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This Day in Liberal Judicial Activism—December 5


1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona. Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception (“(b)(1)”) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them. In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms. Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Alex Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Andrew Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices reject Reinhardt’s position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

Becket Fund Now Accepting Resumes


If you’ve been following religious-liberty issues in recent years, you’re familiar with The Becket Fund, a religious-liberty law firm that defends people of all faiths. Here’s an announcement from their website welcoming applications for a full-time Legal Counsel position:

The Becket Fund for Religious Liberty seeks an attorney to join its team of legal counsel advocating for religious liberty for people of all faiths. The ideal candidate will have the following qualifications: (a) one to three years of active litigation experience, preferably in federal court; (b) excellent research, writing, and oral advocacy skills; and (c) a federal or state appellate clerkship.

Applicants should send a cover letter, resume, and two writing samples to Elizabeth Dobak at [email protected].


Senate Republicans “Unlikely” to Reinstate Judicial Filibuster


That welcome news comes from this Politico article. Some highlights:

[A] number of senior GOP senators like Orrin Hatch of Utah and even junior Republicans like Ted Cruz of Texas are signaling privately and publicly that they want to stay at the 50-vote threshold set by Reid’s Democratic Senate majority.

Kentucky Sen. Mitch McConnell, the incoming majority leader who has not publicly taken a position on the matter, has been making the argument privately that it’s long been historical precedent that a simple majority of senators — not 60 — have been able to confirm presidential nominees, according to several senators.

Others have been more forceful, saying it makes little sense to engage in a messy fight over the filibuster rules when Democrats may lower the threshold again should they take the majority in 2016 or beyond. Now that the Democrats have changed the rules, future Republican presidents, too, should benefit from a weaker filibuster, several GOP senators said Wednesday.

The change that Democrats made was “long-term and permanent,” said Sen. Roy Blunt (R-Mo.), a member of his party’s leadership.

“I think it’s well within the traditions of the Senate for a majority to decide nominations and a supermajority to decide legislation,” Blunt said….

[John] Cornyn said he had not taken a position yet but added that Republicans “have to recognize that if Democrats got the majority again, no matter what we did, they would probably take it back to 51. They’ve really shown their colors on that.”

Cruz, the Texas firebrand and potential presidential candidate, has privately voiced a similar view, arguing that Democrats would simply change the filibuster rules later if Republicans acted now, sources said.

A number of senators are reluctant to engage in a messy fight right off the bat in a new majority. Kansas Sen. Pat Roberts, the ranking member of the Rules and Administration Committee, said the new GOP-led Senate should first focus on bipartisan votes before acting on the filibuster.

The article also nicely explains how, even if Republican sentiment were otherwise, there’s no good procedural route to reimpose the filibuster.


According to the article, the idea of reinstating the judicial filibuster will be discussed by Republican senators at a meeting next Tuesday. Let’s hope this very bad idea dies a very quick death.

Both Sides of the Filibuster-Reinstatement Debate


I gather that the terrible idea of trying to reinstate the filibuster for lower-court and executive-branch nominees continues to distract Republican senators from far more important things. So I figured that I’d compile the public arguments that have been made on both sides of that issue:

1. On the side against filibuster-reinstatement, pardon me for leading with my own morning-after-Election Day essay on NRO, “Don’t Bring Back the Judicial Filibuster.” I’ve supplemented that essay with numerous Bench Memos posts, including:

Senator Sessions Against Unilateral Disarmament

Judicial Versus Legislative Filibusters

Lindsey Graham’s Myopia

More Bad Arguments for Filibuster Reinstatement

And I’ve still received no answer to this elementary question that I’ve posed to reinstatement proponents:

What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

Among the other resources against filibuster-reinstatement that I’d recommend:

House editorial in the Wall Street Journal, “Republicans and the Filibuster: The Senate GOP shouldn’t create a double standard for nominees

