Bench Memos

NRO’s home for judicial news and analysis.

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.

Judge Daughtrey’s Tantrum


After a month of gloom ever since the Supreme Court’s denial of certiorari in several same-sex marriage cases on October 6, there came last Thursday, November 6 the welcome news that a 2-1 majority of a Sixth Circuit panel had upheld the marriage laws of Michigan, Ohio, Kentucky, and Tennessee.  Judge Jeffrey Sutton has been rightly praised (here and here at NRO, for instance) for the clarity and persuasiveness of his opinion for the majority in DeBoer v. Snyder

What has been less remarked is the astonishingly poor quality of the dissent written by Judge Martha Craig Daughtrey.  Some commentators have pointed out that her 22-page opinion begins with snark (“The author of the majority opinion has drafted what would make an engrossing TED talk or, possibly, an introductory lecture in Political Philosophy”), and ends with the insinuation that her colleagues have violated their oath of office by declining “to right fundamental wrongs.”

But I have not seen anyone point out that it is Daughtrey who seems not to grasp the oath she quotes, requiring judges to “administer justice without respect to persons.”  That not only means that the rich and powerful get no favored treatment.  It means, more generally, that every claim brought into court is viewed dispassionately, with detachment, without presuppositions about where justice lies, with the claims of the litigants measured by accepted norms of law.

Judge Sutton’s opinion for the court in DeBoer is a model of exactly that dispassionate detachment.  But Judge Daughtrey’s opinion is driven not by legal reasoning but by passionate outrage.  It is acceptable for a judge, especially in dissent, to give voice, even in a kind of prophetic mode, to passionate denunciation of error and injustice.  But such denunciation should follow from dispassionate legal analysis proving one’s side of an argument.  Hammering home one’s conclusions passionately is fine.  But if one’s premises begin in passion, not in reason, fallacies, errors, and sloppy argumentation will probably result.

From the beginning, Judge Daughtrey betrays herself in just this way.  She writes on her first page that the majority fails to “recogniz[e] the plaintiffs as persons, suffering actual harms as a result of being denied the right to marry.”  One’s hair should stand on end upon reading this, for the entire purpose of a legal case like this one is to determine whether a harm has occurred because a right exists and a power has illegitimately infringed that right.  Rights and powers, harms and remedies: these are the conclusions in law for a decision such as this.  Daughtrey has made a presumed “right” and a “harm” to that right the major premise of her argument, and thus begun her entire opinion by begging the question in the case.  Is there a constitutional “right to marry” that extends to couples of the same sex?  Have the plaintiffs been harmed at all?  Sutton’s opinion asks these questions and answers them.  Daughtrey “knows” already, and can’t be bothered to support her presuppositions.

Of course, there is a subtle but vital difference between “harm” in the legal sense and “feeling aggrieved” in some psychological sense.  Daughtrey conflates the former with the latter, a move confirmed a page later when she complains that the question “But what about the children?” is ignored by the majority.  Then she delivers herself of an extended discourse on the circumstances of the plaintiffs in the cases reviewed by the court.  But this, as every student of logic and rhetoric knows, is a fallacy, the argumentum ad misericordiam, an argument that we should be moved by pity or compassion for someone whose situation is portrayed as pitiable.  But the question “what is justice?”—much less the narrower question “what is the law of the Constitution?”—is not answered by asking another question, “how much do you feel sorry for the plaintiffs when I describe them sympathetically?”  It’s a classic move in the closing arguments of personal injury lawsuits, but it has no place in constitutional law.

Daughtrey’s opinion does not get any better after these opening gambits.  Her best bits are simply borrowed from other judges’ recent opinions in same-sex marriage cases, with her heaviest reliance on the sprightly prose and bad reasoning of Judge Richard Posner of the Seventh Circuit.  Perhaps she could not be bothered to do her own thinking “[b]ecause the correct result is so obvious,” as she herself puts it.  When she does offer us something that passes for thinking, it’s an empty truism like this: “the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite.”  Well . . . yes.  Now can you tell us why you think some “individual rights under the Fourteenth Amendment” have been violated by a plebiscite conforming to the understanding of marriage that has characterized the law for many centuries?  Um . . . no.  She cannot.

