Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—November 30


1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.

This Day in Liberal Judicial Activism—November 29


2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.


This Day in Liberal Judicial Activism—November 28


1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law. 

2013—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness”:

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

Re: Harold Meyerson’s Blinkered Vision


I neglected to mention below that Meyerson makes two more mistakes, in this short passage:

The Affordable Care Act requires employers to offer health insurance that covers contraception for their female employees. Churches and religious institutions are exempt from that mandate.

But as Ed Whelan pointed out in his vivisection of the NYT editorial today, it is not the ACA itself, the statute, that imposes the mandate to offer this coverage.  That was a course freely chosen by HHS Secretary Kathleen Sebelius, who was not compelled by the law to impose this particular requirement on employers.  Sebelius did it, and President Obama has backed her up, on the hustings (“war on women!”) and in court.  This is not a mandate imposed by Congress.

And while churches are exempt from the mandate, it is not true that “religious institutions” are exempt.  They got only a phony “accommodation,” in which they are obliged to do everything necessary to make the coverage available to their employees, while lying to them about their responsibility for the coverage, and joining with the government in the falsehood that the coverage costs no one a cent.


Harold Meyerson’s Blinkered Vision


In his Washington Post column, Harold Meyerson reacts to the Supreme Court’s pending review of two cases involving the HHS “contraception” mandate with reflexive hostility to the claims of employers that they have a right to run their businesses in accordance with their religious beliefs.  But Meyerson hasn’t done his homework, and his ideology runs away with his reasoning powers.

1.  About the homework: first, Meyerson can’t even describe the position of the Green family (owners of Hobby Lobby, one of the corporations whose case is to be reviewed) correctly, writing:

For one thing, the Green family’s acceptance of some forms of contraception and rejection of others, while no doubt sincere, suggests that they, like many people of faith, adhere to a somewhat personalized religion. The line they draw is not, for instance, the same line that the Catholic Church draws.

But the Greens state no objection whatsoever to contraception, properly understood as methods for the prevention of conception–and so the reference to the “line that the Catholic Church draws” is a stupid distraction.  The Greens object to abortion, and thus to the inclusion in the mandate of coverage for abortifacient drugs under the guise of “contraceptives.”  And opposition to abortion is no mere “personalized religion,” as Meyerson’s foolish mockery has it.  It is practically universal among Christians of every denomination who hold to the faith’s historic teachings.

Second, citing the 1990 Smith decision in which the Supreme Court declined to carve out an exemption from a generally applicable criminal statute, Meyerson writes:

Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”

It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.

It may be to Meyerson’s credit that he knows so little about drug abuse that he believes users smoke peyote. (As I know from the all-knowing Wikipedia, it is eaten, or a “tea” is made from it for drinking.)  But that’s not the principal blunder here.  Meyerson never mentions the Religious Freedom Restoration Act, the ground of the Tenth Circuit’s decision in favor of Hobby Lobby.  Smith was based on the First Amendment’s free exercise clause, but RFRA (enacted in 1993) provides a statutory basis for exemptions from federal laws.  As the Supreme Court showed in the unanimous Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal case in 2006, it is perfectly capable of deciding RFRA cases without disturbing Smith.  So Meyerson’s attempt at a preemptive “gotcha” of Justice Scalia is decidedly feeble.

2.  About the ideology: Meyerson harrumphs at length about corporations being treated as “persons” under the law.  Citizens United comes in for the usual abuse, for deciding that corporations have free-speech rights under the First Amendment (a constitutional provision that does not mention “persons,” by the way).  But Meyerson can’t seem to decide whether he wants corporations to be treated like persons or not.  He writes:

Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company’s debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren’t they subject to the same bankruptcy laws that people are? Why aren’t the owners liable for corporate debts as people are for their own?

The purpose of a corporation, and the reason personal risk is mitigated, is to accomplish more than individuals generally can without the corporate form.  That often involves incurring more debt than it would ever be prudent for an individual to bear, which is why it is central to the concept of the business (or any other) corporation that owners bear a limited liability.  The different standards of bankruptcy law reflect legislators’ moral judgments about how best to restructure debts in the very different situations that obtain between individuals and corporations.  If Meyerson has any bright ideas for reforming bankruptcy law, he should let us know.

But this column isn’t an argument.  It’s a rant.  Like everyone else, Meyerson would hold a corporation responsible for any acts it undertakes that he regards as wrong.  That’s fine.  Then he is outraged that corporations are held to have rights under the law, akin to those of individuals—like freedom of speech and the free exercise of religion.  But don’t responsibilities and rights travel in tandem?

Here’s the question Meyerson never stops to ask: when groups of persons unite in some purpose as one body (which is what “corporation” means)—including charitable purposes, religious purposes, educational purposes, business purposes, and even political purposes (for communities at every level can be considered corporations too), are they capable of acting as singular moral agents, such that we would say “the church bought property” or “the company sold cars” or “the university admitted students” or “the state purchased goods” without referring to the acts of individual natural persons?

