Bench Memos

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This Day in Liberal Judicial Activism—November 15


2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

(The case, styled Schuette v. Coalition to Defend Affirmative Action, is now pending in the Supreme Court, with oral argument just last month.)

New Second Circuit Opinions on Scheindlin Removal


The Second Circuit panel that two weeks ago issued a brief order removing federal district judge Shira Scheindlin from two stop-and-frisk cases issued two more opinions on the matter yesterday. One opinion more fully explains the panel’s removal decision. The other opinion denies Scheindlin’s extraordinary motion that asked the panel to reconsider its removal decision.

As this New York Times article puts it, the new removal opinion seems to “soften the tone of the original ruling.” Whereas the original order had bluntly stated that Scheindlin “ran afoul of the Code of Conduct for United States Judges,” the new opinion “emphasize[s] at the outset that we make no findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin” (p. 6), and it “clarif[ies] that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or [other federal law].” These propositions, while very different in tone, are compatible, since, as the panel explains, her conduct “might cause a reasonable observer to question her impartiality” and thus calls for her disqualification under 28 U.S.C. § 455(a).

The panel elaborates the ample basis for its removal order on pages 7 to 12 of its opinion.


This Day in Liberal Judicial Activism—November 14


2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1


Last week’s Seventh Circuit ruling in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius contains two competing comprehensive opinions on whether the HHS mandate violates the plaintiffs’ rights under the federal Religious Freedom Restoration Act. In a series of posts that address the key points of division, I’m going to present and discuss Judge Diane Sykes’s majority opinion (in favor of plaintiffs) and Judge Ilana Rovner’s dissent.

Let’s start with the questions whether each plaintiff corporation (1) is a person under RFRA, and (2) is engaged in an exercise of religion when it refuses to provide health insurance that covers contraceptives.

Judge Sykes observes that RFRA itself doesn’t define person and that the Dictionary Act’s definition of the term—which includes corporations “unless the context indicates otherwise”—therefore applies. Because even the Obama administration concedes that some corporations (i.e., religious corporations) have rights under RFRA, it’s clear that corporations aren’t categorically excluded from RFRA. Therefore, the general Dictionary Act definition of person as including corporations governs. (Pp. 36-38.) There is no statutory basis for defining the term to include only those corporations that are religiously affiliated nonprofit corporations. (Pp. 38-46.)

Further, continues Sykes, “unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.” (P.  47.) But there is nothing disabling about such a mix, as it’s clear that individuals have free-exercise rights when engaged in commercial or profit-making activity. (Pp 47-51.) “On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right.” (P. 51.)

Sykes emphasizes that, unlike large publicly traded corporations, the two plaintiff companies “are both closely held and managed by the families that own them,” so that the families “are in a position to operate their businesses in a manner that conforms to their religious commitments.” (P. 54 n. 17.)

In her dissent, Judge Rovner concedes that a corporation is a person under RFRA (p. 86) but argues that it is not possible for a corporation (or, indeed, any organization, whether or not incorporated) to exercise religion. In an extended frolic-and-detour, she contends that religion is an “intensely personal experience” (p. 86), a “matter of personal conscience” (p. 90), but she never seems to grasp that individuals (like the members of the Korte and Grote families) can and do associate together in corporations and other organizations in order to live out their faith in the world.

Rovner can’t even bring herself to embrace the concept that religious organizations can exercise religion. She instead thinks that the established precedent “[p]ermitting a religious organization, incorporated or not, to invoke the Free Exercise Clause makes sense [only] as a matter of pragmatism,” as a “religious association is often as well if not better situated as the individuals who make up the association to assert the relevant religious interests.” (P. 81; see also p. 83 (“question[ing] whether [a religious organization] has free exercise rights of its own”.)