It seems to have something to do with “progress,” though.  In a particularly lame response to Judge Sutton’s analysis of whether the original meaning of the Constitution is any help to the plaintiffs (and of course it is not), Judge Daughtrey complains that Sutton refers to what “the people who adopted the Fourteenth Amendment understood it to require,” and then writes: “The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws . . . culminating in the Loving decision in 1967.”

Really?  Has Judge Daughtrey so completely checked out of the world of legal scholarship as not to know there are serious scholarly arguments that Brown v. Board of Education and Loving v. Virginia represent the original understanding of the Fourteenth Amendment?  There are active debates to this day with respect to whether those arguments hold water.  But they do exist and are taken seriously.

Why would Judge Daughtrey write so dismissively of the search for the original meaning of the Fourteenth Amendment?  Very simply, because it is a) traditional to undertake such a search, especially in cases under any provision of the Constitution where there is a question of breaking new ground, and b) because it gets in her way.  It is fatal to her ideological project of imposing same-sex marriage on the country by means of judicial review. 

Readers of Judge Sutton’s opinion, taken with his clear reasoning and his elegant prose, might not have noticed something else about it on their first reading of it.  It is customary, in either the body or the footnotes of the opinion for a divided court, for the author of the majority opinion to quote and (attempt to) rebut any published dissent.  Judge Sutton never once stoops even to notice Judge Daughtrey’s dissent.  He never even mentions the existence of a dissent in the case.  Judge Sutton is evidently a gentleman.  It is the greatest kindness he could have done Judge Daughtrey, to let her sloppy, fallacious, pounding-on-her-desk-with-fury opinion speak for itself, and refute itself.  Any notice of it on his part would have been an unseemly piling on.



Will the Supreme Court Hear the Same-Sex Marriage Cases This Term?


Josh Blackman has some interesting analysis about the likelihood that the Sixth Circuit marriage cases will end up at the Supreme Court this term.  I agree that the cases are on the bubble in terms of whether they would get decided this term or the next. I’ll note, however, that even his updated assumptions about the timing of filing fall far short of what we saw in the previous marriage cases, whose petitions for cert were considered in September.  

Not only were the collection of earlier marriage cases unique, in that respondents were actually supporting certiorari, the times for filing were wildly accelerated. The Seventh Circuit cases produced an amazing coincidence of the petition for cert and response filed the same day — and both only five days after the decision came down. (The Supreme Court Rules, as Josh points out, allow petitioners 90 days to file and then give respondents 30 more for their brief in opposition.) Additionally, my recollection of the practice of the clerk’s office is that it rarely waited for a reply brief before circulating a petition for consideration.  

I’m not sure what the parties — particularly the respondents — are thinking about whether it would be better strategically to be heard this term or the next, but I think we ought to consider the possibility that respondents end up supporting cert.  

Why would a state that won below ask for review? Especially given the split that has now arisen, I think court-watchers would agree that this issue has about a 99 percent chance of being decided by the Supreme Court eventually. If it’s going to get there eventually, wouldn’t you want to be the party that got to argue before the Court and eventually have your name on a landmark case? If respondents think a quicker hearing gives them a better chance of victory they might file quickly; if not, they might run out the clock and take their chances next term.


Raisin Administrative Committee


Yes, that’s right, we’re from the Raisin Administrative Committee and we’re here to take half of your raisins. George Leef explains why the Supreme Court should grant review in this case, but, really, isn’t it obvious? If the government can take your raisins, then it can take your chocolate chips.

Thoughts on the Alabama Redistricting Case


On Wednesday this week the Alabama redistricting case will be argued to the Supreme Court. The political and legal issues involved in redistricting can be complicated, but the role for race is simple: It should not be considered.