If the answer is yes, that many natural persons joining together in the corporate form can become one moral agent, then it follows that the corporation is as capable of being a holder of rights as it is a possessor of duties.  Meyerson would like to live in a world, it seems, in which corporations have moral and legal duties but no moral or legal rights.  Quite apart from the impracticality of the world he imagines, this is a deeply defective moral vision.



NYT House Editorial on HHS Mandate Cases


Let’s run through the elementary confusions in this New York Times house editorial:

1. NYT charges that “the real assault on religious freedom [is] the assertion by private businesses and their owners of an unprecedented right to impose the owners’ religious views on workers who do not share them.” It contends that the HHS mandate is necessary to “preserve[] an employee’s right to make her own decisions regarding birth control and not to conform to the religious beliefs of her employer.”

But the plaintiff businesses and owners are not trying to “impose [their] religious views on workers.” If they succeed in refusing to comply with the HHS mandate, their employees would remain entirely free to obtain and use the full range of FDA-approved contraceptives and to “make [their] own decisions regarding birth control.” All that the businesses and owners are objecting to is the Obama administration’s insistence on dragooning them to provide insurance coverage that violates their religious beliefs.

If the Obama administration wants to marginally increase the already easy access that employees have to contraceptives, it can do so through alternative means that don’t violate employers’ religious-liberty rights. That’s exactly what the standards set forth in the Religious Freedom Restoration Act contemplate.

2. NYT asserts that the Religious Freedom Restoration Act “was not intended to cover profit-making corporations,” and it observes that the Supreme Court “has never recognized that a secular corporation is an entity capable of engaging in religion.”

As a textual matter, RFRA extends its religious-liberty protections to all “persons,” and relevant federal law (as the third paragraph of this post explains more fully and as even the dissenter in the Seventh Circuit acknowledged) defines “persons” to include corporations. If a law were to require all restaurants to serve pork and to be open on Saturdays, is it really NYT’s belief that a kosher deli run by a Jewish family would not even have a claim under RFRA if the family has incorporated the deli?

Perhaps because the federal government has never before imposed on employers an intrusion on religious liberty comparable to the HHS mandate, the Supreme Court hasn’t spoken one way or the other to the religious-liberty rights of for-profit corporations. The narrow claim that plaintiffs make is that the individual owners of closely held, family owned companies and the companies themselves have religious-liberty rights under RFRA. As the kosher deli example shows, there is nothing extraordinary about that claim. Indeed, the fact that for-profit and nonprofit corporations can engage in the very same activities makes it very odd that nonprofit status should be an essential condition of whether a corporation is engaged in an exercise of religion.

3. NYT asserts that “any burden imposed on the employer’s religion is trivial—the law [i.e., the HHS mandate], after all, merely allows employees to make independent decisions about birth control.”

Non sequitur alert! The burden imposed on the employer consists of massive financial fines. That burden easily meets RFRA’s low threshold of “substantial.” NYT’s proposition after the dash is irrelevant to the substantial-burden inquiry. (Per point 1, that proposition also falsely suggests that employees somehow lose their ability “to make independent decisions about birth control” if their employers aren’t required to comply with the HHS mandate. Before the mandate was imposed, did employees lack that ability? Of course not.)

4. NYT asserts that the “mandate’s promotion of women’s health and equality is clearly a compelling interest.”

But as Seventh Circuit judge Diane Sykes explained so well, the Supreme Court’s unanimous opinion on RFRA in Gonzales v. O Centro Espirita “has instructed us to look beyond ‘broadly formulated interests justifying the general applicability of government mandates’ and ‘scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Further, when the public interest that the government advances is stated “at such a high level of generality,” it is “impossible to show that the mandate is the least restrictive means of furthering them”: “There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.” In short, RFRA requires that the supposedly compelling governmental interest be defined far more specifically than “promotion of women’s health and equality.”

5. From its first sentence on, NYT misleads its readers into thinking that the HHS mandate is a provision of the Obamacare law itself, rather than a discretionary exercise of regulatory authority by the Obama administration. (When the first sentence refers to “the law’s requirement that employer health plans cover birth control,” the referent for “the law” is the sentence’s earlier mention of “the Affordable Care Act.”) NYT also says that the “thoughtfully balanced law” (i.e., the HHS mandate) “exempts houses of worship and accommodates nonprofit religious and church-affiliated organizations,” but it gives no hint that the intense political reaction against the initial rule forced the Obama administration, over NYT’s vigorous objection, to expand the incredibly narrow initial exemption and to offer some sort of accommodation (however inadequate) for religious nonprofits.

NYT’s evident intent is to obscure how hostile the Obama administration has been to religious-liberty concerns over the HHS mandate.

