Bench Memos

NRO’s home for judicial news and analysis.

Lawrence Solum’s “Semantic Originalism”


Several months ago, I praised law professor Lawrence B. Solum’s case for the “truth of semantic originalism.”  Now available online is Solum’s 132-page draft article titled “Semantic Originalism” (April 14, 2008 version) in which he develops his argument more fully.  I’m only some 20 pages into my first read through the article, but I’m confident that anyone seriously interested in debates over originalism will find it worth reading and studying.


Here’s Solum’s basic argument, as outlined in his introduction:  (1) the semantic content of the Constitution is fixed at the time of adoption (the “fixation thesis”); (2) the semantic content of the Constitution is its original public meaning (the “clause meaning thesis”); (3) the semantic content of the Constitution contributes to (but need not fully determine) the content of constitutional law; and (4) we have a defeasible obligation to respect the semantic content of the Constitution (the “fidelity thesis”). If all this sounds very academic and remote, I assure you that Solum writes very clearly and carefully.


This summary passage of Solum’s (pp. 22-23) jumped out at me: 


“The core of originalism is based on common sense about the meaning of the constitutional text and the nature of law.  Once the claims or originalism are pruned of ideological excess and theoretical confusion, the common sense appeal of originalism is difficult to resist.  Anti-originalists needed fancy theories to defend the counterintuitive positions to which they were driven by their attempts to reconcile deep tensions between their core commitments.” 


That’s sure how it’s always seemed to me (as I spell out in my “Are You an Originalist?” test).


Tags: Whelan

Washington Post to Senate Dems: Stop Playing Games on Judges


In this excellent house editorial today, the Washington Post tells Senate Democrats, “It’s time to stop playing games with judicial nominees.”  Democratic senators, the Post urges, “should at least give every current nominee an up-or-down vote and expeditiously process the nominees to the U.S. Court of Appeals for the Fourth Circuit, where five of the court’s 15 seats are vacant.”


Among the “[m]any” nominees who “no doubt warrant confirmation,” the Post praises as “particularly worthy” the nominations of Peter Keisler to the D.C. Circuit and of Rod Rosenstein to the Fourth Circuit.  On Keisler:  “It is a travesty that he has yet to get a vote from the Senate Judiciary Committee,” and he “should be confirmed forthwith.”  On Rosenstein:  He is “unquestionably well qualified” and “has all the makings of an excellent and principled judge,” and the claim by Maryland’s senators that he lacks “roots” in Maryland is “preposterous”.


(As I discussed here, the Los Angeles Times had a similar editorial on Saturday.)

Tags: Whelan


Los Angeles Event


Next Thursday, April 24, I will speak on “Judicial Nominations and the Next President” in my native Los Angeles.  (More precisely, I’m a native of the county, not the city, but I did practice law in Los Angeles for some 4-1/2 years before moving to D.C. seventeen years ago.)  The event, sponsored by the Los Angeles lawyers chapter of the Federalist Society, will begin at noon at the Omni Hotel downtown.

CLE credit is available.  For more information or to reserve a spot, please call BJ Strand at 818-995-0800.

Tags: Whelan

Candor About Liberal Judicial Activism


Ah, the good old days … when liberal judicial activists were candid—at least with themselves and their close associates—about what they were really up to.


From the D.C. Bar’s magazine, here’s an excerpt from a very interesting “Legends in the Law” interview with Georgetown law professor Peter B. Edelman about his clerkship for Justice Arthur Goldberg: 

What was Justice Goldberg like?
He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.  

If Edelman was, as he indicates, initially a slow learner in the ways of liberal judicial activism, he more than made up for it over time.  One example is his 1987 law review article arguing that there is a “constitutional right to some form of minimum income.” 


In December 1994, President Clinton had signed off on nominating Edelman to a D.C. Circuit seat when George Will published a column highlighting Edelman’s 1987 article.  As Will aptly put it, Edelman’s article “demonstrates an impatience with representative government that is tinged with contempt for it.”  In terms strikingly similar to Edelman’s approving description of Goldberg’s approach to judging, Will correctly discerned the “catechism” of Edelman’s “judicial activism”:  “‘constitutional’ is a synonym for ‘just’; what is just is whatever is on the liberal agenda of the moment; the Supreme Court must mandate justice.”  Clinton then pulled the plug on the nomination.

