Bench Memos

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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.


Judge Scheindlin’s Extraordinary Motion on Her Disqualification


Federal district judge Shira Scheindlin, whom a Second Circuit panel recently disqualified from two stop-and-frisk cases, is “a grandiose gasbag,” “a rambling fool,” and “an unabashed attention seeker.” So we’re told by an extraordinary motion filed yesterday by … Judge Scheindlin’s lawyers, who ask the Second Circuit panel (or the en banc Second Circuit) to reconsider the disqualification order.

To be clear: Scheindlin’s lawyers (a supposed “Dream Team” that includes four law professors) don’t embrace those derogatory descriptions of their client. Rather, those descriptions come in a reader’s comment prominently appended to one of the articles that they attach to their motion. That the lawyers failed to use the readily available presentation of the article that doesn’t include the derogatory comments is a testament to the overall poor quality of their motion. In particular:

1. The motion asserts that the Second Circuit’s order was “procedurally deficient” because “Rule 21 of the Federal Rules of Appellate Procedure carefully assures that where a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before a Circuit court, and an opportunity to seek leave to be heard.” The motion even contends that the Second Circuit’s order “is an affront to the values underlying the Fifth Amendment’s guaranty of procedural due process of law.”

But Rule 21 by its express terms applies only when a “party [is] petitioning for a writ of mandamus or prohibition directed to a [district] court” (which is not the situation in which the panel acted). Even then, it accords broad discretion to the court of appeals to decide whether to invite comment from the district judge:

The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

The experienced judges on the Second Circuit panel surely knew that they could have invited comment from Judge Scheindlin on the disqualification question. They obviously formed the judgment that such comment would be unnecessary and unhelpful. Some commentators may well disagree with their assessment. But there is no basis for concluding that the panel violated Rule 21 (which doesn’t even apply). Nor does a federal district judge have some sort of constitutional due-process protection against being removed from a case.

2. The motion asserts that the Second Circuit’s order was “inaccurate and substantively unwarranted.” But the motion nowhere acknowledges, much less confronts, ample grounds for the order. As I discussed more fully in my initial post on the order, the articles that the order cites reveal that Scheindlin had a general practice of grabbing control of stop-and-frisk cases, and they readily invite the inference that she aggressively employed the related-case rule in order to keep such cases from going to other judges whom she viewed as too pro-government. Those facts would certainly seem to provide an ample basis for questioning her impartiality in such cases.

V.D. Hanson, Meet A. Hamilton


In his NRO column today, Victor Davis Hanson argues that because two terms in office “wear out” our presidents, and second terms are so often failures, “[o]ne-term presidencies — or a constitutional change to a single six-year presidential term — make better sense.”

Knowingly or not, Hanson recapitulates arguments considered and rejected at Philadelphia in 1787.  In the Federalist, Alexander Hamilton defended the decision of the framers to make presidents re-eligible for multiple terms–originally, with no limit, before the Twenty-Second Amendment was added to the Constitution.  The twin goals of the framers, Hamilton argued, were energy and responsibility in the executive.  A presidency both vigorously powerful and responsible in the uses of power was more likely if the office was unified (with power concentrated in one person), if the term of office was lengthy enough to achieve something (four years was considered relatively long in 1787), and finally if the president could be rewarded for his achievements with re-election, or punished with defeat or deterred by failure from even seeking re-election.

But tell a president, or any executive, that his first term is his only one, and he has less incentive to be either energetic or responsible.  He is a “lame duck” from day one, and the Congress need only stymie him and wait him out.  The temptations are great to divert one’s ambitions from service to the public good to serving only one’s own private interests, either with ill-considered, showboating policy proposals, or with plain old corruption with a view to what one will do next.