Wild Order of Federal Marital Benefits for Unmarried Same-Sex Domestic Partners


In an adventuresome administrative ruling, the three-judge Judicial Council of the Ninth Circuit Executive Committee has concluded that an unmarried court employee with a same-sex domestic partner was entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.

Here’s the relevant background:

Margaret Fonberg, an employee of the District of Oregon for four years, complained that the District of Oregon’s failure to afford health benefits for her same-sex domestic partner amounted to workplace discrimination in violation of the District of Oregon’s rules. Fonberg and her same-sex partner are registered under Oregon law as domestic partners. They are not, and cannot be, married under Oregon law, as the Oregon constitution defines marriage as the union of one man and one woman.

After the federal Office of Personnel Management denied Fonberg’s attempt to enroll her domestic partner in her health plan, she filed a complaint under the District of Oregon’s employment dispute-resolution plan. Acting in her administrative capacity, the chief judge of the District of Oregon ultimately ruled that Fonberg was not entitled to relief.

Fonberg sought review of that adverse ruling before the Judicial Council of the Ninth Circuit Executive Committee, consisting of Kozinski, Ninth Circuit judge Richard Clifton, and federal district judge Ralph Beistline. In a four-page unsigned administrative order, those three judges (all Republican appointees) held that Fonberg is entitled to be reimbursed for back pay (measured, I gather, by the value of the spousal benefits not received).

Now let’s look at the panel’s reasoning:

1. The panel determines that Fonberg has been discriminated against on the basis of sexual orientation in two ways. First, she and her partner “are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law.” Second, they “are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor” (the Supreme Court’s decision invalidating the Defense of Marriage Act). “This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employments based on the vagaries of state law.”

a. The panel asserts that Fonberg and her partner “are treated differently from opposite-sex partners who are allowed to marry.” But that assertion is sloppy. Fonberg and her partner are treated differently from opposite-sex partners who are married. That differential treatment is based on marital status, not on sexual orientation, as unmarried opposite-sex partners also don’t receive federal marital benefits.

Further, the panel’s ruling merely creates another form of differential treatment: between same-sex partners (who can’t marry under state law but who are entitled to benefits whether or not they would want to marry) and opposite-sex partners (who aren’t entitled to benefits). Can an unmarried employee now complain of workplace discrimination in not receiving health benefits for her opposite-sex partner? Or are same-sex partners somehow entitled to invoke a presumption that they would marry if they could? (As the panel notes, there is no indication that Fonberg and her partner “are married in any other jurisdiction.”)

b. The panel’s second ground so dramatically extends Windsor that it defies Windsor. Recall that it’s far from clear (as I discuss in point 3 here) that Windsor’s rationale would require that a person who enters into a same-sex “marriage” in one state be deemed married for purposes of federal law when he lives in a state that retains the traditional definition of marriage. But under the panel’s reasoning, a person who is merely registered as a same-sex domestic partner is entitled to federal marital benefits.

Justice Kennedy’s majority opinion in Windsor objects to the failure of federal law to treat as marriages those relationships that a state has “found it proper to acknowledge and protect” as marriages. Kennedy complains that DOMA “undermines both the public and private significance of state-sanctioned same-sex marriages.” (Emphasis added.) How does treating as marriages those relationships that a state has not “found it proper to acknowledge and protect” as marriages respect Windsor?

Further, the panel’s logic would seem to mean that in a state that doesn’t have a domestic-partnership regime any person in a same-sex relationship would be entitled to federal marital benefits. Any other conclusion would “violate[] the [supposed] principle that federal employees must not be treated unequally in the entitlements and benefits of federal employments based on the vagaries of state law.”

(Oddly, while the panel notes that the District of Oregon’s plan didn’t bar sexual-orientation discrimination at the time Fonberg filed her complaint, it doesn’t bother to explain why the plan’s later amendment should be applied retroactively.)

2. On the separate question of discrimination on the basis of sex: The panel declares, in a single sentence, that OPM’s position that employees in same-sex domestic partnerships are not entitled to federal marital benefits draws a distinction “based on the sex of the participants in the union” and thus “amounts to discrimination on the basis of sex … and, under Windsor, constitutes a deprivation of due process and equal protection.”

But this makes no sense. OPM doesn’t draw a distinction “based on the sex of the participants in the union.” OPM denies federal marital benefits to unmarried persons, whether they are in same-sex relationships or opposite-sex relationships.

* * *

As I understand it, OPM is not obligated to comply with the Judicial Council’s administrative ruling, either on Fonberg’s complaint or as a more general practice. (Fonberg’s recourse would instead be to sue OPM in federal court.) Let’s hope that OPM rejects this latest Ninth Circuit hijinx.