Tags: Whelan

The Voice of NARAL


In Washington, Barack Obama could easily pass as Senator from the state of NARAL — the National Abortions Rights Action League. He has voted against every abortion restrictive bill to cross his path, including several which would sought to relieve taxpayers of the obligation to fund what many of them consider to be murder.

Obama may therefore have surprised a few people (perhaps especially over at NARAL) on Friday, when he declared that he is not — repeat: NOT — pro-abortion. No one is pro-abortion, he declared. “Abortion is never a good thing.”

But not so bad, either. When he was an Illinois State Senator, Obama voted against an infanticide ban (in cases where a baby was born during an attempted abortion), because — he said — the ban might chill women’s right to abortion.

The law passed anyway. An identical federal law passed with overwhelming support on both sides of the aisle. In my presence during a House hearing on that bill, one Democrat who proclaimed himself the “most pro-choice person on the face of the earth” declared his support. Common sense told him, he said, that once the baby is born, that’s it — it can’t be killed. Common sense might even tell someone who believes that abortion is never a good thing that chilling it just a bit — by banning infanticide — might be OK. But, then, Obama is a uniter, not a divider.

According to the report Obama thinks that he has nonetheless earned the support of pro-lifers. “It may be that those who have opposed abortion get a sense that I’m listening to them and respect their position even though where we finally come down may be different.”

But what could it mean for an abortion zealot like Obama to”respect” the pro-life “position”? I have no “respect” for the flat-earth “position,” precisely because I think it has no more validity than Obama thinks the pro-life “position” has.

Obama may really mean that he has “respect” for pro-life PEOPLE notwithstanding his utter rejection of their “position.” But this is hard to fathom, too.

Obama was recently quoted as saying that he would not oppose his daughter’s having an abortion. Why? He would not want to “punish” her for her mistake by saddling her with a baby. Why, would Obama — or anyone else — “respect” a “position” which visits such “punishment” on girls unhappily pregnant.

Obama’s posturing may seem peculiar. But it is not unusual, and certainly not original. It is the standard liberal bait-and-switch on abortion. This trick has two steps. First, Obama changes the object of the discussion — and of any nearby legal right — from the deadly act of abortion to the indvidual’s faculty of choice.

But this move has now all the zip of a Henny Youngman one-liner (“Take my wife, please!”). To see why, conduct this experiment. Stand in front of a mirror. Bring to mind now, not abortion, but slavery, or running illegal migrants across the border in sweltering containers, or, even, Michael Vick’s dogs. Now talk the way Obama does about abortion. I promise that you will lose “respect” for your own “position” within minutes.

Second, following in a long line of liberal academics (see, for example, John Rawls’s infamous abortion footnote in his book, Political Liberalism), Obama wants to make the abortion discussion into a bull session about us. The important matters have nothing to do with abortion (or slavery or Michael Vick). The key questions are: How are WE getting along? Do WE respect one another, despite our disagreements? Does each one of us, at the end of the day, believe that our positions have been treated as the positions of citizens of a democracy ought to be treated?

If Obama seeks unity in the abortion debate, it is the unity of those who are not at risk. His unity is thus scripted: “I see that you favor infanticide, while I just cannot agree. Bloody awkward for those babies, I suppose. But I am so glad that we talked; I even noticed that you were listening. Thank you, ol’chap. Merlot or Chardonnay?”

Pro-life folks want to save lives. It is not about them.

It is all about equality of respect for the unborn. I know many more pro-life people than Barack Obama. I am certain that almost all of them would sacrifice the respect that others have for them and their positions if, by doing so, they could save a single baby’s life.

Barack Obama will not succeed in “uniting” pro-lifers to himself. His achievement is different but still impressive: he has expertly melded staleness with silliness in the one abortion riff. His message is this shop-worn invitation: “Pro-lifers of the world unite — with me. Throw off your yokes, for our burden may be made easy. The way is narrow but well-marked: stop worrying about those you call unborn babies. Let us talk some more and listen some more. And then call it a good day.”


This Week in Liberal Judicial Activism—Week of April 14, 2008


Pileated woodpeckers, lemmings and other wonders:

Apr. 14     

1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit.  Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’”  But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.”  Cook nicely summarizes the broader problem with judicial activism:  “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”  


Apr. 18     

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment.  Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Week for April 7, 1969).  And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.   


Apr. 19     

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.”  The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties.  “The river as plaintiff speaks for the ecological unit of life that is part of it.”  The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.”  “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing.  Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem. 