There is one constitution among the fifty states that is unwise enough to limit its governors to one term, and that is Virginia.  (Technically, one can serve as governor more than once, but one cannot succeed oneself–so there has only been one governor ever to serve two nonconsecutive terms under the present constitution.)  It has by far the most imbecilic executive branch in America.  The constitution’s effect has been to give the commonwealth a long succession of governors both weak and irresponsible, and the landscape of the Old Dominion is littered with idle ex-governors who, seeking the office too young, accomplishing little, and exiting it still in the prime of life, are now wandering about seeking second acts in their careers.  The state’s two senators are ex-governors, and then there’s the where-are-they-now crowd (Wilder, Allen, Gilmore, and now the disgraced McDonnell).  None of them has much to show for his service as governor, except some mess or other left behind for his successors.  Four years from now (in this case, thank heavens) Terry McAuliffe will be an ex-governor, trying to figure out what to do now after his four years of little achievement.

This is not a change I could wish on the presidency.  Nearly all the problems VDH identifies would be exacerbated by a one-term presidency.  Far better to repeal the Twenty-Second Amendment, and return to the wisdom of the framers.


This Day in Liberal Judicial Activism—November 7


2000—So much for respecting a capital inmate’s final wishes.

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay. 


Re: Transgender Grammar


On Twitter, someone who thinks I’m “confused” to maintain that male pronouns should be used for a man who imagines that he’s a woman asserts: “The rule is simple: Refer to transgendered persons in the terms they’d prefer.”

My Twitter reply: Sure. And if someone thinks he’s Napoleon, we must refer to him as His Imperial Majesty. A rule that embraces a delusion is deluded.

(You can follow me on Twitter at @EdWhelanEPPC.)

This Day in Liberal Judicial Activism—November 6


2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it.

In February 2004, President Bush recess-appoints Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

Re: Oral Argument in Bond v. United States


This morning the Supreme Court held oral arguments in Bond v. US, in what looked to be yet another uphill argument for the federal government.

Today’s arguments didn’t garner the coverage in the media that some of the “sexier” issues have this term, and had a surprisingly short line for both public and Supreme Court Bar seats. But the collection of international-law scholars present and even the rare visit by retired justice Sandra Day O’Connor hinted at its real significance.

The case, which Ed previewed here, and in which my organization filed an amicus brief, deals with the scope of the treaty power, or rather, whether Congress’ power to enact laws can be expanded by the ratification of a treaty.

The government claims that Congress may make laws to effect non-self-executing treaties regardless of whether it had independent Article I power to enact those laws. Lawyers for Ms. Bond, defendant in the case, claim that the federal government cannot make laws normally within the state police powers without some specific nexus to proper federal interests, and a treaty doesn’t get you out of that requirement.

The issues may seem arcane, but the importance of vigilantly maintaining the constitutional limits on government power cannot be overstated. Large portions of the argument focused on the difficulty in drawing a line to maintain any limits on government power if the administration’s argument were to prevail.

The absurd consequences of the government’s position are front and center in the case at hand, in which a woman who was trying to poison her husband’s mistress was prosecuted under a law implementing a chemical-weapons treaty. Justices Kennedy and Alito each mentioned how bizarre it was that the government made a federal case out of what was literally a domestic dispute. Justice Alito also pointed out the the law’s terms were broad enough to encompass him handing out Halloween candy because chocolate is a toxic chemical, at least to dogs, and Justice Breyer noted that the terms of the law would seem to criminalize actions long assumed to be purely the subject of state law, such as arson and poisoning.

The lineup after today’s argument seems to be against the federal government, with only Justices Kagan, Sotomayor, and Ginsburg defending a broad interpretation of the treaty power. The three female justices claimed the text of the statute at issue simply mirrored the language in a valid chemical-weapons treaty, and questioned how the treaty could be valid while the statute not. (Paul Clement, arguing for Ms. Bond, along with Justice Scalia, pushed back against the suggestion that the language was identical.). Justice Kagan seemed to be the strongest supporter of the position held by her successor, Solicitor General Verilli, and the government. She attacked Bond on an number of fronts, arguing that the case is equivalent to Missouri v. Holland, the one major precedent in this area of law that concluded almost offhand that if a treaty were valid, it’s enacting legislation would be. She also pushed it onto conservatives’ own turf to argue that the original understanding of the treaty power was broad, citing debates among the Framers as to whether or not to include subject-matter limitations on treaties. (They ultimately chose not to.)