Rovner’s long footnote (pp. 96-97 n. 5) responding to Sykes’s hypothetical of a Jewish restaurant being denied the right to keep kosher is especially telling. (I confess I’m confused whether she is assuming throughout the footnote that the restaurant is an incorporated business. If she is, her “First” response elides the distinction between a corporation and its owners, the same distinction that she elsewhere maintains is so inviolate.) In Rovner’s view, an incorporated restaurant, owned and operated by a Jewish family abiding by its religious beliefs, would have no free-exercise right of its own to assert. At most, it “might have third-party standing to assert the free exercise rights of its customers.”

Federalist Society Convention


The Federalist Society’s annual lawyers convention in D.C.—always a great series of events—begins tomorrow and runs through Saturday. The theme of this year’s convention is “Textualism and the Role of Judges.” See the impressive list of featured speakers (which includes one Supreme Court justice, 17 or so federal appellate judges, two senators, one governor, and a slew of law professors) and the full convention schedule. On-site registration is still possible.

I look forward to attending.


This Day in Liberal Judicial Activism—November 13


1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

Re: Today’s Cloture Vote on Pillard Nomination


The cloture motion on nomination of Cornelia Pillard to a D.C. Circuit vacancy failed. The final vote, if I heard correctly, was 56 in favor (four short of the 60 needed), 41 against, and one voting present (the functional equivalent of a no vote).

Majority leader Reid ended up changing his yes vote to no for procedural purposes (to preserve his right to bring the matter up again by motion for reconsideration), so Democrats really were three short of the threshold of 60.

Re: Seventh Circuit Ruling Against HHS Mandate


In her account of the Seventh Circuit’s ruling, the ever-unreliable Dorothy Samuels of the New York Times asserts:

Among the federal circuit courts that have spoken so far, three – the Seventh, Tenth and D.C. Circuits – have ratified the dangerous view that secular, profit-making private employers can claim a religious exemption from the Affordable Care Act….

If Samuels is using the phrase “private employers” to mean corporations, then she is incompetently misstating the holding of the D.C. Circuit (and she is also overstating the holdings of the Seventh and Tenth Circuits, which are limited to closely held corporations).

If, on the other hand, she is using the phrase “private employers” to include the individual owners of closely held corporations, then she is treating the corporations as the alter egos of those individual owners—in which case it ought to follow very easily that the individual owners can pursue relief in their individual capacities for any burdens imposed on their religious liberty in how they operate their corporations.

As for Samuels’s tendentious phrasing: The plaintiffs in those (and other) cases are seeking to enforce their rights under the federal Religious Freedom Restoration Act, not to claim some amorphous “religious exemption” from Obamacare. And, even on the (dubious) assumption that there is a compelling governmental interest in marginally increasing access to contraceptives, there is nothing “dangerous” about vindicating the employers’ rights, as the government has ample alternative means of providing contraceptives to their employees. (See part 3 of my law-review essay on RFRA and the HHS mandate.)

Will the Supreme Court Strike Another Blow for Worker Freedom?


On Wednesday, the U.S. Supreme Court will hear arguments in a case involving the rights of employees targeted in a unionization drive. Unions, plagued by decades of declining membership, obviously have a keen interest in the outcome of Unite Here Local 356 v. Mulhall. So, too, does the Obama administration, which filed a strong brief on behalf of organized labor that told the Court, in essence, “nothing to see here.”

In this case, Mardi Gras Gaming entered into a neutrality agreement with Unite Here, which wanted to unionize Mardi Gras’s employees in Florida. Mardi Gras agreed to give the union access to its premises, lists of employees and their addresses, and control over its communications about the union. It also agreed not to contest the union’s effort to use a card-check program — as opposed to a secret-vote — to win employee approval of unionization.

In exchange, the union agreed to not strike against or picket the company during the unionization drive. And, more important for Mardi Gras, Unite Here agreed to support a casino-gambling ballot initiative. Ultimately, the union spent $100,000 on that initiative.

Martin Mulhall, a Mardi Gras employee who opposed unionization, didn’t like that deal — especially the part about depriving workers of a secret-ballot vote. He sued, claiming that the neutrality agreement violated Section 302 of the Taft-Hartley Act. This provision of federal labor law prohibits an employer from giving money or a “thing of value” to any union or union official that “seeks to represent the employer’s employees.”