Supreme Court Grant of Review in HHS Mandate Cases


A grant of review seemed certain. What was less clear was whether the Supreme Court would grant review only in the Hobby Lobby case from the Tenth Circuit, only in the Conestoga case from the Third Circuit, or in both. (I don’t think that any of grant options would have revealed anything about how the Court views the matter on the merits.) It turns out that it has granted in both.

Judge Wilkinson’s Lament


In an op-ed today in the Washington Post, Fourth Circuit judge J. Harvie Wilkinson III decries the Senate’s abolition of the filibuster for judicial nominees. That abolition, he laments, means that “even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support.”

Wilkinson is obviously correct that the abolition of the filibuster will make it possible for nominees to be confirmed on a purely partisan basis (when, that is, the Senate majority and the president are of the same party). That, unfortunately, does open the door wider for genuine “[i]deologues”—those, for example, who lack “judicial dispassion” and who “[t]ak[e] disagreements personally.” But there are plenty of other political factors (including the costs of even a successful confirmation battle—see point 3 here) that will tend to deter a president from selecting such ideologues. Indeed, the high praise that Wilkinson offers for his colleagues who were appointed by President Clinton—before the filibuster became legitimized as a weapon—undercuts his argument.

Further, the new Senate rule has a major upside that Wilkinson—given his own contentious confirmation battle back in 1984 (a battle that his op-ed doesn’t mention)—ought to appreciate, as it will make it much easier for a good Republican president, with a Republican majority in the Senate, to appoint outstanding judges.

Indeed, I have to wonder whether Wilkinson himself would ever have been confirmed if the standard that he now advocates had been widely accepted at the time of his nomination. I wasn’t following judicial confirmations closely back then, so my knowledge of his confirmation process is sketchy, but from a quick review of newspaper articles I gather that he was an especially controversial nominee who triggered an extraordinary filibuster effort.

In a Senate composed of 55 Republicans and 45 Democrats, the first cloture motion on Wilkinson’s nomination obtained only 57 votes, three short of the 60 needed. Cloture on his nomination was ultimately obtained (with 65 yes votes), and he was confirmed by a 58-39 margin—with what I guess qualifies as a “scintilla of bipartisan support.” Had the idea of filibustering a judicial nominee not still been so controversial, it seems doubtful that he would ever have been confirmed.

E.J. Dionne’s Denial of Reality


In his Washington Post column today defending Senate Democrats’ vote to abolish the filibuster for presidential nominations, E.J. Dionne Jr. purports to be “seeing the world as it is.” But his vision is wildly distorted. Among other things:

1. Dionne contends that “it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dream of.” He tries to support that contention by citing Congressional Research Service data on cloture motions. But, in defiance of the CRS’s own warnings, Dionne is misusing the data he cites.

a. In the report that Dionne links to, the CRS emphasizes, “Cloture motions do not correspond with filibusters”:

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.…

For [various] reasons [that the CRS report spells out], it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. [Pp. 2-3 (emphasis added).]

b. As the Washington Post’s Glenn Kessler observed in a column disputing the Left’s extravagant claims, Senate majority leader Harry 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.) Thus, Dionne’s observation that a very high percentage of the cloture motions ever filed on nominations have “happened under Obama” may well say far more about Reid’s trigger-happy cloture finger than anything else. That impression would seem to be bolstered by a review of Table 6 of the CRS report, which shows that the vast majority of the cloture motions that Reid has filed during the Obama administration either have been withdrawn or have won strong Republican support.

And, of course, it’s very much in Reid’s partisan interest to manufacture a high number of cloture motions when he has so many dupes, willing or otherwise, ready to equate every such motion with a filibuster.

c. Dionne’s claims regarding judicial nominees are especially outrageous. A reader of Dionne’s column would have no idea that it was Senate Democrats who initiated the unprecedented campaign of judicial filibusters against President George W. Bush’s nominees in 2003.

Instead of looking at filed cloture motions, 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, six Obama judicial nominees have suffered a total of seven defeated cloture motions. Plus, one of those six nominees, Robert Bacharach (Tenth Circuit), was defeated on cloture at the very end of July 2012 not as part of a filibuster against him but in an application of the Thurmond Rule on election-year action. (Bacharach was unanimously confirmed in February 2013.) So this data shows that ten Bush 43 nominees were filibustered, versus five Obama nominees.

In sum, what Dionne calls “simply undeniable” is simply false.

2. Reciting a leftist fantasy, Dionne contends that “the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case.” As I’ve previously explained, the entirely innocuous passage in Bush v. Gore on which Dionne’s fantasy is spun reads:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

In short, the majority warned against overreading its reasoning and misapplying it to different circumstances, but the justices nowhere “insisted that the principles … could not be used in any other case.”

3. In a remarkably un-self-aware passage, here’s how Dionne tries to explain away his opposition in 2005 to abolition of the filibuster (for judicial nominees only):

[W]hat animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts.