The biggest pushback against the government came from the justices’ concern that the government’s position was without any real limit. That seemed to be Justice Breyer’s major concern, and he repeatedly returned to the problem of allowing a treaty passed by the president and the Senate to expand constitutional power. He suggested several possible ways to limit the government’s interpretation, either by limiting the range of chemicals covered by domestic legislation to those listed in the treaty itself, or by reading the treaty only to authorize legislation about “warlike” use of chemicals. But each time, the solicitor general resisted a limitation to the government’s authority, even suggesting that the court would seriously undermine our foreign relations if it did anything else.

Nan Aron’s D.C. Circuit Myths


Last week’s D.C. Circuit ruling against the HHS contraception mandate – a blow to the President’s unconstitutional religious-liberty agenda – has highlighted one more reason to stop President Obama’s court-packing plan; if it succeeds, the court will be much less likely to have such rulings. Thankfully, as Ed Whelan reported last week, the Senate cloture vote over Patricia Millett’s D.C. Circuit nomination failed by five votes, and I expect the same result if Senator Reid files for cloture over D.C. Circuit nominee, Nina Pillard. As Carrie said today, Senate Republicans deserve a lot of credit for their courage and remarkable unity during this fight. They haven’t backed down despite the Left’s onslaught, including Senator Reid’s empty threats over the nuclear option.

This unity has worked the activist Left into a frenzy, as they have tried to invoke, ex nihilo, fears of a judicial-nominations crisis. Nan Aron of the Alliance for Justice is emblematic of this tactic. Ms. Aron transparently wants to see the D.C. Circuit become a rubber stamp for a leftist agenda – she once complained that the “the majority [on the D.C. Circuit] has made decisions that have frustrated the president’s agenda” – and but has also tried to camouflage her effortsby claiming she’s only “ensur[ing] that our judicial system is healthy and fully able to do its job.” In doing so, Ms. Aron is pushing a few myths about the D.C. Circuit that are worth exposing.

Myth One: The D.C. Circuit is overworked because it has too many “pending cases.”

 Ms. Aron regularly cites how many pending cases the D.C. Circuit has, in a futile attempt to show that it’s over-worked. However, as my colleague Carrie Severino testified last week, citing pending cases “doesn’t make a lot of sense here, unless you’re trying to find the one statistic [on workload] where the D.C. Circuit isn’t dead last compared to other circuits.” As Carrie explained, some of the pending cases might be currently inactive – and therefore irrelevant for determining the court’s workload – and others could just be taking a longer time for the parties to complete their motions. The reality is, the D.C. Circuit can’t be overworked because they are actually regularly canceling oral arguments. As has been repeatedly pointed out, by any other statistical measure – such as appeals filed, which measures the number of new cases each year, or appeals terminated, which is how many cases the court disposes of each year – the D.C. Circuit is significantly underworked. As one D.C. Circuit judge said, “If any more judges are added now, there won’t be enough work to go around.”

Myth Two: The D.C. Circuit is overworked because the court has a more difficult caseload.

Ms. Aron argues that because the D.C. Circuit has “some of the most complex, lengthy, sensitive litigation in the federal courts” with “long trials, multiple plaintiffs and defendants, armies of lawyers, massive records, and long, technical opinions,” the court cannot handle its lower caseload. However, as Carrie testified, the court’s caseload statistics already takes into account a case’s complexity, by assigning more statistical weight to lengthier cases. What’s more, even with its unique caseload, the D.C. Circuit still does not have an official judicial emergency, which suggests that concerns about complexity are overblown.

Myth Three: The D.C. Circuit is operating at less than full capacity.