The Eleventh Circuit Court of Appeals ruled that the neutrality agreement was a “thing of value,” putting it in conflict with contrary views in two other circuits, the Third and Fourth.

Representing Mulhall, the National Right to Work Legal Defense Foundation (NRWLDF) argues that the union obviously believes the neutrality agreement is a “thing of value.” The Foundation points to a parallel suit filed by the union in which it attempts to force Mardi Gras to comply with the agreement. In that filing, Unite Here claimed that the company’s noncompliance had “increased organizing expenses and lost revenues for the Union.”

NRWLDF also argues that the Third and Fourth Circuits are wrong in their view that intangible benefits like those in this neutrality agreement are not a “thing of value” because “thing of value” is a statutory term of art used in many different federal statutes. Numerous court decisions hold that a “thing of value” includes both tangible and intangible benefits and should be broadly interpreted.

Section 302 was intended to prevent extortion in the labor-management arena. Karen Harned, the executive director of the NFIB Small Business Legal Center, told the New York Times, she is concerned that these neutrality agreements “are nothing more than extortion.” As she says, it is very difficult for small employers to fight union threats to picket or shut down a business or interfere with its customers and clients. They simply lack the resources “to fight back if they’re the subject of a union campaign to get them to sign a neutrality agreement.”

The Supreme Court should affirm the Eleventh Circuit’s opinion and toss out these types of neutrality agreements. From their censorship of unfavorable information about unions, to their imposition of anti-democratic card-check programs, these agreements clearly restrict the rights of employees who do not want to be forced into unionization and who want the ability to wage a fair fight to get their views across to their fellow employees — and to cast their vote on unionization in secret.

Today’s Cloture Vote on Pillard Nomination


At 4:30 5:30 this afternoon, the Senate is set to vote on a motion to invoke cloture on the controversial nomination of left-wing Georgetown law professor Cornelia Pillard to a D.C. Circuit vacancy. 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.”

I’ve written a five-part series of posts (see parts 1, 2, 3, 4, and 5) on Pillard’s nomination and record as well as 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.

On Patricia Millett’s separate nomination to the D.C. Circuit, Democratic senator Patrick Leahy and others have attempted to use Millett’s husband (specifically, his military service) in support of her nomination. So by that standard it’s surely appropriate to highlight 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.

Unusual Renomination of Ronnie L. White


Sixteen years ago, President Clinton nominated Ronnie L. White, then a justice of the Missouri supreme court, to a federal district judgeship in Missouri. Amid charges that White’s record showed him to be soft on crime, White’s nomination was defeated on a 54-45 floor vote (a vote on the nomination itself, not on cloture) in the Senate.

Just last week, President Obama renominated White to a position on the same federal district court. White is now 60.

Jeffrey Rosen’s Wildly Distorted Account of Justice Scalia on Prayer


In an essay titled “Antonin Scalia Just Cracked the Door to State-Sanctioned Prayer: Religious supremacy may be on the rise at the Supreme Court,” the New Republic’s Jeffrey Rosen offers his take on last week’s oral argument in the legislative-prayer case, Town of Greece v. Galloway. As it happens, every assertion that Rosen makes about Scalia that might tend to support the screeching title of his essay is wrong.

Rosen attributes to Scalia a position that Rosen labels “religious supremacism.” As Rosen describes it, that position would mean that “even openly sectarian prayers in courtrooms and schools might be permissible if they were opened to all religions and if citizens weren’t legally coerced to participate.” Let’s set aside how odd the label “religious supremacism” is for a position that would also allow all state-sponsored prayer to be banished from “courtrooms and schools” and everywhere else. The more fundamental point is that Scalia has long repudiated the position that Rosen ascribes to him—and that, contrary to what Rosen claims, Scalia didn’t remotely embrace it in last week’s oral argument.