Apr. 20

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech.  The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event.  The school ordered Harper not to wear the T-shirt.  Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”  As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints. 

Harper’s complaint was rendered moot after he graduated from high school.  In March 2007, the Supreme Court granted Harper’s petition for certiorari and vacated (i.e., wiped from existence) the Ninth Circuit’s ruling. 


For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism

LA Times to Senate Dems: Stop Blocking Judges


In this house editorial today—“Don’t keep blocking judges”—the Los Angeles Times calls for an end to the Senate “logjam” on judicial confirmations.  In particular, the Times says that D.C. Circuit nominee Peter Keisler “deserves a vote” and that the “10 pending nominations to appeals courts and 18 to district courts … should not be put on hold in hopes that a Democrat will be elected president in November.” 

The Los Angeles Times, the largest paper in California, would never be mistaken for a conservative voice.  Let’s hope Senate Democrats—and especially Senate Judiciary Committee member Dianne Feinstein, who displayed commendable fairness on the Fifth Circuit nomination of Leslie Southwick—pay attention.

Tags: Whelan

Where’s Gay Marriage?


This presidential campaign cycle has bypassed several issues white-hot last time out. You can thank (or blame) Iraqi militias and the plummeting dollar for the rearrangement. Among the issues MIA this year is same-sex marriage. Four years ago it was front and center in many contested states; it may have been the difference maker for Bush in Ohio (and, so, in the whole election). Polls show that voters now rank same-sex marriage near the bottom of issues they care about. The candidates say almost nothing about it. Still, there is a real partisan divide here. Obama and Clinton say that they support “civil unions” but not “gay marriage”. McCain opposes both proposals. That is a big difference. But even bigger is that either Democrat would nominate judges friendly to a constitutional right to “gay marriage,” just as Massachusetts’ judges were, and as Justices Souter, Ginsburg, Breyer, and Stevens almost certainly are. You can be sure that McCain would nominate a different breed of jurist. Thus “gay marriage” is really part of the judges issue, which (as I said yesterday) is itself in deep background this campaign. Too bad.

The issue may yet achieve liftoff, when — if — the California Supreme Court decides Griswold v. California before Election Day. Argument in that challenge to California’s law prohibiting same-sex marriage was heard on March 4. A decision in either direction would probably concentrate the candidates’ and the voters’ minds on both marriage and judges — better late than never.

A very able and down-the-middle analysis of the state of play on the marriage issue has just been posted by the Pew Forum here.

Kansas Abortion-Clinic Records and Dubious Privacy Claims


In this Slate essay, Emily Bazelon charges that a special citizen grand-jury proceeding in Kansas is part of a supposed broader pattern of abortion opponents’ using document subpoenas as “a way of challenging doctors who perform late-term abortions and, perhaps, of scaring patients away from clinics.”  Specifically, Bazelon objects to the grand jury’s subpoena of an abortion clinic’s records—redacted to eliminate information that would identify patients—“relating to a total of more than 2,000 women who’d come to the clinic 22 or more weeks pregnant” over a period of five years.  The Kansas supreme court is now reviewing whether to require compliance with the subpoena, and Bazelon outlines her thinking on how the “justices can knock back this subpoena.” 


Bazelon’s presentation is badly flawed.  Consider:


1.  Bazelon contends that the grand jury, in issuing the subpoena, has “run amok”, but, beyond her apparent visceral dislike for anything unwelcome to the pro-abortion cause, it’s difficult to discern an actual argument in support of her contention.  Judges in previous proceedings had already found that the records that the grand jury seeks from 2003—which had been provided to previous investigators—established probable cause to believe that the abortion-clinic operator had committed various abortion-related crimes.  Given that record (and even apart from whatever other evidence is available to the grand jury), it’s hardly wild speculation to suspect that the records from 2004 forward would provide evidence of further crimes.


It’s at best a misleading euphemism for Bazelon to assert that the subpoena is “a way of challenging doctors who perform late-term abortions” (much less “perhaps, of scaring patients away from clinics”).  Rather, the subpoena is a standard tool furthering what Bazelon later acknowledges is “the state’s clear interest in investigating allegations of crime.”  (Is the use of this tool in criminal investigations what Bazelon is complaining about when she nakedly asserts that abortion opponents have “repeatedly tried to subpoena the records of patients who visit abortion providers”?  It would appear so.)