In whatever opinion it writes in this case, the Court should make clear that Section 2 and Section 5 of the Voting Rights Act — and the Court’s own past jurisprudence — should not be interpreted in a way that encourages race-based decisionmaking. Some Republicans may want the VRA to require racial gerrymandering of one sort, and some Democrats may want it to require racial gerrymandering of another sort, but the Court should make clear that, no, the VRA should not be interpreted to require racial gerrymandering of any sort.

As a matter of both constitutional and statutory law, the government should not consider race when it is drawing voting lines. It may not be irrational to use race as a proxy for commonality of interests on some issues, or voting behavior, but the Constitution sets a higher standard than that when the government uses racial classifications. There is no compelling reason for considering race, especially when weighed against the inherent costs of government race-based decisionmaking. And any interest the government has can be served by looking beyond race — that is, by not using race as a proxy — and looking to the underlying reason for individuals’ backgrounds and perspectives. The use of race will never be narrowly tailored. 

The costs of condoning race-based redistricting, by either party, are very high. It encourages racial essentialism, racial appeals, racial approaches to policymaking, and identity politics generally. Conversely, it discourages interracial coalition building and broader, nonracial appeals. It becomes more and more untenable as America becomes more and more multiracial and multiethnic. Instead of Queens, Brooklyn, the Bronx, Manhattan, and Staten Island, are we to draw the black borough, the white borough, the Asian borough, the Latin borough, and the Arab American/American Indian borough? Conversely, if normally a geographic entity with strong commonality of interests would not be divided, why should it be permissible to divide it because it happens to be racially homogeneous?

When redistricting officials are deciding when to zig and when to zag, that decision should not hinge on the skin color of the person who lives in the house.

The Court must bear in mind, too, that if gerrymandering is permitted to benefit this racial group, it must also be permitted to benefit that racial group – nothing else will work as a constitutional matter, and nothing else will work in a country where any group will be a minority somewhere. If it is permissible to gerrymander to ensure a particular outcome for blacks, then it must be permitted for whites; if it is permitted for Latinos, it must be permitted for Asians.  If we recognize commonality of interests for black people and are willing to accept and even encourage appeals to them as black people, then we must accept such appeals to Latinos and Asians – and whites.

— Roger Clegg is president and general counsel of the Center for Equal Opportunity, and Meriem L. Hubbard is a principal attorney with Pacific Legal Foundation; CEO has joined an amicus brief filed by PLF in this case.


This Day in Liberal Judicial Activism—November 10


1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.  

What’s Being Argued at the Supreme Court This Week


Tuesday is Veteran’s Day, but anticipation of Baskin-Robbins camouflage ice cream hasn’t stopped the Supreme Court from scheduling interesting arguments for this week. On Monday the Court will hear two cases primarily of interest to the business community before turning to more controversial issues.

First up on Monday is T-Mobile South, LLC v. City of Roswell, which is about whether a local government that denies an application for a personal wireless service facility can do so with a written rejection letter that gives no reasons for the denial. No, this case has nothing to do with aliens or UFOs: Respondent City of Roswell is in Georgia, not New Mexico. After that, the Court will hear M&G Polymers USA, LLC v. Tackett, concerning the standard for how courts construe collective bargaining contracts in Labor Management Relations Act cases.

On Wednesday, the Court will first hear two cases about Alabama’s 2010 legislative redistricting. The Court granted certiorari on questions about whether Alabama’s redistricting plan unconstitutionally classified black voters by race by creating districts in which black voters constituted supermajorities.

Finally, the Court will hear argument in Comptroller of the Treasury of Maryland v. Wynne, a case about whether the Constitution requires states to recognize income earned in other states for tax purposes.  The taxpayer in the case is arguing that the Commerce Clause forbids Maryland’s tax scheme, which double-taxes income earned in other states, because it penalizes small businesses and business owners who do business across state lines.

Stay tuned for highlights later this week.

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.”