House editorial on National Review Online, “No to the Judicial Filibuster

Wall Street Journal op-ed by Senator Orrin Hatch and former White House counsel Boyden Gray, “After Harry Reid, the GOP Shouldn’t Unilaterally Disarm

Memorandum from more than two dozen conservative leaders opposing reinstatement of the filibuster

Quin Hillyer’s NRO essay, “Leave the Nuked Filibuster Alone

2. And, now, for the essays in favor of reinstating the filibuster, I’m pleased to highlight ….

Oops, where are they? Oh, how strange! So far as I’m aware, none of the actual proponents* of  reinstating the filibuster has even tried to present a public argument in writing—much less a comprehensive argument that explains the reasons for the proposal, carefully assesses the foreseeable consequences, and answers the arguments against. Why might that be, I wonder? Perhaps because proponents recognize that the less that Republican senators understand the proposal, the more likely they are to support it (perhaps mis-imagining that it’s some way to get back at Harry Reid).

* On Power Line, Paul Mirengoff urged that Senate Republicans be “opportunistic” by re-imposing the filibuster for President Obama’s last two years and then abolishing it again in 2017 if a Republican is president. That approach has zero support among the reinstatement proponents in the Senate—and, indeed, flies headlong against the arguments they are making.

Scalia Theater


In today’s Wall Street Journal, Jess Bravin writes about new works of art (loosely defined)—“a stage play, an opera, and a puppet show”—that feature fictional Justice Scalias. Bravin kindly provided me excerpts of each to review and includes my negative assessment:

If you want to understand Scalia, this is a bad place to start. If you want a good night on the town, surely you can find better options.

Reviewing my notes, I see that I found the stage play, “The Originalist,” and the puppet show, “The Complete History of Comedy (abridged),” to be inane and incompetent in their treatment of legal issues. The opera, Scalia/Ginsburg, struck me as more intelligent. (Again, I reviewed only excerpts of each.)


Embarrassing, Indeed


In a New Republic piece titled “The Latest Challenge to Obamacare Should Embarrass Conservative Judges,” Brian Beutler makes an argument that ought to embarrass him. His central claim is that a statutory provision is ambiguous—and thus invites so-called Chevron deference to an agency’s reasonable interpretation—if “judges and scholars” who aren’t “daft or corrupted or engaging in some kind of conspiracy” have come up with a meaning that differs from the one that challengers to the agency’s interpretation are advancing. He cites no authority for his claim.

But a judge will find a statutory provision to be ambiguous only if he concludes that the sound application of the correct tools of statutory interpretation yields, at the end of the analysis, more than one reasonable meaning of the provision. (The Chevron ruling itself states that a judge must “employ[] traditional tools of statutory construction.”) The fact that other judges have come up with other meanings might suggest that the provision is ambiguous, but it might instead mean that those judges, in the eyes of the judge now deciding the issue, didn’t soundly apply the right analytical tools. (That wouldn’t mean that the other judges were “daft”; among other things, interpretive principles are contested, and not all issues are simple.) In any event, a judge can’t farm out the ambiguity inquiry to other judges (much less to “scholars”) by holding that the fact that other judges have, by whatever paths, come up with other meanings somehow establishes or indicates that a provision is ambiguous.

This Day in Liberal Judicial Activism—December 3


2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“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.”

Louisiana Supports Cert Before Judgment in Marriage Case


The state of Louisiana, having successfully defended its marriage laws in federal district court (in Robicheaux v. Caldwell), is supporting plaintiffs’ request that the Supreme Court grant review of the district-court ruling before the Fifth Circuit rules on their appeal. Although that step is highly unusual, it makes sense under the circumstances. As Louisiana explains:

Petitioners are right that the extraordinary mechanism of cert-before-judgment is appropriate here…. Louisiana’s case squarely implicates a spiraling national controversy that has already nullified the marriage laws of over twenty States and spawned a four-to-one circuit split. Multiple petitions are pending before this Court, presenting the same issue in various forms. The Robicheaux decision was the first federal ruling since Windsor to uphold a State’s marriage laws; only the Sixth Circuit’s DeBoer decision has joined it. Robicheaux and DeBoer are the sole counterweights* to a flood of decisions condemning the view that marriage is limited to male-female couples—a view that “until recent years … had been thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Windsor….