Rosen quotes a passage from Scalia’s dissent in the 1992 case of Lee v. Weisman to support his claim that Scalia would construe the Establishment Clause to allow “even openly sectarian prayers in courtrooms and schools.” That passage would leave the trusting reader to believe that Scalia has adopted a test under which “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” is a necessary element of an Establishment Clause violation. But, in a passage much quoted in the briefs in the pending case, Scalia rejected that position in his dissent in Lee v. Weisman:

I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Holy Trinity Church v. United States, 143 U.S. 457 (1892), ruled out of order government-sponsored endorsement of religion — even when no legal coercion is present, and indeed even when no ersatz, “peer pressure” psycho coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ).

Again at oral argument last week, Scalia made clear his belief that legal coercion is not a necessary element of an Establishment Clause violation. The passage (transcript, at 35:23-36:3) doesn’t read well because Scalia misspeaks and then corrects himself:

If there is — if coercion is the test of the Free Exercise Clause, why do we need a Free Exercise Clause? If there’s coercion — I’m sorry — of the Establishment Clause, why do we need the Establishment Clause? If there’s coercion, I assume it would violate the Free Exercise Clause, wouldn’t it?

It’s clear that what he means is: “If coercion were the test of the Establishment Clause, why would we need the Establishment Clause, since coercion would also violate the Free Exercise Clause?” Thus, he immediately follows up with: “So it seems to me very unlikely that the test for the Establishment Clause is identical to the test for the Free Exercise Clause.” (Transcript, 36:6-8).  

Consistent with his dissent in Lee v. Weisman, there is also nothing in Scalia’s comments and questions at oral argument that remotely support Rosen’s charge that Scalia is adopting a position that would “allow[] sectarian prayers in any public setting.” Rosen contends that Scalia “seemed to balk at the concession” by the town’s counsel that the context of legislative prayer is unique. But far from balking at that notion, Scalia himself repeatedly embraced it, as he emphasized “what distinguishes legislative prayer from other kinds” (transcript at 40:19-20; see generally 40:18-41:14, 49:6-16, 50:2-4). In other words, his position, understood within the context of his dissent in Lee v. Weisman, is that legislative prayer doesn’t involve “government-sponsored endorsement of religion” in which sectarian expressions are “out of order.”

There are, to be sure, plenty of reasonable grounds on which one might seek to contest Scalia’s position. But distorting it beyond recognition shouldn’t be one of them.

Seventh Circuit Ruling Against HHS Mandate


Having been out, I’m only now highlighting this important Seventh Circuit ruling (in Korte v. Sebelius) from late last Thursday against the HHS contraception mandate. The ruling comes in two cases consolidated on appeal, each involving a Catholic family and its closely held business corporation.

The Seventh Circuit panel was divided. The impressive majority opinion by Judge Diane Sykes (joined by Judge Joel Flaum) rules that the plaintiff individuals and corporations are entitled to preliminary injunction relief against the HHS mandate. Among other things, Judge Sykes rules that (1) the individuals have standing to challenge the HHS mandate (slip op. at 22-25; the dissenter agrees on this narrow point—see slip op. at 78); (2) closely held, for-profit corporations are “persons” within the meaning of the federal Religious Freedom Restoration Act (slip op. at 35-54); (3) the HHS mandate substantially burdens the plaintiffs’ exercise of religion (slip op. at 54-60); and (4) even on the assumption that the HHS mandate furthers a compelling governmental interest, it does not do via the means that is least restrictive of plaintiffs’ religious liberty (slip op. at 60-64).

Judge Ilana Rovner’s 90-page dissent vigorously takes issue with the last three points.

When I have had time to digest the opinions, I may offer some more extensive commentary.

Again, cases involving challenges to the HHS mandate are already pending before the Supreme Court, and review is almost certain to be granted in at least one of those cases (with the others held).

For what it’s worth: Judge Sykes is a Bush 43 appointee; Judge Flaum is a Reagan appointee; and Judge Rovner is a Bush 41 appointee.