2.  Bazelon relies on a 2004 opinion by Judge Posner “in a similar case” to suggest that the privacy interests of clinic patients in redacted abortion records are so weighty that the subpoena should be quashed.  That suggestion is defective.


First, Posner’s ruling (in Northwestern Memorial Hospital v. Ashcroft) was not in a “similar case”—certainly not in the respects that matter.  In his majority opinion for a divided Seventh Circuit panel, Posner weighed whether “the burden of compliance with [the subpoena for redacted abortion records] would exceed the benefit of production of the material sought by it.”  The intended use of those records, Posner explained, was supposedly to impeach the testimony of a doctor in a civil proceeding, and Posner determined that the records lacked any significant probative value for that purpose.  In other words, he weighed the benefit of providing the records at zero.  


Second, Posner’s rank speculation that some women would reasonably fear that their identities might be determinable notwithstanding the redaction of the records is just that—rank speculation.  It’s one thing for Posner to rely on that speculation in a case in which he’s determined that the anticipated benefits of material responsive to a subpoena are non-existent.  Even rank speculation outweighs nothing.  But in Kansas it would be quite a different matter to have rank speculation trump the probative value of the records responsive to the grand-jury subpoena. 


In other words, the very weighing that Posner did in his case would likely yield a different result in Kansas.  Under Posner’s approach, what the Kansas supreme court would have to do, keeping in mind “the state’s clear interest in investigating allegations of crime”, is soberly assess the probative value of the materials sought, explore how redaction requirements may minimize or eliminate speculative threats to privacy interests, and weigh the resulting “burden of compliance” against the “benefit of production”.  (Kansas law of course might call for a different approach than Posner’s.)


Bazelon also presents Posner’s alternative argument that there would be an invasion of privacy even if it were impossible to determine a patient’s identity.  Posner’s argument—extrapolated hastily and unconvincingly from his “analogy to nude pictures of a woman on the Internet, shorn of identifying details”—nicely illustrates his assertion in his new book How Judges Think that “analogies cannot resolve legal disputes intelligently.”  (I critique Posner’s book in this series of posts— parts 1, 2, 3, 4, 5, 6 and 7.)  In any event, any threat to privacy interests would again have to be weighed against the anticipated benefits from compliance with the subpoena.


3.  There’s ample further reason to believe that concerns over patient privacy are misplaced and hyperbolic.  In particular, the 2003 records from the Kansas abortion clinic have previously been made available to prosecutors, and no one has alleged that any patient has been identified from those records.  As Phill Kline, the former state attorney general and current district attorney who is the supposed leading villain in Bazelon’s piece, has written, “Five years after the investigation started, with scores of criminal charges filed, not one patient has been identified.”


So who’s running amok?

Tags: Whelan

Judge This


Many thanks to Ed Whelan for posting excerpts from yesterday’s floor statements of Senators McConnell and Hatch on stalled judicial nominations.  And thanks to McConnell and Hatch for doing pulling back the curtain, and exposing Senate Democrats as wire-pulling frauds in the great tradition of Frank Morgan (“the great and powerful Wizard of Oz”).  Who would have thought that the Democrats were playing politics with our independent judiciary?   That they were making up the game’s rules as they played? 

But perhaps McConnell and Hatch the overstate the case.  It seems to me that Senate Democrats play the judicial appointment game by by two simple rules, which rules they scrupulously observe.  The first rule is that each judicial nomination is to be treated just like all the rest.  The second rule is that each judicial nomination is unique, and must be treated as a one-off phenomenon. Being the ones in charge, Democrats get to decide which rule applies to any given nominee.  They recognize no obligation to forthrightly justify their choice.

Judicial appointments were, of course, a huge issue in the last several presidential campaigns.  But not so far this year, for the obvious reason that the things which concern voters most — Iraq, the dollar, immigration, health care — depend very little for their resolution (and, in some cases, not at all) upon judges.  Even in the war on terror  judges play a secondary role, policing the boundaries of law enforcement and the treatment of detainees.   When voters cared more — and most — about crime, abortion, marriage,affirmative action, and church-state separation, they cared about judges.

Should we conclude that voters are really liberals when it comes to judges: all they care about is results?  Conservatives have always criticized the likes of Justices Brennan and Douglas on precisely those grounds.  All that Clinton and Obama say about judges is results-oriented: abortion-on-demand must be retained. Roe must survive.  It has been a while since we had a campaign like this one, a time in which the judiciary could be discussed without important results looming overhead.   John McCain has a rare opportunity, then, to make the case for sound constitutional construction and for the prompt and fair consideration of judicial nominees.  But first he will have to make the case that voters should care about that case.