In other words, what reconciles Dionne’s position then and his contrary position now is his conviction that leftists should “use any means at their disposal to win control of the courts.”

4. Dionne complains that Republicans oppose President Obama’s three pending D.C. Circuit nominees “not on the merits” but “because [the nominees] might alter the circuit court’s philosophical balance.” But Senate Democrats insisted—correctly—throughout the Bush 43 years that considerations of judicial philosophy are part of the “merits” of a nominee. (Where they were and are wrong is in their understanding of sound judicial philosophy.) So the dichotomy that Dionne is positing is a false one.

Unlike Democrats opposing Bush 43 nominees, Republicans haven’t tried to camouflage their concerns about judicial philosophy by smearing Obama’s nominees. That ought to be a major point to their credit, not the basis for a contrived claim that they have no “merits” objections.

This Day in Liberal Judicial Activism—November 24


2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health. In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

This Day in Liberal Judicial Activism—November 23


1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”

Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).

A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.” 

Victory Against HHS Mandate “Accommodation”


Yesterday, in Zubik v. Sebelius, federal district judge Arthur J. Schwab (Western District of Pennsylvania) entered a preliminary injunction in favor of nonprofit Catholic organizations challenging the so-called “accommodation” that the Obama administration has concocted for the HHS contraception mandate.

Until now, all the merits-related rulings on the HHS mandate have come in cases brought by owners of closely held, for-profit companies—the class of plaintiffs that the Obama administration thought undeserving of any religious-liberty protections from the mandate. Now that the accommodation rule has been finalized, the HHS mandate will apply against religious nonprofits beginning January 1. So rulings on other motions for preliminary injunctive relief should be made soon. Judge Schwab’s ruling (which I have yet to study) signals that a new wave of legal problems for the HHS mandate may be arriving.

Making the Case Against D.C. Circuit Nominee Cornelia Pillard


Many articles about the filibuster battle over the D.C. Circuit have asserted that the three pending nominees are all moderates against whom Senate Republicans have no substantive objections.

There is in fact no reason to believe that any of the nominees is genuinely a moderate. For example, Patricia Millett, supposedly the most moderate of the three, is a member of the board of trustees of the left-wing Lawyers’ Committee for Civil Rights Under Law. 

Moreover, Senate Republicans have plenty of substantive objections to the record of Georgetown law professor Cornelia Pillard. As I’ve noted, folks who know Pillard well have described her to me as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

In advance of her rushed hearing, I wrote a five-part series of posts (see parts 1, 2, 3, 4, and 5) on Pillard’s nomination and record. After her hearing, I also wrote two posts on her false and deceptive testimony. Here’s a rough guide:

Part 1: Rush to hearing prevents full review of Pillard’s record.

Part 2: Pillard shows all the signs of a pro-abortion extremist.

Part 3: Pillard’s vague standards of “egalitarian sex education” invite federal judicial micromanagement of the sex-education curricula of public schools and reveal her aggressive view of judicial power.

Part 4: Pillard’s constitutional argument against abstinence-only sex education is replete with illogic and with an ideologue’s dogmatic vision of reality.

Part 5: Pillard is an extremist against religious liberty.

Testimony, part 1: Pillard’s false and deceptive testimony about her sex-education article.

Testimony, part 2: Other false and deceptive statements by Pillard at her hearing.

Given that Democratic senator Patrick Leahy and others have attempted to use Millett’s husband (specifically, his military service) in support of her nomination, I look forward to their highlighting that Pillard’s husband is law professor David Cole, who, among other things, has been a leading critic on the Left on the national-security issues on which the D.C. Circuit plays an important role.

Now that the judicial filibuster has been abolished, it’s time for Senate Republicans to vigorously make the case against Pillard and to make it costly for Senate Democrats to vote to confirm her.

My Perspective on Filibuster Abolition—Part 3


Continuing from Parts 1 and 2:

5. Let’s take a long-term perspective now and briefly consider the four basic scenarios in which judicial nominations can occur:

(a) Democratic president/Senate Democratic majority—This is obviously the scenario in which unavailability of the judicial filibuster is most damaging to Republicans. But, as my discussion of the first two years of the Clinton administration shows, Republicans retain the power to inflict significant political costs for conspicuously bad nominees. (Nominees who are reasonably anticipated to be bad, but who aren’t conspicuously bad, wouldn’t generally be promising targets for filibusters either.)

(b) Democratic president/Senate Republican majority—In this scenario, Republicans generally shouldn’t need the filibuster to constrain the president’s picks. (Of course, if the margin of control is very narrow and some Republicans are ready to jump ship, then the scenario becomes much more like the first.) The idea of completely blocking a president’s judicial nominees is, I think, a pipe dream.

(c) Republican president/Senate Republican majority—This is the scenario in which unavailability of the judicial filibuster offers the greatest opportunity, as a straight party-line vote will suffice to confirm the president’s nominees.