This Day in Liberal Judicial Activism—November 12


1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Texas Challenges EEOC’s Felon-Hiring ‘Enforcement Guidance’


Greg Abbott, Texas’s state attorney general, has filed a most excellent complaint, challenging the U.S. Equal Employment Opportunity Commission’s “enforcement guidance” that tries to limit employers’ use of criminal-background checks in hiring. This fits in nicely with John Fund’s also excellent home-page piece today.

Unconstitutional ‘Affirmative Action’ Regulations under Executive Order 11,246


The federal government’s attempt to coerce private employers into ignoring the criminal records of prospective employees is not faring well. In EEOC v. Freeman recently, a federal district court threw out the government’s lawsuit, noting that the “careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States” — and that the government’s case here was riddled with legal and factual holes.

That’s not the end of the matter, of course, and you can count on the EEOC pressing ahead in other cases. But what’s even more remarkable is that, at the same time the federal government is using “disparate impact” arguments to discourage companies from using selection criteria that actually have nothing to do with race, other federal regulations explicitly pressure them to consider race, ethnicity, and sex in making hiring and promotion decisions.

Those are the regulations that implement Executive Order 11,246, through which the Department of Labor requires companies that contract to do work for the federal government to have “affirmative action” plans that include “goals and timetables” when the “incumbent” percentage of “minorities or women” is less than “their availability percentage.”

It is wrong as a matter of law and policy for DOL’s Office of Federal Contracting Compliance Programs to require covered federal contractors to set goals and timetables whenever they have a certain degree of “underrepresentation” among minorities and women. The regulations’ present approach is at odds with the current case law. It is quite clear that this use of classifications based on race, ethnicity, and sex will trigger judicial strict scrutiny; that mere statistical disparities are not sufficient to justify the use of racial classifications; and that, even if they were, there is no justification for goals and timetables to be triggered when women and minorities are “underrepresented” but not when men and non-minorities are.

In Adarand Constructors, Inc. v. Peña, the Supreme Court ruled in 1995 that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” The U.S. Court of Appeals for the D.C. Circuit elaborated three years later: “We do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. . . . Strict scrutiny applies.”

The courts have allowed the use of racial considerations in employment when they are needed to remedy some entity’s past discrimination, but there is no plausible remedial basis for the government’s approach here.

The federal government, after all, has no recent history of systemic discrimination and has banned discrimination by its contractors since at least 1961, and the private sector as a whole has been prohibited from engaging in such discrimination since the passage of the Civil Rights Act of 1964. And even if there were a remedial basis, the across‐the‐board approach taken by the regulations is not narrowly tailored. Statistical disparities can result from reasons that are not related to discrimination, and they can almost always be addressed through race‐ and gender-neutral means if they are.

The regulations are in fact also at odds with Title VII of the 1964 Civil Rights Act. Under this statute, too, before prohibited classifications can be used a remedial predicate must be met, showing a “manifest imbalance” in a “traditionally segregated” position, as the Supreme Court ruled in its Weber and Johnson decisions years ago. One hopes that 49 years after the 1964 Act made other employment discrimination illegal there is not much “traditional segregation” left.

The Court’s 2009 decision in Ricci v. DeStefano—the New Haven firefighters case—further suggests that an employer’s track record of discrimination against, say, blacks must be so bad and so recent that if it did not consider race, there is a “strong basis in evidence” that it could be successfully sued for that failure. That’s a very high bar. If, per Ricci, an employer cannot legally consider race unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to consider race when it is not motivated by fear of a Title VII lawsuit at all?

What’s more, Weber and Johnson also held that considerations of race, ethnicity, and sex cannot “unnecessarily trammel” the interests of other employees— and, in 2013, there will never be a situation where the “necessary” way to fight discrimination is through considering race rather than simply taking steps to ensure that it isn’t considered.