Senator Mike Lee’s Call for Transparency


In a fine essay on the Federalist yesterday, Senator Mike Lee offers “five steps to restore trust, transparency, and empowerment.” Among other things:

Republican leaders should embrace a more open-source strategy development model that includes everyone on the front end to avoid confusion, suspicion, and division on the back end. The last four years have repeatedly shown the folly of excluding anti-establishment conservatives from strategy formation—bills pulled from the floor, intra-Conference chaos, and back-biting in the press.

Consistent with this call for transparency, I hope very much that the Senate staffers waging their badly misguided stealth campaign to impose the judicial filibuster on the next Republican president will promptly present their arguments openly in writing.

King v. Burwell


A quick refresher (before I rush out of town), drawing from earlier posts of mine:

The issue in this case—on which the Supreme Court has just granted review of a ruling in favor of the Obama administration—is whether the provision of Obamacare that authorizes tax credits for insurance purchased on an exchange “established by the State under section 1311” doesn’t authorize tax credits for insurance purchased on an exchange established by the federal government

Those who maintain that the text can’t be read to mean what it says argue that such a reading would produce absurd results. But leading Obamacare architect (and MIT economist) Jonathan Gruber embraced this exact reading and explained why it was sensible. Specifically, in a January 2012 presentation, Gruber said:

[S]o these health-insurance Exchanges … will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it

Cato’s Michael Cannon, who (with Jonathan Adler) has spearheaded the challenges, provided a video of Gruber’s remarks here. And, as Gruber tried to run away from his comments, John Sexton and Peter Suderman highlighted similar comments by Gruber on another occasion.

Contrary to the silly claims on the Left, the issue in this case does not involve a typo. (Congress spelled “State” correctly.) It instead involves whether rampant purposivism can render clear text irrelevant, even when that text is consistent with a plausible account of Congress’s purposes.

King v. Burwell headed to Supreme Court


According to various press accounts and SCOTUSblog, the Supreme Court has granted certiorari in King v. Burwell, the Fourth Circuit case about whether Obamacare subsidies can go to insurance plans that were purchased on an exchange that was not “established by the State.” The order isn’t up on the Supreme Court’s website yet, but I will update once it is.

UPDATED 1:17 PM: The order list can be found here

Judicial Versus Legislative Filibusters


As I explained in “Don’t Bring Back the Judicial Filibuster,” the argument that reinstating the judicial filibuster would somehow help to preserve the legislative filibuster makes no sense and “flies in the face of actual Senate traditions”:

The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. Filibusters over legislation date back to the 1830s. By contrast, nominations (as this law-review article co-authored by parliamentary expert Martin B. Gold puts it) were “swept into” a reform of the filibuster only in 1949 and “only by happenstance.” And, as discussed in the preceding paragraph, even after this nominal inclusion of nominations in the filibuster rule in 1949, Senate practice continued to regard the partisan filibuster of judicial nominees as illegitimate.

It is true, to be sure, that the same means that Senate Democrats used in November 2013 to abolish the filibuster for lower-court nominees is available to abolish the legislative filibuster. But there has long been Senate precedent for that means (see, e.g., Gold article at pp. 260–269). The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread (if increasingly fragile) consensus that it is valuable.

Insofar as there is any practical link between abolition of the judicial filibuster and abolition of the legislative filibuster, it is the opposite of what the proponents of reinstating the judicial filibuster imagine. Appeasement doesn’t work. If Senate Democrats discover that, far from exacting any price for abolishing the judicial filibuster, Senate Republicans will simply reimpose the filibuster to the detriment of Republican presidents, they will have all the more incentive to abolish the legislative filibuster when the short-term benefits of doing so are high.

I’ll just add one further thought: Over the next two years, Senate Democrats will be the most ardent defenders of the legislative filibuster and will insist on how it is fundamentally different from the judicial filibuster. Ironically, it’s the proponents of reinstating the judicial filibuster who present a far greater long-term threat to the legislative filibuster, as they wrongly maintain that some abstract principle, completely disconnected from Senate practice and history, requires that the legislative filibuster and the judicial filibuster stand or fall together. 