(d) Republican president/Senate Democratic majority—As the last two years of the Bush 43 administration show, a Democratic majority doesn’t need the filibuster to stymie a Republican president’s nominations.

6. My own judgment is that the judicial filibuster was much more valuable to Senate Democrats opposing a Republican president’s nominees than it was to Senate Republicans opposing a Democratic president’s nominees. That judgment rests in part on my assessment (shared by many folks on the Left) that conservatives are winning the public debate over the proper role of judges. Straight up-or-down votes provide political accountability; votes on cloture tend to obscure it.

The mainstream media has also been the willing handmaiden of Democrats on filibusters, as it obscured and downplayed the unprecedented nature of the campaign launched in 2003 and has hyped the Democratic attack on Republican filibusters. (A similar bias surely plays out on up-or-down votes, but seems to me to have less influence there.)

7. The only real prospect for improvement in the courts requires a good Republican president, and the most promising prospect involves a good Republican president and a Senate Republican majority. If this most promising prospect occurs, the unavailability of the filibuster should help Republicans make the best of it—including for Supreme Court nominations. (Although the rule change purports not to apply to Supreme Court nominations, the precedent that has been established clearly does.)

Maybe neither of these scenarios will happen any time soon, but in that case I think that our country may well be in such deep trouble across the board that more lousy judges won’t matter all that much. So I’m happy to take my chances without the filibuster.

My Perspective on Filibuster Abolition—Part 2


Continuing from Part 1:

2. I’ve been an opponent of the judicial filibuster all along—on policy grounds, not constitutional grounds—and I’ve supported the filibuster of Obama nominees as a means of getting rid of the filibuster in the long run. (As the Wall Street Journal puts it today, “The only way to deter bloody-minded Democratic behavior is to treat Democrats as they treat Republicans.”) So although I think that the timing of the abolition is unfair—and that its extension to executive-branch nominees may be particularly damaging to the healthy give-and-take of White House-Senate relations—I welcome its long-term consequences for the judicial-confirmation process. Let me explain why (in this post and the next).

3. Abolition of the judicial filibuster essentially restores the operational status quo that existed before Senate Democrats launched their unprecedented filibuster campaign in 2003. That’s exactly what Senate Republican leadership and nearly all Republican senators were aiming to do when they tried to abolish the judicial filibuster in 2005, only to be undermined by the Gang of 14 agreement. So what can be so objectionable about that status quo ante as a long-term rule?

4. Let me illustrate how that status quo operated by drawing on my experience working on judicial nominations for Senator Orrin Hatch (then ranking member of the Senate Judiciary Committee) during the first two years of the Clinton administration, 1993 and 1994. Republicans were outnumbered in the Senate for most of those two years by a 56-44 margin.

Senator Hatch and other Republicans had especially strong objections to two of President Clinton’s federal appellate nominees during those years, Rosemary Barkett and Lee Sarokin. Yet we never gave a thought to resorting to the filibuster. Instead, we made exhaustive cases against both nominees (see here and here for samples) in order to inflict political costs on Clinton for nominating them and for Senate Democrats who would support them.

Barkett (who had the misguided support of her home-state senator Connie Mack) was confirmed by a 61-37 vote, but the fact that senior Democrat (and former majority leader) Robert Byrd voted no is a sign of the traction that we obtained. Sarokin also was confirmed, 63-35, but six Democrats voted against him, including Democratic whip Wendell Ford and Harry Reid. Indeed, Ford and two other Democrats were so eager to be on record as ardently opposed to Sarokin that they, to our surprise, arranged for a cloture vote so that they could say that they even voted against cloture on him. (Republican leadership supported the cloture motion, which received 85 yea votes.)

In the Senate elections in 1994, Republicans in several key races made Clinton’s judicial nominations part of their campaign. I won’t claim that judicial nominations were a leading factor in the Republican takeover of the Senate in that election, but, from what I recall from the judgment of contemporaneous commentators, they certainly appear to have helped. Indeed, poor Judge Sarokin, in resigning from the bench in mid-1996, expressed his concern that his judicial record would be used against Clinton’s re-election effort.

My point here is that up-or-down votes on a Democratic president’s objectionable judicial nominees can and should be political winners for Republicans. It’s useful to force Democratic senators, especially in red states, to the difficult choice between supporting the nominees (at the risk of alienating many of their constituents) and opposing the nominees (at the cost of alienating their colleagues and the president). By contrast, filibusters protect Democratic senators from ever having to make that choice. (It’s much easier to explain away a vote against a filibuster.)

I don’t mean to contend that this approach is without its obvious downside. Barkett, after all, misserved on the Eleventh Circuit for some 19 years. But the political upside is too readily ignored.