Indeed, the current regulations are not only illegal, but as a practical matter result in more, not less, discrimination. The regulations inevitably pressure companies to “get their numbers right” by using surreptitious quotas and other hiring and promotion preferences based on race, ethnicity, and sex. This has been widely remarked upon and is generally accepted — and is the reason that pro‐preference groups are so enamored of the current approach.

The Center for Equal Opportunity’s experience in dealing with companies also leaves no doubt about it: Companies we have asked to make a commitment to rejecting preferences regularly cite the regulations as a constraint in this regard. Obviously, the intent and result of the regulations are to push companies to keep an eye on skin color, national origin, and sex in making employment decisions. Even if this were legally defensible, it is bad policy because it is unfair and divisive, and it discourages employers from hiring and promoting simply on the basis of merit.

Mark Pryor, Running Away from His Support for Obama Judicial Nominees


Last week, the Judicial Crisis Network released this video, which will be running on TV stations in Arkansas over the next two weeks:

The video highlights the extent to which Mark Pryor has served as President Obama’s loyal toady when it comes to judicial nominations. As we explain, he has voted for every single one of President Obama’s liberal judicial activists, and supports President Obama’s ongoing plan to pack the D.C. Circuit — an underworked court — with judges whose concept of judicial review coincides pretty neatly with the Obama political agenda.

Mark Pryor’s office has circulated this document in response to the video, explaining that he did not vote for three of President Obama’s judicial nominees. Well, he ain’t a lawyer for nothin’. Each of the three votes cited by his office involved nominations for which he didn’t vote at all, and which were confirmed without opposition.

Sheri Chappell: 90-0 (Pryor did not vote)
Edward Davila: 93-0 (Pryor did not vote)
Joseph Greenaway: 84-0 (Pryor did not vote)

In other words, every single time Senator Pryor voted on a judicial nominee, his vote was to support President Obama, and he does not deny that fact. Or, to put it another way: He has never voted against one of President Obama’s judicial nominees. None. Zero.

Pryor’s office also claims that he “took [a] lead role in confirming Bush judicial nominations.” Again, he ain’t a lawyer for nothin’. Conveniently omitted is the fact that he supported the historic obstruction of Miguel Estrada’s nomination to the D.C. Circuit, which was eventually withdrawn after he was filibustered seven times.

So, we’ll say it again: When it comes to judges, Mark Pryor puts Obama first and Arkansas last.

This Day in Liberal Judicial Activism—November 9


1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

The D.C. Circuit and ‘Cooperative Federalism’


If you are wondering why President Obama wishes to stack the D.C. Circuit, check out Senator Jeff Sessions’s recent report on EPA overreach, “Neglecting a Cornerstone Principle of the Clean Air Act: President Obama’s EPA Leaves States Behind.” President Obama knows that the best way to protect this agenda from high-profile losses on the D.C. Circuit — which have happened in the recent past — is to fill the courts with more favorable judges, hence his court-packing plan.

The Left’s modus operandi for responding to a report like this — which highlights their “fatal conceit,” here that the EPA can centrally plan our country’s environmental policy — is to accuse conservatives of protecting business interests at the expense of the environment. This report pushes back on these accusations.

The report argues that the EPA’s approach to the Clean Air Act is increasingly departing from a “cooperative federalism” approach. As Senator Sessions explained, the EPA has refused to take this approach, “which recognizes that achieving environmental goals in our constitutional republic requires mutual collaboration between the States and Federal Government,” even though it is a “cornerstone” of the Clean Air Act.  Instead, the report explains, the EPA “routinely tries to ignore or circumvent the States or . . . control them by heavy-handed actions.”