An Environmental Litmus Test for Judges


Leslie Carothers, president of the Environmental Law Institute, suggests that a presidential cnadidate’s views on judicial nominations could be more important (from an environmental perspective) than his or her views on environmental policy.  Expect to hear more of this as environmentalist groups try to explain their opposition to John McCain.

One Judge Through


The Senate confirmed Catharina Haynes to the U.S. Court of Appeals for the Fifth Circuit yesterday, along with several district court nominees.  Haynes is the first appellate nominee confirmed by the Senate in 2008, and only the seventh during the 110th Congress.  This marks a completely unprecedented slowdown in judicial confirmations.

Tempers have already flared over this issue, and it’s likely to get worse unless Senate Democrats ease up on their obstruction.  CQ reports Senate Republicans may block important legislation, such as Judiciary Committee Chairman Patrick Leahy’s patent reform bill, until more judicial nominations move.

McConnell and Hatch on Dems’ Confirmation Obstruction


This morning, several Republican senators made floor statements decrying the ongoing Democratic obstruction of judicial confirmations.  I’ve received the text of the remarks of Republican leader Mitch McConnell and of Orrin Hatch and offer excerpts here.


Senator McConnell: 

It’s been 108 days since this Senate confirmed a federal judge of any kind.  It last did so the week before Christmas, on December 18, 2007.…  It has not confirmed any federal judicial nominees this year, and the Judiciary Committee has held only one hearing on one circuit court nominee since last September.… 

This is another week in which the Committee could have held a hearing, for example, on the qualified nominees to the Fourth Circuit Court of Appeals, but it again chose not to do so.  These nominees meet the Chairman’s own criteria for prompt consideration.  Nevertheless, they have been inexplicably languishing in the Committee for hundreds of days without a hearing while the Fourth Circuit is one-third vacant. 

We were told that having the support of home-state senators “means a great deal and points toward the kind of qualified consensus nominee that can be quickly confirmed.”  Well, Steven Matthews of South Carolina has the strong support of both his home-state senators—one of whom, by the way, sits on the committee of jurisdiction.  But he has been waiting 217 days for a hearing.  And Judge Robert Conrad of North Carolina—whom the Senate has already unanimously confirmed to two federal positions, most recently to a life-time position on the district court—has the strong support of both of his home-state senators.  Yet he has been waiting for 268 days. 

Now, my Democratic colleagues are quick to point to the lack of home-state support as a reason not to give someone a hearing.  But it’s beginning to look like this criterion is being selectively applied: it’s readily used as a reason not to move a nominee—coincidentally, when the nominee is from a state with a Democratic Senator—but it’s ignored when the nominee has the support of two Republican Senators. 

Senator Hatch: 

Some say that the process always shuts down in a presidential election year, so I checked every one since I was first elected.  By today, April 10, in each of those presidential election years, the Judiciary Committee had held hearings for multiple appeals court nominees.  But this year, only one appeals court nominee has had a hearing, and there is not another one on the schedule. 

Since I was first elected, there have been seven Congresses like this one that included a presidential election year.  During each of these presidential election Congresses, the Judiciary Committee held hearings for an average of 25 appeals court nominees.  But today, more than fifteen months into the 110th Congress, the Judiciary Committee has held a hearing for only five appeals court nominees.…

[W]hen I chaired the Judiciary Committee under the previous President and the hearing pace was actually much faster than it is today, [Democrats] did complain early, loudly, and often.…  The current Judiciary Committee hearing pace for appeals court nominees is the worst in decades.…

The majority has stalled judicial confirmation votes longer this year than in any presidential election year since 1848.  Yes, you heard me right.  This is the latest start to judicial confirmations of any presidential election year in 160 years.

Tags: Whelan

The Justices on Legal Writing and Advocacy


Bryan A. Garner, whose superb Dictionary of Modern Legal Usage is the best guide I’ve run across on legal style and usage, has posted his video interviews of eight of the nine justices (all except Souter) on legal writing and advocacy.  I’ve found time to watch only a tiny portion of the interviews so far (partly because I hate how time-inefficient videos are), so I can’t offer my own testament, but they’ve received widespread favorable attention.


As has recently been reported, Garner and Justice Scalia have co-authored a forthcoming book titled Making Your Case: The Art of Persuading Judges.