Ms. Aron tries to make much of the D.C. Circuit’s three unfilled judgeships (out of 11 allocated seats), by claiming that the court is “forced to do its job with 27 percent of its seats empty.” While Ms. Aron is technically correct, she leaves out the work of senior status judges. As D.C. Circuit’s chief judge has pointed out, when you consider the contributions of the court’s senior judges, the court has the equivalent of 11.25 judges covering its workload, which could hardly represent “send[ing] less than a full team into the game.” What’s more, even only considering the work of the eight active judges, the D.C. Circuit will alway have enough to send a “full team,” out to “play” – panels on the D.C. Circuit only require three judges, and the court isn’t playing a long enough “game” to justify a deeper “bench.”

Myth Four: The D.C. Circuit needs new confirmed judges because the Judicial Conference did not recommend a reduction in the D.C. Circuit’s size.

As Ms. Aron characterizes it, the Senate should confirm President Obama’s judges because the Judicial Conference – which is chaired by Chief Justice John Roberts – hasn’t said the D.C. Circuit should be officially shrunk down to its current de facto size. However, the Judicial Conference has given no indication that it would recommend removing a judgeship in almost any situation (and can you name any branch of government that would recommend its downsizing?). For example, even though the D.C. Circuit lost one authorized judgeship in 2008, the conference did not recommend reducing the D.C. Circuit’s size in the two years leading up to that change. If the Judicial Conference did not recommend to eliminate an authorized judgeship then, why would it now? This is especially true because as of 1997, the conference adopted an especially high threshold to recommend eliminating a judgeship, saying “it will not recommend elimination of judgeships except in circumstances where the situation in a court is unlikely in the foreseeable future to support the need for the current number of judgeships” (emphasis mine).

So how can we resolve this controversy? Senator Portman’s Politico op-ed last week laid out the best path forward: legislation that puts Republicans’ money where their mouth is by being willing to prevent both Democrat and Republican presidents from filling these unnecessary judgeships:

With a full complement of judges needed to conduct the court’s business and an even partisan balance (four active judges were appointed by Democrat presidents and four by Republican presidents), now is the time to put these political battles behind us for good. That’s why I’ve cosponsored the Court Efficiency Act, which transfers two authorized judgeships from the D.C. Circuit to other courts that do have busy dockets and need them and eliminates a third as a cost-saving measure.

Even after limiting the D.C. Circuit to its current eight active judges, it will still only be roughly half as busy as the median federal appeals court. Transferring these D.C. Circuit judgeships is not only justified by the court’s relatively light caseload and the needs of other circuits, it would also help bring about a reasonable end to the destructive partisan fights to which both parties have contributed. President Obama may still nominate judges immediately to fill the seats; they will simply serve on federal appeals courts that actually need more judges.

America’s courts were designed to be non-political, to render decisions based on the merits of each case rather than partisan considerations. Likewise, vacancies should be filled based on judicial needs rather than a political agenda, and partisan fights should end at the courthouse door. These institutions — and the trust the American people place in them — are simply too important to do otherwise.

Transgender Grammar


One peculiarity of the case of Burt v. Titlow that the Supreme Court decided today (and that I discussed briefly here) is that the imprisoned habeas petitioner, Vonlee Nicole Titlow, is a transgender male—i.e., a man who thinks he’s a woman. Some briefs (including the state of Michigan’s) use male pronouns for him, while other briefs (including the federal government’s) use female pronouns.

In his lead opinion for the Court, Justice Alito ducks the issue by avoiding pronouns altogether. But Justice Sotomayor, in her concurring opinion, and Justice Ginsburg, in her opinion concurring in the judgment, use female pronouns.

Titlow is biologically a male and continues to be recognized as a male under Michigan law. (Among other things, he is serving his sentence in a prison for men.) As the natural reality comports with state law, I don’t see on what basis the U.S. Department of Justice and Justices Sotomayor and Ginsburg refer to him as though he were female.

Addendum: As an example of the absurdities that this politically correct usage can lead to, consider this sentence from a recent New Republic article: “She has also tried to castrate herself by tying off her testicles.”

Oral Argument in Bond v. United States


The Supreme Court heard oral argument today in Bond v. United States, which presents the important question whether there are any structural limits on Congress’s power to implement a valid treaty. The transcript, which makes for an interesting read, is here, and Lyle Denniston’s recap of the argument is here.