My Perspective on Filibuster Abolition—Part 1


Some thoughts:

1. Yes, it’s galling that Senate Democrats can dish it out but can’t take it. Harry Reid, for example, voted against cloture at least 25 times on 13 different nominees of George W. Bush, yet he’s outraged that Republicans defeated a grand total of seven cloture motions on Obama nominees. As for D.C. Circuit nominees specifically:

a. President Bush nominated the superbly qualified Miguel Estrada  to the D.C. Circuit on May 9, 2001. Senate Democrats did not give Estrada a hearing until September 2002, and they then held his nomination in committee. After they lost control of the Senate in the 2002 elections, they unleashed the unprecedented use of the filibuster against the Estrada nomination and defeated seven cloture petitions. In September 2003, 848 days after his nomination, Estrada withdrew.

b. Bush nominated another outstanding candidate, Peter B. Keisler, to the D.C. Circuit on June 29, 2006. After Senate Democrats took control of the Senate, they never moved Keisler’s nomination out of committee. Keisler’s nomination died some 2-1/2 years after it was made.

c. Bush did succeed in getting four of his nominees confirmed (a net of three, as John Roberts was elevated to Chief Justice), but only after extended delays and massive obstruction. Roberts’s nomination took 729 days to confirmation. Janice Rogers Brown’s took 684 days and encountered two cloture defeats. Thomas Griffith’s took 400 days. And Brett Kavanaugh’s took 1,036 days, including an unsuccessful filibuster effort.

Senate Republicans did filibuster President Obama’s nomination of Caitlin Halligan. But the delays in filling the D.C. Circuit seats owe far more to Obama’s incompetent Keystone Kops escapades. Sri Srinivasan’s confirmation earlier this year came a mere six weeks after Senate Judiciary Committee chairman Pat Leahy afforded him a Judiciary Committee hearing. Yet less than six months after Obama made three simultaneous nominations to the D.C. Circuit, Senate Democrats decided to go nuclear.

As I elaborated in point 2 here, the hypocrisy charge applies with far more force against Senate Democrats (and voices on the Left like the New York Times) than against Senate Republicans, as Democratic resort to the filibuster against Bush nominees dramatically altered the terrain.

How to Stop Worrying and Love the Nuclear Option


Did you feel the nuclear shockwaves resounding from the Senate yesterday afternoon? If not, just wait, because they’re coming.

Senator Reid finally made good on his saber-rattling and pushed forward with his threats to detonate the “nuclear option” that would change the Senate rules to eliminate filibusters for judicial and executive nominees. The walls of the Capitol may still be standing, but we will see fallout from Thursday’s decision for years to come with casualties on both sides of the aisle.

First the obvious: Judicial nominees will all receive an up-or-down vote after cloture is invoked. In the immediate future that means Reid and the Senate Democrats are moving forward with the nomination of Patricia Millett for the D.C. Circuit. Her addition will mean judges on that circuit will be twiddling their thumbs while there are 38 judicial emergencies in other courts, almost half of which don’t even have a nominee. While our nation struggles with a dysfunctional health-care bill and exploding debt, taxpayers will pay about $1 million annually for each redundant D.C. Circuit judge. And, as C. Boyden Gray has explained, adding more politicized nominees will damage the collegiality of that court.

The damage to the D.C. Circuit should not be understated. If, as President Obama and his Democratic colleagues have promised, the new nominees are committed to green-lighting the administration’s power grabs, our constitutional limits on government are in serious danger. The Senate rules may be changeable with a 51-vote majority when senators deem it to be politically expedient, but the Constitution should not change because two-thirds of a judicial panel value expediency over the rule of law.

Going forward, the president may choose to put more radical nominees forward knowing that there will be no filibuster to stop them. But it’s not clear he currently has the political capital to bring such nominees across the finish line. Three Democrats voted against the rule change yesterday; two were vulnerable red-purple state senators Pryor (D., Ark.) and Manchin (D., W.V.). Senator Pryor in particular has been smarting from an ad my organization ran recently in his state calling him out for supporting all of President Obama’s judicial nominees. As the 2014 elections approach and Democrats become more desperate to decouple themselves from the president and his signature “achievement,” I predict that Obama will feel less flexibility, not more, in his judicial picks.

And, by 2016, the shoe may well be on the other foot with respect to the occupants of the White House and the leadership in the Senate. We could see a bevy of budding Scalias and Thomases filling the appellate or even Supreme Court seats. Principled nominees with a clear record of their judicial philosophy need not fear facing years of filibusters. Republicans must immediately make clear that they will take full advantage of the new rules when the tables are turned. That is the only acceptable position now that Democrats have crossed the Rubicon. Henceforth, Republican Senate candidates who incomprehensibly still support judicial filibusters should be called out for supporting the empowerment of liberal minorities at the expense of conservative majorities.