Tags: Whelan

Re: Steven M. Teles’s The Rise of the Conservative Legal Movement


On NRO, John J. Miller has an interesting audio interview with Steven Teles about his book The Rise of the Conservative Legal Movement (which I praised here).

Tags: Whelan

The Case for Keisler


It is difficult to imagine that any judicial nomination could receive heartier informed bipartisan acclaim than President Bush’s nomination of Peter Keisler to the D.C. Circuit has garnered.  Yet despite all the support I cite below, despite his unanimous “well qualified” rating from the ABA judicial-evaluations committee, despite the Washington Post’s assessment that he “certainly warrants confirmation”, and despite the Los Angeles Times’s specific recommendation (in mid-January 2007) that Senate Democrats confirm him, Keisler’s nomination remains mired in the Senate Judiciary Committee nearly two years after his June 2006 nomination. 


Here’s a sampling from letters of recommendation from folks who know Keisler well and who (from their self-descriptions in their letters or from their public reputations) aren’t conservatives:


Akhil Amar (Yale law professor):  “I would rank Peter at the very top of the distribution curve in terms of sheer intelligence, lawyerly skill, judicial temperament, and overall character.  In short, Peter Keisler has the potential to be one of the most respected jurists of the early twenty-first century.…  I support his judicial candidacy enthusiastically and without reservation.”


Neal Katyal (Georgetown law professor and opposing counsel in the Hamdan case):  Keisler “would be a fabulous judge”; “not an ideologue, but rather a lawyer who took tremendously seriously both his craft and his carefulness.”


Anthony Kronman (Yale law professor):  “He will make a wonderful judge—a truly wonderful judge.”


Stephen Sachs (former Maryland AG):  Keisler is “especially well qualified to be an outstanding appellate judge”; “judiciousness … marks his values, his conversation, even his advocacy.”


George W. Jones Jr. (self-described “life-long Democrat” and former supervisor of Keisler’s):  Keisler is “easily one of the most talented and hardworking lawyers I have ever had the privilege of working with”; “there was never an instance in which I thought Peter approached any issue or conversation with a closed mind”; “one of the best listeners I know”; “always listened respectfully and with a sincere desire to understand my position”; “rare capacity and instinct to reserve judgment until he has heard and considered all sides of an argument”; “I can think of no one more capable than Peter to sit on the D.C. Circuit.”


Nine “Democrats or Independents” who were law clerks at the same time Keisler clerked (in all but one case working in different chambers):  Keisler is “straightforward, candid, and always respectful”; “the respect Peter so consistently shows for opposing viewpoints is one reason that many of us have become his friends”; he “would decide cases based on the law and facts, rather than his policy preferences.”


David Carpenter (self-described “political liberal” who worked closely with Keisler at Sidley & Austin):  “Peter absolutely epitomizes the kind of lawyer and the kind of person who should be sitting on a federal court of appeals”; “personally and intellectually honest, to the very depths of his bones”; “There have been many occasions in which Peter has refused overtures of others to slant the facts of a case in ways that were favorable to our client and that would, as a practical matter, have been immune from sanction or even detection”; “assiduous in trying to see and fully understand both sides of every issue”; “an extraordinarily fine listener”; “willingness, indeed his eagerness, to listen and to give others a chance to persuade him of a position”; “unfailingly courteous to and respectful of the people with whom he deals”


Virginia Seitz (former Brennan clerk whose “political affiliation differs from” Keisler’s):  “I am utterly and completely confident that he will approach the task of judging with both the desire and the ability to follow the law—that his intellectual and personal integrity will make him a judge without agenda and with a fierce commitment to the ideals of fairness and neutrality so critical to the judicial branch.”


Two recently submitted letters are also worth noting:


Jack Goldsmith (Harvard law professor and recent OLC head):  “Peter would be an outstanding judge.…  Peter is a person of extraordinary integrity.  Behind closed doors, when it counted, Peter displayed a principled commitment to getting the law right.…  I do not know anyone who is better suited to be a judge.”


Douglas N. Letter and Mark B. Stern (highly respected career attorneys at DOJ who worked closely with Keisler when he headed DOJ’s Civil Division):  “Between us, we have represented the United States in the courts of appeals for over 50 years and have had the privilege of working with many talented and dedicated members of several administrations.  None, in our experience, is more deserving of Senate confirmation than Mr. Keisler.”