[R]eviewing the Louisiana case along with one or more petitions from the Sixth Circuit will allow the Court to consider a wider range of marriage laws, defended by a wider array of legal arguments.

* As Louisiana notes in the body of its pleading, there is also the recent ruling by a federal district judge in Puerto Rico rejecting a challenge to Puerto Rico’s marriage laws.

Chief Judge Wood Responds


In addition to Judge Easterbrook, Seventh Circuit chief judge Diane Wood has also kindly sent responses to the questions I posed yesterday about Seventh Circuit motions panels. I copy below my questions and, in bold, her answers:

1. How are Seventh Circuit motions panels composed? Do judges take turns as the lead motions judge, with additional judges randomly assigned to join them for matters that call for decision by two or three judges? Or do the chief judge or other senior judges have some special role?

(Section 1(b) of the Seventh Circuit’s internal operating procedures says, “The responsibility to handle motions shall be rotated among the judges.” That proposition apparently applies to motions handled by single judges. Whether it also applies to motions handled by two judges or three judges is unclear. Section 1 also spells out which motions should be handled by more than one judge.)

Chief Judge Wood: Motions panels are set for each six-month period. A motions judge is set for each week, and Judge 2 and Judge 3 for the panel are also specified. The motions judge rules on all one-judge motions, and the panel handles three-judge motions. For the next week, Judge 2 moves up to the Motions judge slot, Judge 3 is in the next position, and a new Judge 4 fills out the panel. If one judge is disqualified, then the motions staff contacts the next judge in the rotation.

2. Under Seventh Circuit policy or practice, who on a motions panel decides whether to recommend that a particular matter be assigned to the motions panel for a decision on the merits? Is that effectively the decision of the senior judge on the panel? Or does it require a majority or unanimous vote of the panel members?

(Section 6(d) of the Seventh Circuit’s internal operating procedures provides: “When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel.”)

Chief Judge Wood: The panel decides as a whole whether to keep the case.

3. Under Seventh Circuit policy or practice, does the chief judge ever disapprove a motions panel’s recommendation that a matter be assigned to that panel for a decision on the merits?

Chief Judge Wood: No, as far as I can recall.

4. Are there any recognized standards under Seventh Circuit policy or practice that govern a motions panel’s decision whether to recommend that a matter be assigned to that panel for a decision on the merits?

Chief Judge Wood: The judges will consider such factors as the amount of time the panel members have already invested in the matter, the similarity of the issues involved in the motion with the issue involved in the merits decision, and the need to schedule a prompt hearing. 

Judge Easterbrook Responds


Seventh Circuit judge Frank Easterbrook, who served as chief judge of the Seventh Circuit from 2006 to 2013, has kindly sent me responses to the questions I posed yesterday about Seventh Circuit motions panels. Here are his responses:

1. The Seventh Circuit rotates motions duty on a schedule fixed every six months. The Senior Staff Attorney asks judges when they are available and uses that information to compose panels that last one week. For each week there is an assigned motions judge (who handles all one-judge motions that arrive during the week and makes recommendations to the panel about three-judge motions) and two other members. I attach the schedule for the second half of 2013, so you can see how this works. (I can’t give you current or future schedules, because the Seventh Circuit does not announce future panel composition to the public.) Judges usually serve on the motions panel for three consecutive weeks, though only one week as motions judge; each week, one new judge joins the panel and one drops off.

All active judges serve an equal number of weeks on the panel (and as motions judge) during the course of a year. Senior judges participate, or not, at their option. They tell the Senior Staff Attorney what portion of an active judge’s schedule they are willing to undertake.