Up until now, Senator Reid has been content to have his cake and eat it too. In July, he was able to get every executive nominee he wanted approved by simply threatening to eliminate the filibuster. I’m sure he would have preferred to leave that as the status quo because it allowed him to neutralize the Republicans’ use of the filibuster while leaving it in place for Democrats to use in the future. Reid is intimately familiar with the usefulness of the filibuster, having perfected its deployment against Bush nominees. He has waxed eloquent about how eliminating the filibuster for judicial nominees would be a shot through the heart of the senate and even the Constitution itself. That makes yesterday’s move not only of questionable long-term wisdom, but breathtakingly hypocritical. And such hypocrisy won’t sit well with the American people, who are increasingly frustrated with the politically-motivated lies and self-serving maneuverings in the context of Obamacare.

The fall-out from yesterday may be muffled, but the move may expose cracks in the Democrats’ foundation. Keep listening in November 2014.

The NYT’s New Views on Nukes


When President Bush was making judicial nominations, the NYT editorial board encouraged Senate filibusters to block his nominees and warned against invocation of the nuclear option.  Now, however, it’s singing a different tune.  As Patterico notes, what was once a threat to venerable Senate traditions is now seen by the NYT as the only “logical” thing for Senate Democrats to do.

Filibuster, R.I.P.


The judicial filibuster is dead. So, too, is the debate about which party will stop at nothing to get its way in the battle over judicial nominations.

When Senate Democrats originated the practice of filibustering judicial nominees during George W. Bush’s presidency, Republicans were tempted to use the nuclear option to kill the judicial filibuster and approve nominees with a simple majority vote. But after much debate and hand-wringing, Republicans decided that short-term expediency could not justify destroying the filibuster, a tradition that for centuries made the Senate a more deliberative and bipartisan body than the House.

Democrats have been similarly tempted in recent weeks as Senate Republicans filibustered three D.C. Circuit nominations designed to flip the second most important court in the land from bipartisan — a 4–4 Democrat-Republican split — to a 7–4 rubber stamp. Conventional wisdom on the Hill said that Harry Reid and his colleagues would not be so reckless and dismissive of Senate tradition as to follow through on their nuclear-option threats. Conventional wisdom underestimated Harry Reid’s ruthlessness.

In deference to the conventional wisdom and the need for a united front, I avoided publicly expressing my concern that Democrats would stop at nothing to pack the D.C. Circuit. Similarly, I would be happy to focus only on the good that will come out of ending judicial filibusters: the opportunity to put more Thomases, Scalias, and Alitos on the Supreme Court — the Supreme Court exception in today’s rule change will last only until the next Justice retires — and the political benefits of elevating the judges issue.

But before I get to the substantial silver lining, honesty requires me to acknowledge that, in the short term, the nuclear option dealt a blow to those of us fighting to limit the damage Obama does to the courts. The immediate impact will be to turn the D.C. Circuit — often the only check on a president’s executive power — into a rubber stamp for Obama’s unilateral rewriting of statutes, his questionable executive orders, his overreaching agency regulations, and his other Nixonian abuses of executive authority.

Over a somewhat longer term, my concern is that the moderating force that was exerted on Obama’s judicial nominations by the filibuster threat is gone. As a result, expect to see more nominations of radicals like Goodwin Liu and a faster remaking of the entire federal judiciary.

Perhaps my biggest concern is that a Supreme Court vacancy will occur before Obama leaves office. As I wrote earlier this year, High Court vacancy in the next three years is more likely than people realize, and if it happens, Obama now has a free hand to appoint a fifth unabashed liberal to the Court. The result would be a return to the bad old days of the Warren Court.

And now for the good news: Democrats’ unprecedented use of the nuclear option ensures that judicial nominations — an issue that typically works to the GOP’s advantage — will be a major issue in the 2014 Senate elections and the 2016 presidential election. Now that there are no checks on a president and Senate majority working together to remake the courts, the importance of controlling the Senate and the presidency is magnified for voters who care about abortion, gay marriage, guns, and the other issues that play out in the courts. 

The Senate’s red-state Democrats, who can no longer hide behind cloture votes and will now be forced to openly support or oppose Obama’s most radical judicial nominees, have a lot to lose from Reid’s brazen move. It is no coincidence that Senator Mark Pryor (D., Ark.), who is facing a tough reelection fight, voted with Republicans today after facing a barrage of ads tying him to Obama’s worst judicial appointments. Opponents of other red-state Democrats running for reelection next year — Landrieu, Hagan, and Begich for example — will surely take note. 

I am worried about the consequences of killing the judicial filibuster. But I am also hopeful that it marks a return to the political dynamics of a decade ago, when Karl Rove said, “There’s no doubt in my mind that we won races all throughout the country [on the judges issue].” 

— Curt Levey is president of the Committee for Justice, whose primary mission is restoring a constitutionalist judiciary.



(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review