The case arises in a soap-opera setting: When Carol Anne Bond discovered that her husband had impregnated her best friend, Myrlinda Haynes, she set out to punish Haynes by spreading irritant chemicals on surfaces that she expected Haynes to touch—and somehow ended up being prosecuted by federal authorities for violation of the federal statute (the Chemical Weapons Convention Implementation Act of 1998) that Congress enacted to implement the Chemical Weapons Convention.

For further background on the case, I’ll recommend George Will’s recent column as well as the briefs and commentary available at SCOTUSblog’s case page.

Subject to the caveat that one should be wary of trying to infer a case’s resolution from the oral argument, I agree with the general assessment that the argument seems to augur well for Bond’s challenge. Perhaps most encouraging was Justice Breyer’s skepticism of the government’s argument.

U.S. Appeals Court Eases the Burden on Texas to Enact Abortion Safety Regulations


When a Texas federal district court in Planned Parenthood v. Abbott struck down and issued an injunction against two sections of Texas’s health and safety regulations on abortion clinics on October 28, the media waxed poetic. Over the next 24 hours, wide coverage was given to the decision, even by a local TV affiliate of a national network in Toledo at about 6:00 a.m. on Tuesday. Meanwhile, the media gave a collective yawn for the U.S. Court of Appeals for the Fifth Circuit’s stay of that injunction on Thursday, October 31. Also ignored: the fact that the decision to stay the injunction was issued by a panel of three women judges — Priscilla Owen, Jennifer Elrod, and Catharina Haynes — after they reviewed the medical record that Texas compiled in support of its regulations. (As of Monday afternoon, Planned Parenthood has asked Justice Scalia for a stay on the Fifth Circuit’s Thursday decision; that could be referred to the full Court if Justice Scalia denies the stay.)

But in spite of the media’s lack of coverage, large issues are in play. At stake in Abbott are two regulations focused on protecting maternal health from the risks of abortion: a requirement that the abortion provider have admitting privileges at a local hospital in case the abortion patient needs to be admitted for post-abortion medical complications, and regulations on the performance of chemical abortions.

The district court in Abbott reached the surprising conclusion that “the act’s provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” In other words, although the court found no “undue burden” from the regulations, it gave abortion providers in Texas a boundless discretion to ignore the regulations if they invoke the unlimited “health” exception of Doe v. Bolton, which defined “health” to include “emotional well-being.” If the provider thinks that the pregnancy will affect the “emotional well-being” of the woman, he can ignore the regulations. 

On Thursday, the Fifth Circuit limited the district court’s sweeping injunction against the regulations of chemical abortions. The appeals court allowed the district court’s injunction to continue pending appeal only “with respect to a mother who is 50 to 63 days from her last menstrual period” for whom “a surgical abortion is not a safe and medically sound option for her” due to “a physical abnormality or preexisting condition of the mother,” and required the physician doing the abortion (not just any doctor) to make that determination.

The second requirement struck by the district court in Abbott — requiring admitting privileges at a local hospital — is a reasonable requirement of credentials and medical safety, but what the requirement really spotlights is the myth that abortion is “between a woman and her doctor”: Abortions are increasingly done by strangers who fly-in to do abortions and never see the woman again. The Fifth Circuit noted that “[t]here was evidence that such a requirement would assist in preventing patient abandonment by the physician who performed the abortion and then left the patient to her own devices to obtain care if complications developed,” and that “it is the practice of many abortion physicians to instruct their patients to seek care from an emergency room if complications arise.” This is substandard care that severs the doctor-patient relationship and shirks responsibility for post-abortion complications and the reporting of complications. The appeals court lifted the injunction against the admitting-privileges requirement pending appeal.

The Fifth Circuit’s remarkable decision is due to two key factors: the Supreme Court’s 2007 decision in Gonzales v. Carhart and a good medical record made by the state attorney general’s office. 

Keep reading this post . . .