Senator Sessions Against Unilateral Disarmament


After Senate Democrats resorted to their unprecedented campaign of partisan judicial filibusters against President George W. Bush’s judicial nominees, Senate Republicans soundly recognized that the best way to fight the judicial filibuster was to use it (even if in many fewer instances) against President Obama’s nominees. As Senator Jeff Sessions nicely put it in 2009:

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate’s official rules. So far, no takers.

Now that the Republican strategy to defeat the judicial filibuster has succeeded, it’s beyond amazing (as I spelled out in this NRO essay on Wednesday) that some Republican Senate staffers would want to re-impose it—until Senate Democrats regain control of the Senate. The result would be exactly what Senator Sessions objected to: “a system where [when Republicans control the Senate] 60 votes are needed to confirm judges nominated by Republicans, but [when Democrats control the Senate] only 51* are required to confirm judges nominated by Democrats.”

* Given the tiebreaking role of the Vice President, nominees of a Democratic president in a Democratic-controlled Senate would actually need only 50 votes from senators to be confirmed.

What the Elections Mean for Obama’s Judicial Nominations


In September, I offered a preview in the Weekly Standard of what the November elections would mean for President Obama’s judicial nominations. Now that Republicans have won control of the Senate, the Weekly Standard’s Terry Eastland provides a more detailed (but very compatible) assessment

Some Noteworthy Pro-SSM Commentary on Sixth Circuit Ruling


I’m not going to try to cover the flood of commentary on yesterday’s Sixth Circuit ruling in favor of state marriage laws, but I would like to highlight two pieces I’ve run across from pro-SSM supporters.

On the Volokh Conspiracy, law professor Dale Carpenter writes:

[T]he Sixth Circuit decision ensures the Justices will have before them at least one well-written and reasoned opinion against constitutionalizing the issue of same-sex marriage. After dutifully arguing for four pages that he was bound by the ancient one-line decision from the Supreme Court in Baker v. Nelson, Judge Sutton nevertheless used the next 25 pages of his opinion to address the merits. He was right to do so. And he was right to focus on the many post-1972 changes in doctrine that might affect the outcome.

In an essay for Bloomberg, law professor Noah Feldman observes that Judge Sutton’s opinion

is grounded in a theory of judicial restraint — and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. [Emphasis added.]

Feldman goes on, curiously, to argue that the general rule that “appellate courts should follow the Supreme Court when its doctrine is clear” somehow doesn’t apply when “the country and the Supreme Court [are] in the midst of an epochal change in our thinking about a crucial moral question such as equality.” I don’t think that’s a defensible or coherent exception, but I do think it captures what underlies the lawlessness of lots of lower-court judges in marriage cases.

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.

Sixth Circuit Rules in Favor of State Marriage Laws--Updated


By a 2-1 vote, a Sixth Circuit panel has ruled that the marriage laws of Michigan, Ohio, Kentucky, and Tennessee do not violate the federal Constitution. Judge Jeffrey Sutton, joined by Judge Deborah Cook, wrote the majority opinion. Judge Martha Daughtrey dissented.

I’ll note that Sutton’s majority opinion contains the elegant, readable prose and careful analysis that is characteristic of his work. (Stated somewhat differently, the answer to the question why Sutton took longer than Seventh Circuit judge Richard Posner—see my Parts 123, and 4 posts—to issue an opinion is that Sutton is a judicial craftsman.)

Here’s a summary:

1. The Supreme Court’s summary ruling in Baker v. Nelson (1972) binds federal courts of appeals to hold that state laws that define marriage as the union of a man and a woman are constitutional. The Court’s ruling last year in Windsor v. United States doesn’t overrule Baker, nor does it clash with it. Neither of the two preconditions for ignoring Supreme Court precedent applies. Nor do the Court’s recent denials of certiorari in other marriage cases have any bearing. (Slip op. at 13-17.)