The report argues in detail why “cooperative federalism” is so important to environmental protection, and how the EPA has ignored this:

Cooperative federalism also has a pragmatic basis. States and localities are best suited to design and implement compliance strategies to protect human health and the environment in a manner that appropriately accounts for local needs and conditions.6 Some activities have interstate effects, and Congress has provided enhanced federal roles for those specific contexts; yet, many, if not most, environmental and land use issues are essentially intrastate matters more effectively and efficiently addressed at the State and local level. As a former chairman of the Texas Commission on Environmental Quality has explained in a recent Heritage Foundation report, “The state and local governments’ direct accountability to real people has catalyzed creative and cost-effective solutions to air quality problems in stark contrast to the heavy-handed control, bureaucratic red tape, and scientifically unjustified regulatory mandates characteristic of the EPA’s approach.”

While cooperative federalism is a foundation of many federal environmental statutes,9 this report focuses on the Clean Air Act (CAA) and, more specifically, concerns that the current Administration’s EPA too frequently ignores cooperative federalism principles and breaks faith with the States in the implementation of the CAA. For example, the Attorneys General of 17 States (and the senior environmental regulator of an additional State) wrote EPA Administrator Gina McCarthy on September 11, 2013, in response to “EPA’s aggressive proposal for GHG performance standards for new [electrical generating units (EGUs)] and indications of a similarly aggressive stance on existing EGUs,” noting EPA’s unwillingness to appropriately defer to State authority under the Clean Air Act in recent years.” State officials from every corner of the country are publicly expressing serious concerns with EPA’s recent CAA actions, such as: [Florida, Alaska, Alabama, Kansas, Montana, North Carolina, Ohio, Pennsylvania, and Texas].

The report also highlights the staggeringly high number of states that have complained about the EPA’s failure to follow cooperative federalism with the Clean Air Act:

You can expect that the D.C. Circuit will hear a number of challenges to the EPA, which is why it’s so important to stop President Obama’s court-packing plan. These lawsuits should be decided by judges who will neutrally evaluate these challenges, instead of judges who will rubber-stamp President Obama’s environmental agenda.

What Happens in Greece Stays in Greece?


The oral argument yesterday in Greece v. Galloway convinced me of two things. One is that the Court is going to reverse the Second Circuit’s opinion (holding the town’s prayer practice unconstitutional). The other is that no one on the Court — based upon what transpired during the argument – has a good idea of why. I do not mean by this second comment just that I – Gerry Bradley – think that the justices are clueless about this. I do think that. But I mean also that the justices all but confessed that they have no sound idea about how to think clear and coherent thoughts about legislative prayer. Justice Kagan recognized it when she said that the Court messes things up whenever it touches this matter of public prayer.

The Second Circuit opinion proves that Kagan is right. Guido Calabresi is a very smart, immensely experienced, and exceedingly fair-minded judge. He wrote the opinion in Galloway. In it he tried hard to bring Marsh v. Chambers and Establishment Clause law more generally to the matter at hand. The result was, well, a train wreck. The best Calabresi could do finally was this: looking at “the totality of the circumstances” “in context” and as a “whole” where no one “aspect” was controlling, the court’s (i.e., Calabresi’s) “legal judgment” (not, mind you, his “personal judgment” ) in light of the “underlying purposes” of the First Amendment and in light of the “consequences measured in light of these purposes,” was that a “reasonable, objective observer would perceive” that the town “affiliated itself with Christianity.”

My Cousin Vinny could not have made that one up. 

Besides, Calabresi’s supporting reasoning was not just unconvincing. It was unintelligible (as I described in my post yesterday on Public Discourse).

In any event, Calabresi could not have signaled more clearly that judicial resolution of these sorts of cases would be tantamount to an umpire’s call: ball or strike, and there is an end to it. One case could scarcely count as precedent for another. Each decision resolves the question on these facts, and none other. So positioned, one federal judge is soon going to reprise Potter Stewart’s most memorable line: cannot give any account of what “obscenity” is. But I sure “know it when I see it”.

In these circumstances the Supreme Court’s decision could go in either of two directions. One is that predicted by my colleague Rick Garnett: a lopsided reversal, announced in a terse opinion which cites Marsh, and does little more. The alternative is a reversal, with multiple opinions at least on the majority side.

For what it is worth, I think Rick will prove to be prescient.


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