Motions filed during a panel’s week stay with that panel, even if a request for a response means that the case is not ready for submission until the panel has changed. This ensures that neither counsel nor any judge can manipulate the assignment system. Effectively locking a case to a panel by the date the motion is filed means that the process produces a random distribution of assignments over the year. (Counsel don’t know who is on that week’s panel or who will be on the next week’s, so they can’t time their motions to produce assignment to as particular panel.)

2. When a motion requires the panel to consider the merits to some degree—for example, when the movant requests permission to take an interlocutory review of a class-certification order, or permission to appeal under 28 U.S.C. §1292(b)—the motions panel decides whether it wants to keep the case for decision on the merits too. The principal consideration is whether the panel has gotten deeply enough into the merits that it would be sensible to continue, rather than require three other judges to learn the case from scratch. This isn’t written in any rule or operating procedure, but it has been the court’s practice since I was appointed in 1985.

Normally the the motions judge (who will be the most senior judge on the panel only about a third of the time) makes a recommendation about this to the whole panel, but any member of the panel is free to make a recommendation independently (or to disagree with the motions judge). The panel then decides by consensus. Some judges are more apt than others to prefer keeping a case, but the process is the same for all judges—and all have an equal chance to keep cases for decision on the merits.

3. Although the operating procedures say that the panel will refer the matter to the Chief Judge for assignment, this rarely happens—and no one wants it to be done routinely. As a practical matter, the issue is referred to the Chief Judge only when the panel is internally divided about whether to retain the case for decision on the merits. During my seven years as Chief Judge, that happened only once. I assigned that case to the motions panel for decision on the merits.

(I’ve added in the hyperlink to the schedule that Judge Easterbrook attached. ​Please note that Judge Easterbrooks’s response to my question 2 also answers my question 4.)

Chief Judge/Motions-Panel Shenanigans


For those inclined to repose blind trust in the procedural regularity of the behind-the-scenes operations of the federal courts, I’ll highlight the extraordinary “Procedural Appendix” from Sixth Circuit judge Danny Boggs’s 2002 dissent in the Michigan law school racial-preferences case, Grutter v. Bollinger. I’ll pass over here the facts that Judge Boggs cites that invite suspicion that timing of the en banc process was delayed to engineer a liberal majority. I’ll instead focus on a matter that relates to the concerns that I raised yesterday regarding whether the Seventh Circuit motions panels that are aggressively seizing merits cases are randomly composed:

Judge Boggs points out that Chief Judge Boyce Martin (who, as it happens, resigned in disgrace last year in the face of possible criminal prosecution for “questionable travel reimbursement requests) improperly added himself to a motions panel that was handling interlocutory motions in Grutter. The panel on a previous interlocutory appeal in the case had included a visiting district judge. Sixth Circuit rules provided that, if that judge was to be replaced, a “draw” for his replacement “shall be made from the judges of this Court scheduled to sit at that time.” But instead of the draw, Chief Judge Martin put himself on the motions panel.

Here’s the amazing way in which liberal Sixth Circuit judge Karen Nelson Moore purported to defend Martin’s procedural violation:

Although that rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges. Thus, it was not unusual for him to place himself on the panel in July 2000. To my knowledge, no one has objected before to Chief Judge Martin’s filling of vacancies in other cases, even though his practice of doing so is a matter of common knowledge among the judges of this court. [Emphasis added.]

In other words: It’s common for Chief Judge Martin to violate the rules by substituting himself on matters (only “in order to avoid inconveniencing other circuit judges,” of course—what a considerate guy!), and everyone knows it.

Boggs replies:

[S]uch a practice [on Martin’s part], to the extent it exists, was unknown to the other members of the court, who had every reason to believe that the panel had been regularly constituted.

I absolutely deny that this judge has had any “knowledge” of, or that the Chief Judge has announced or admitted to, any such practice of inserting himself onto panels without a random draw. [Emphasis in original.]

(Boggs also calls into question whether Sixth Circuit rules allowed the original panel that decided the previous appeal to have later interlocutory motions redirected to it.) 