2. Under the original meaning of the Fourteenth Amendment, state marriage laws are clearly constitutional. (17-18.)

3. State marriage laws easily survive rational-basis review. It is rational to define marriage as a male-female union because (a) governmental recognition of marriage operates to regulate the intended and unintended effects of male-female intercourse (19-21), and (b) it’s reasonable for the people of a state to assess how the benefits and burdens of redefining marriage are playing out in other states before they decide whether to take that step (21-22). “Any other approach would create line-drawing problems of its own.” (See 22-23.)

4. State marriage laws do not reflect animus. (24-28.)

5. There is no “fundamental right” to SSM. (28-31.)

6. Under Sixth Circuit precedent, rational-basis review applies to sexual-orientation classifications. Windsor says nothing to the contrary. (31-35.)

7. Under an “evolving meaning” approach to the Constitution, the relevant measure is society’s values, not judges’ values. “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.” (35-38.)

This ruling is presumably headed to the Supreme Court, where I’m not at all optimistic about what will happen. But it’s good to see a deeply intelligent and judicious majority opinion from a federal appellate panel.


Another Conservative Leader Weighs In Against Reviving the Judicial Filibuster


Conservative leaders who signed a recent memorandum urging the Senate not to revive the judicial filibuster next year can now count famed conservative radio host Mark Levin as an ally. If you’d like to hear him explain the reasons why, you can listen to the 11-minute segment from November 5, 2014, starting at approximately 82:38 into the show. Here’s how he introduces the issue:

There’s an issue that’s coming to the floor of the Senate. The nuclear option, as we call it (there are a number of [names]), that Harry Reid triggered, empowered 51 senators to approve judges and certain executive branch appointees. 51 senators.

Mitch McConnell wants to immediately disarm and put the filibuster rule back in place so that you have to get 60 votes to approve a judge.

This has been in place forever, and Harry Reid changed it, and there’s a big debate, particularly among conservatives on Capitol Hill in the Senate now about whether they should do it or not.

Later on:

Why is this relevant? Because it’s about to come up.

And it appears that Mitch McConnell and some conservative senators are persuaded to put that filibuster back in place for judges, even though they’re going to have a majority of Republicans. And they shouldn’t. That should be enough to block a radical Obama nominee. 

Listen to the whole thing here.

Against the Revival of Nomination Filibusters


Just a quick comment to note that I wholly agree with Ed Whelan that it would be a mistake for Republicans to revive the possibility of filibusters for judicial nominations.  The de facto requirement for sixty votes to confirm a judge created by Senate Democrats was an aberration without historical precedent.  Until Senate Democrats sought to obstruct some of President George W. Bush’s nominees, no judicial nominee who enjoyed majority support had ever been blocked by a filibuster. (This is even true for the Supreme Court, as the nomination of Justice Abe Fortas to Chief Justice never enjoyed majority support.)  Thus restoring the filibuster for judicial nominations does not restore some honored or age-old tradition. Rather it would resuscitate an obstructionist measure invented for partisan advantage.

I suspect Ed is correct that, as a practical matter, any revival of the filibuster for judicial nominations would be short-lived, and would not be allowed by Senate Democrats should filibusters threaten to block a Democratic President’s judicial nominees. But even were that not the case, I would still oppose it.  All judicial nominees should receive prompt up-or-down votes. This is what many Republicans argued (correctly) when Senate Democrats blocked slow-walked George H.W. Bush’s nominees and sought to block George W. Bush’s nominees.  It was true then and it remains true today.  Further, increasing the number of votes required for judicial confirmation creates pressure to nominate stealth candidates and is likely to make it particularly difficult to confirm the brightest conservative legal minds to the bench.  In today’s political environment, judges like Frank Easterbrook, Bill Pryor, or Brett Kavanaugh would be particularly difficult to confirm.  What interest does that serve?

The filibuster of judicial nominations was a terrible idea when Senate Democrats started it, and it remains a terrible idea today.

More on “Disparate Impact”


I posted earlier this week on a good federal court decision against the use of the “disparate impact” approach to civil-rights enforcement. Now George Leef weighs in against the approach, too, here.


Subscribe to National Review