Another Slapdown of Sixth Circuit on Habeas


The far-left Democratic appointees on the Ninth Circuit have earned attention over the years from all their reversals in the Supreme Court. But, at least on a per-judge basis, the Democratic appointees on the Sixth Circuit seem to be doing their best—or is it their worst?—to match them.

Today, in Burt v. Titlow, the Supreme Court unanimously reversed a Sixth Circuit opinion that had granted habeas relief to a state prisoner who claimed to have been deprived of effective assistance of counsel during plea bargaining. (The Sixth Circuit panel was divided, with two Democratic appointees in the majority and a Republican appointee in dissent.) In the lead opinion for eight justices, Justice Alito faults the Sixth Circuit for failing to apply the “doubly deferential” standard of review required of such claims.

Re: The Justices’ Revealing Clerk-Hiring Practices


In addition to Rick Garnett’s post on yet another of Geoff Stone’s ill-founded speculations, I’ll highlight these points made by Eugene Kontorovich on the Volokh Conspiracy:

The relatively high rate of liberal justices recruiting from Republican-appointed judges could simply mean the latter are simply perceived as better judges, mentors, etc. than their Democratic-appointed counterparts.… There has been significantly greater proportion of Republican-appointed judges on the courts of appeals over most of the past two decades. This is the period during which current judges have built their reputation, and Republicans have had a quantitative edge. While this difference has closed in recent years, I assume newly-appointed judges will on the whole do worse in fee[d]ing clerks to the Supreme Court.

Update: Orin Kerr also weighs in with excellent observations, including:

Stone fails to consider supply and demand. As most readers know, liberal students heavily outnumber conservative students at the law schools that tend to generate the pool of circuit clerks. At the same time, the federal judiciary is roughly evenly divided between GOP and Dem appointed circuit judges. This creates an imbalance in law clerk hiring. Clerks often want to work for bosses with similar views, and the judges often feel the same way. But judges also want the best clerks. With the supply of conservative clerks relatively low, GOP-appointed circuit judges regularly hire liberal clerks, while Dem-appointed circuit judges only rarely hire conservative clerks. I think this explains the numbers Stone identifies. Justices who want to choose liberal clerks can choose clerks who worked for Democratic appointed circuit judges or Republican appointed circuit judges. On the other hand, Justices who want to choose conservative clerks will choose almost entirely from former clerks of GOP appointed circuit judges.

See also Kerr’s discussion of Justice Ginsburg’s hiring. As he observes: “[I]f [Stone’s] theory fails when you look at applications, it suggests there may be a problem with the theory.”

This Day in Liberal Judicial Activism—November 5


1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

The Justices’ ‘Revealing’ Clerk-Hiring Practices


In this piece, Professor Geof Stone proposes that a “difference between conservative and liberal justices” is that:

The conservative Justices are determined to spend their time with pre-cleared conservative law clerks. . . . Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology.

In support, Geof points to and characterizes as “revealing” the fact that “of the 20 law clerks appointed this Term by the five conservative Justices . . . 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices . . .  9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.” 

Let’s put aside questions about whether the Republican appointees for whom the “liberal” justices’ clerks worked were or are “conservatives” and about how representative this Term’s hiring is of the justices’ practices over time. And let’s take it as given that almost any and every justice, at least sometimes, takes into account whether a clerkship applicant’s worldview, outlook, philosophy, etc., “fits” well with his or her own. Still: Each of the clerks that Geof is talking about, regardless of the party of the president who appointed the Court of Appeals judge for whom he or she clerked, had a résumé, a work history, several recommendations, a publication history, a variety of life experiences, etc., and so is not reducible to his or her judge’s partisan affiliation. 

In order to say with any confidence that “conservative” justices are hiring who they hire in order to avoid encountering a variety of views (or, for that matter, that the liberal justices were doing what they do in order to encounter such views), or even whether such isolation is a by-product of what they are doing, it seems we would need to know a lot more about these clerks — as, presumably, the justice who hired them did — than the party of the president who appointed his or her judge. Who knows? Maybe the numbers to which Geof points simply suggest that Republican-appointed “feeder” judges are more willing to hire “liberal” clerks (and to support their applications to the justices) than Democratic-appointed judges are willing to hire and support “conservatives”? Again, it seems we need to know more before we can confidently make the ideological-cocooning charge.