This Day in Liberal Judicial Activism—December 2


2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

Seventh Circuit Motions Panels Seizing Merits Cases?


I’ve learned of concerns that some Seventh Circuit judges serving on motions panels have been aggressively seizing cases to decide them on the merits. For an extreme example of the phenomenon, see this Reuters account of Motorola Mobility LLC v. AU Optronics Corp., in which a motions panel headed by—surprise!—Judge Richard Posner, “without the benefit of briefing on the merits [or] oral argument, … issued a ruling that simultaneously granted the appeal and decided it, dismissing Motorola’s claims.

So I have some questions for any Seventh Circuit judges or law clerks, present or former, who care to respond to me (at [email protected]), in confidence or otherwise:

1. How are Seventh Circuit motions panels composed? Do judges take turns as the lead motions judge, with additional judges randomly assigned to join them for matters that call for decision by two or three judges? Or do the chief judge or other senior judges have some special role?

(Section 1(b) of the Seventh Circuit’s internal operating procedures says, “The responsibility to handle motions shall be rotated among the judges.” That proposition apparently applies to motions handled by single judges. Whether it also applies to motions handled by two judges or three judges is unclear. Section 1 also spells out which motions should be handled by more than one judge.)

2. Under Seventh Circuit policy or practice, who on a motions panel decides whether to recommend that a particular matter be assigned to the motions panel for a decision on the merits? Is that effectively the decision of the senior judge on the panel? Or does it require a majority or unanimous vote of the panel members?

(Section 6(d) of the Seventh Circuit’s internal operating procedures provides: “When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel.”)

3. Under Seventh Circuit policy or practice, does the chief judge ever disapprove a motions panel’s recommendation that a matter be assigned to that panel for a decision on the merits?

4. Are there any recognized standards under Seventh Circuit policy or practice that govern a motions panel’s decision whether to recommend that a matter be assigned to that panel for a decision on the merits? 

Re: In Defense of Justice Breyer


A follow-up to this post: Via Twitter, FiveThirtyEight’s Harry Enten has clarified for me that, rather than making his own assertion about Justice Breyer’s professional qualifications, he was using the so-called “Segal-Cover score” for Breyer. (That appeared to be the case from a chart in his post, but I wasn’t able to locate a source for the Segal-Cover score. Enten has kindly referred me to this Wikipedia page.)

To continue my “Garbage In, Garbage Out” critique of modern political science, I note that the Segal-Cover score purports to measure “perceived” (rather than actual) qualifications and that it evidently does so through the curious method (as Wikipedia summarizes it) of “analyzing pre-confirmation newspaper editorials regarding the nominations from The New York Times, Washington Post, Chicago Tribune, Los Angeles Times, St. Louis Post-Dispatch, and The Wall Street Journal.

Thus, when Enten said that Breyer had “middling qualifications,” he meant only that some set of coders reading op-eds from these newspapers gave Breyer a cumulative rating of .545 on his “perceived” qualifications.

Insofar as the Segal-Cover score is used to help predict a nominee’s confirmability, it may well be the case that perceived qualifications matter more than actual ones. But I’m doubtful that there’s often much of a gap between the two, and I’m also doubtful that coding newspaper editorials—and trying to untangle their ideological views from their assertions about a nominee’s professional qualifications—is a very good way to measure how the Senate, or the broader public, perceives the nominee’s qualifications. 

In Defense of Justice Breyer


I’m no great admirer of Justice Stephen Breyer’s unprincipled pragmatism, but I’m astonished to see that FiveThirtyEight’s Harry Enten asserts that Breyer’s professional qualifications at the time of his nomination to the Supreme Court in 1994 were “average” or “middling”—and that Ruth Bader Ginsburg, by contrast, was “perfectly qualified.”  

