in 2013 whose practices are so racist – such as Mississippi’s in 1965 – that it can be entrusted to run its own elections only if Eric Holder is supervising them. And the rest of the Voting Rights Act is alive and well and available to address any discrimination that needs to be addressed. There is, in sum, simply no need for additional, pro-active legislation to address actual disparate treatment on the basis of race – as opposed to a failure to gerrymander racially segregated districts for this or that racial or ethnic minority (the principal use to which Section 5 was put before being struck down), or a mere disproportionate racial effect from, for example, an anti-fraud voter-identification law (which seems to be the principal Democratic complaint these days).

The unassailability of the above points will, I have no doubt, be brilliantly demonstrated by Michael Carvin (who will be testifying before the Senate on Wednesday) and NRO’s own Hans von Spakovsky (who will be testifying before the House on Thursday)

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”). Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

Right and Left may have squabbled over whether there’s a need to fill more seats on the U.S. Court of Appeals for the D.C. Circuit, but the Senate continued to confirm judicial nominees to other courts this week. On Monday, the Senate unanimously confirmed Wyoming Attorney General Greg Phillips to the U.S. Court of Appeals for the 10th Circuit.  How Appealing  rounds up press coverage of the confirmation here.

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

Richard Epstein, on the Supreme Court’s alleged big-business bias:

I do not want to be construed as an apologist for big business, but I do think that the current anti-business rhetoric seriously misstates the relevant issues. Commentators could just as easily denounce the four liberal justices as anti-business apologists for big government. But that transparent ploy suffers from the same three defects as the usual attacks on the Supreme Court: selection bias; misplaced significance; and failure to account for the importance of consistently taking the ex ante perspective. . . .

The key point to remember here is that no judge should think that either pro- or anti-business sentiments define the proper attitude toward Supreme Court adjudication. The question is which decision from the ex ante perspective advances overall social welfare—and by that standard the vocal critics of the current conservative majority come off second best.

[UPDATE 7/11/13]:  Governor Brownback’s office has released a statement by the governor clarifying that he will not release the names of applicants for a vacancy on the Kansas Court of Appeals, reasoning that such disclosure would discourage the best possible judges from applying.  Supporters of the rule of law and high quality courts, in Kansas and elsewhere, should applaud Governor Brownback for making a sound public policy decision in the face of overwhelming criticism from the press and far left special interest groups.  This post has been updated accordingly.  

As I reported last week, a coalition of partisan advocacy groups, led by Soros-funded Justice at Stake, had been throwing a temper tantrum over the fact that Kansas governor Sam Brownback would not disclose the names of applicants for a judicial vacancy. Sadly, Governor Brownback has apparently caved under the pressure and will release the names of the applicants.  

No president in American history has done what these groups urged Governor Brownback to do, and, as I have already noted, I don’t see any of them calling on President Obama to disclose the name of judicial applicants. With good reason — such a campaign would be scoffed at by judicial-selection experts on the right and the left. 

As Rutgers professor Alan Tarr, a leading scholar on state judicial selection and state constitutions, explained in a statement, the front-end confidentiality of the federal method actually improves the quality of the judicial applicant pool:

I am not surprised that Governor Brownback has declined to disclose the names of all those who expressed an interest in the judicial vacancy.  In New Jersey, which has the same system of governors appointing with senate approval, neither Republican nor Democratic governors have ever released the names of applicants for judicial slots, and with good reason–many qualified persons won’t apply unless their names are kept secret, because they don’t want to jeopardize their current positions.

Has applicant confidentiality destroyed the New Jersey Supreme Court? Apparently not according to the New York Times, which has lauded (incorrectly, in my view) the court as “one of the most respected state appeals courts in the country.” 

Such arguments once mattered to legal organizations who claim to care about encouraging applicant pools of the highest quality. As I explained in my last post, that is why the American Bar Association’s policy favors confidentiality. 

Even liberal supporters of the commission-based Missouri Plan defend applicant confidentiality in that process. According to the American Bar Association’s “Report of the Commission on State Judicial Selection Standards”:

In an effort to reduce the fear candidates may have of exposing their private histories, commissioners should keep candidate information confidential.  In some cases, commissions may even decide to keep the names of applicants anonymous.

The American Judicature Society, an ally of Justice at Stake’s, has also spoken in favor of nominee confidentiality. In their Handbook for Judicial Nominating Commissioners, they explain that:

Balancing the public’s right to be kept informed with the applicant’s right to privacy is difficult.  Wherever possible, the applicant should be protected from (i) public scrutiny with respect to his or her private life and (ii) public embarrassment that could result from the failure to receive a nomination.  Most judicial nominating procedures require limited public disclosure, such as publicizing the names of the nominees submitted to the appointing authority. . . . A majority of judicial nominating committees require the applicant’s application and file to remain confidential and outside the purview of the public.

In the AJS publication ”Inside Merit Selection,” they further draw the link between judicial quality and confidentiality:

While accountability can help improve the process by ensuring fair and even-handed consideration of applicants, keeping information confidential can ensure a high-quality pool of candidates by guaranteeing that an applicant will not suffer professional ramifications such as loss of business to their law practice or a perception that they are less committed to their current position by virtue of their interest in obtaining a judgeship. 

Governor Brownback’s critics would have you believe none of that was ever written, and that there is no reasonable case for confidentiality. Why? Because they are partisan activists who have little interest in actually advancing the rule of law.  

Justice at Stake is funded by left-wing Hungarian billionaire George Soros, and the organization’s executive director is a liberal activist who has worked for the Clinton-Gore campaign, Attorney General Janet Reno, and the Progressive Policy Institute. The Justice at Stake staffer quoted extensively in the Topeka Capital Journal’s stories is also a liberal activist, having worked for the National Center for Lesbian Rights, the American Constitution Society, the Human Rights Campaign, and the board of the Transgender Law and Policy Institute.  

Surprised that they are driving policy in Kansas? Me too.  

2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so it says. But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling.

The Supreme Court will take up another racial-preferences case next term, this time in Schuette v. Coalition to Defend Affirmative Action. The case involves Michigan’s state constitutional ban on affirmative action in state universities, which the Sixth Circuit held to violate the Equal Protection Clause. It applied the “political process doctrine,” which bars laws that make it more difficult for minority groups to secure certain types of legislation but other courts have refused to apply to actual guarantees of equal treatment.

My organization, the Judicial Education Project, has filed an amicus curiae brief supporting Michigan’s ban. Read the whole brief.