There’s plenty more that I could quote in these letters, and there are plenty more letters of recommendation that I could quote from.  But the question is already adequately posed:  Why are Pat Leahy and his fellow Democrats on the committee obstructing this nomination?

Tags: Whelan

Charles Lane’s The Day Freedom Died


I finished over the weekend former Washington Post Supreme Court reporter (and now Post editorial writer) Charles Lane’s new book The Day Freedom Died:  The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.  Lane provides a remarkably vivid and thorough account of a horrific episode of white-supremacist terrorism in Reconstruction-era Louisiana—the massacre of more than 60 black men in the town of Colfax on Easter Sunday (April 13) 1873—and of U.S. Attorney James Beckwith’s effort to use post-Civil War federal statutes to bring the perpetrators to justice.  The convictions that Beckwith obtained were nullified first by a ruling by Supreme Court justice Joseph P. Bradley, riding circuit as one of the two trial judges, and ultimately by the Supreme Court’s 1876 ruling in United States v. Cruikshank, a ruling that quickly led to the abandonment of Reconstruction and of the promise of federal protection for the elementary rights of blacks. Lane has been guest-blogging about his book on the Volokh Conspiracy, so I’ll refer readers to his posts setting forth his explanation of why the rulings were wrong (here and here) and honoring Beckwith’s heroic efforts. 


Lane’s account provides a concrete picture of the epic challenges and failures of the Reconstruction era.  Among the areas of particular interest to lawyers is his discussion (pp. 117-123) of the Supreme Court’s ruling in the Slaughterhouse Cases (rendered, coincidentally, one day after the Colfax Massacre occurred).  Lane explains that the lawyer challenging the slaughterhouse law was trying to undermine the Reconstruction governments, but that he may have won more by losing, as the Court, in rejecting his arguments, adopted a definition of the 14th Amendment’s privileges and immunities that was so narrow that it ended up creating serious obstacles for Beckwith’s prosecution.

Tags: Whelan

The Wisconsin Lesson


In the weekend edition of the Wall Street Journal, John Fund has an interesting piece on Wisconsin supreme court justice Louis Butler’s electoral defeat last week.  Some excerpts:

On Tuesday, for the first time in over four decades, Wisconsin voters turned out an incumbent justice of their state supreme court. The election showed that, given a clear choice, voters usually prefer a judicial conservative to one with an activist bent.

The Wisconsin Supreme Court certainly bent the rule of law over the past four years, as a 4-3 liberal majority became the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices. Thus the defeat of Justice Louis Butler at the hands of Burnett County Judge Michael Gableman has national implications.… Judge Butler’s defeat sends a signal that a judge who dramatically oversteps traditional boundaries can be brought to account….

Wisconsin is in many ways a liberal state – it hasn’t voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism. 

The Wisconsin election provides further evidence that broad swaths of the public favor judicial restraint over liberal judicial activism.  That’s true not only in state judicial elections but in presidential politics and in Senate elections—when the candidates make the effort to tee the issue up properly. 

Tags: Whelan

This Week in Liberal Judicial Activism—Week of April 7


Intellectual obscenity, two Reinhardts, and three Barketts

Apr. 71969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)
Apr. 82005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt (see This Week entry for Mar. 27), rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph.  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit. 
Apr. 92001—More Reinhardt.  A Ninth Circuit panel, in an opinion by Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments.  The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public.  The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent).  The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive.  In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

Apr. 121990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest.  After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip.  Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross.  Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause.  Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Apr. 132001—Judge Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman.  The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.”  Barkett asserts that the district court injunction properly barred “public student prayer”.

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

Leahy’s “Anti-Catholic” Smear


Last July, President Bush nominated federal district judge Robert J. Conrad to a putative North Carolina seat on the Fourth Circuit.  The ABA judicial-evaluations committee unanimously gave Conrad its highest rating of “well qualified,” and Conrad has the strong support of both North Carolina senators.  But nearly nine months after Conrad’s nomination, Senate Judiciary Committee chairman Pat Leahy has refused to afford Conrad a hearing.


At a committee meeting yesterday, Leahy tried to defend his obstruction by accusing Conrad of making “anti-Catholic comments about a nun.”  In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.”  In short, Conrad was defending the Catholic church from the anti-Catholic comments he believed the nun to have made.  It’s scurrilous for Leahy to accuse Conrad of being anti-Catholic, and it’s just further evidence that Leahy will stoop to ever new lows to obstruct judicial nominees.  

Tags: Whelan


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