Let’s consider Breyer’s qualifications (which I draw from his Wikipedia entry):

Fourteen years as a First Circuit judge

Longtime law professor at Harvard

Leading expert in administrative law

Member of U.S. Sentencing Commission

Chief counsel to Senate Judiciary Committee

Supreme Court law clerk (for Arthur Goldberg)

Undergraduate degree from Stanford; Marshall Scholar; law degree from Harvard

It is no disparagement of Justice Ginsburg to note that it is difficult to see on what basis anyone would rank her qualifications at the time of her nomination as “perfect” and Breyer’s as only “middling.” (Yes, she had much more litigation experience, but Breyer had experience in the executive and legislative branches that she didn’t have, and his other credentials matched or exceeded hers.)

Enten’s bizarre characterization, I’ll note, comes in the course of a blog post in which he tries to model factors that predict the likelihood that a Supreme Court nominee will get confirmed. I’m very skeptical that this sort of modeling has any value. But even those more inclined to credit this approach ought to wonder what sort of junk data it’s built on if Breyer’s stellar qualifications are characterized as “middling.” 

(I’m of course divorcing qualifications from judicial philosophy throughout this post.)

This Day in Liberal Judicial Activism—November 30


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

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

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

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

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

This Day in Liberal Judicial Activism—November 29


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

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

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

This Day in Liberal Judicial Activism—November 27


2014—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

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

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

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

Obama’s Immigration Abuses


There have been a lot of excellent legal critiques of President Obama’s recently announced executive actions on immigration and of the Office of Legal Counsel opinion that the White House solicited. I will heartily recommend for your reading this NRO essay by Shannen Coffin and Michael Edney and this Wall Street Journal op-ed by David Rivkin and Elizabeth Price Foley. On the important broader distinction between legalistic constitutionalism and political constitutionalism, I’d also encourage you to read my Ethics and Public Policy Center colleague Yuval Levin’s take from the Corner.

But, as usual with this Administration, things are even worse than they first appear. According to this article in today’s Washington Post, many of the millions of illegal immigrants who would be protected from deportation under Obama’s actions would be eligible to receive Social Security, Medicare, and other federal benefits under the theory that they are “lawfully present in the United States.” But his theory would appear to contradict the reasoning of the OLC opinion, which repeatedly emphasizes that the proposed deferred-action programs would not alter the fact that the covered immigrants are unlawfully present in the United States:

[T]hese proposed deferred action programs would not ‘legalize’ any aliens who are unlawfully present in the United States.” [p. 2]

Deferred action does not confer any lawful immigration status. [p. 2]

Deferred action … expressly communicat[es] to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. [pp. 20-21 (emphasis added)]

The contradictions between Obama’s legislative-style programs (“I just took an action to change the law,” he boasted yesterday) and his imposition of them by unilateral executive fiat will continue to compound.

More on Hijinks in the Ninth Circuit Clerk’s Office


In my previous post, I offered reasons to doubt that the Ninth Circuit’s supposed longstanding practice of assigning expedited cases to the available panel with the most senior presiding judge was consistently applied. In this post, I’ll simply illustrate the extraordinary potential for abuse that inhered in that practice even if it was consistently applied.

Consider this February 2014 order expediting oral argument in the Nevada marriage case. The decision to expedite was made not by Ninth Circuit judges but by clerk’s office staff, exercising the power delegated to them under Circuit Rule 27-7. The order states, “This case will be calendared as soon as possible.”

The clerk’s office ended up calendaring the case for the week of September 8, which under the supposed practice resulted in its being assigned to the panel of Reinhardt, Gould, and Berzon. But there were lots of other calendar weeks available. So it would seem that the clerk’s office staff had its pick of panels, and, further, that it could determine beforehand that selecting the week of September 8 would yield the panel of Reinhardt, Gould, and Berzon.

A system in which clerk’s office staff can decide which cases to expedite and can select among calendar weeks in a way that affords plenty of opportunity for panel-shopping is a system rife with potential for abuse. Perhaps that potential wasn’t exercised to generate Judge Reinhardt’s highly improbable pattern of case assignments, but quite possibly it was. Having operated a system that allows for such abuse, the Ninth Circuit can hardly fault anyone for being suspicious.


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