(In keeping with the saying that “data” is the plural of “anecdote,” here is some more data: One of my co-clerks for Chief Justice Rehnquist was a brilliant and engaging center-left graduate of the University of Chicago who clerked for a Republican appointee and who had been strongly recommended by a “conservative” professor. For one of his co-clerks, he was stuck with me, a “conservative” who had done anti-death-penalty work, whose recommenders were “liberal” academics, and who had been blessed with the chance to clerk for a truly great judge, appointed by President Carter.)

Geof makes some other points, about credentialing and patronage, that raise interesting but (I think) different questions.  

Re: On the Nuclear Option: Go Ahead, Make My Day


The Wall Street Journal, on Democrat threats to invoke nuclear option over President Obama’s recent executive and judicial-branch nominees:

Democrats are threatening once again to use the “nuclear option” to end Senate filibusters and stop Republicans from defeating President Obama’s…nominees. Let’s see if Majority Leader-in-waiting Chuck Schumer and friends really have the nerve to open a door that every future Republican Supreme Court nominee can walk through. . . .

Go ahead and knock yourself out. If Democrats really want to set a precedent that all nominees can be confirmed by a simply majority, so be it. Democrats might be able to stack the D.C. Circuit, but the practice cuts both ways and it won’t stop with the appellate circuits.

When President Paul Ryan or Rand Paul nominates a property-rights originalist and Roe v. Wade opponent to replace Anthony Kennedy, it’ll only take 51 votes to put him on the bench for 30 years. Let’s see how much liberals at Planned Parenthood, Emily’s List and the National Organization for Women like that idea.

As my colleague Carrie Severino said, Republicans should respond to Senator Reid’s empty nuclear-option threats with this:

Republicans Unite Behind Judicial Impartiality


A couple of weeks ago, Senator John Cornyn wrote an op-ed for arguing that Republicans of all stripes should treat the ongoing battle over the D.C. Circuit as a unifying opportunity to challenge the Obama administration’s overreach. 

Thankfully, that is exactly what it has turned out to be. 

In the face of big threats from Senator Reid and his allies, Republican senators of all stripes voted to block the first of President Obama’s three politically motivated nominees to this important court. Only two Republicans voted for cloture, representing what might be the high-water mark for conservative strength in judicial-confirmation battles.

In recent decades, some of the most important battles in the war for limited government have been waged in the D.C. Circuit. I expect that trend to intensify as President Obama’s overreach is put to the constitutional test. What better way to insulate an agenda from judicial review than to pack the court, just as President Obama seeks to?

Conservatives owe Republican members of the U.S. Senate a round of applause for spotting the threat to the rule of law and taking action. Senators McConnell, Cornyn, and Grassley, in particular, deserve credit for keeping all the frogs in the wheelbarrow, at a time when Republicans are more inclined to scatter.

Unanimous Summary Reversal of Reinhardt Ruling


In a unanimous per curiam ruling today in Stanton v. Sims, the Supreme Court summarily reversed a Ninth Circuit ruling written—surprise!—by Judge Stephen Reinhardt.

Reinhardt had held that a police officer, Mike Stanton, was not entitled to qualified immunity on Drendolyn Sims’s claim that he had violated her constitutional rights by entering her yard (and inadvertently injuring her) in pursuit of a suspect, Nicholas Patrick. As the Court sums up his holding, Reinhardt “found the law to be clearly established”—that’s the standard that must be met to deny qualified immunity—“that Stanton’s pursuit of Patrick did not justify his warrantless entry, given that Patrick was suspected of only a misdemeanor.”

So what was the actual state of this supposedly “clearly established” body of law? Here’s the Court’s summary (following its more detailed discussion):

Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.

This Day in Liberal Judicial Activism—November 4


1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.


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