1965— In Griswold v. Connecticut, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced. In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern. Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt (see This Day for March 22, 1972) will confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.  

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.”

Yesterday’s New York Times ran a disturbing story about a speech that Fifth Circuit Judge Edith Jones gave to the Penn Law School Federalist Society in February. Times writer Ethan Bronner reports that a “group of civil rights organizations and legal ethicists” just filed a misconduct complaint against Jones. Bronner goes on to describe all the disturbing things that the complainants say that she said. 

The story is indeed disturbing. What’s troubling about it is not, however, what Judge Jones said. What’s troubling is that she is being charged with misconduct for what she said. It is even more disturbing that the complainants are in the “civil rights” and “ethics” business.

The gravamen of the complaint is two-fold. As Bronner relates the accusation, Jones’s remarks evinced a “bias against minority groups and an inappropriate religious belief in the death penalty.” 

What are the bases for these grave charges? I should say straightaway that I have no idea what Judge Jones actually said in February, other than what the Times reports her as saying. According to the Times, what she said was not recorded, and there is no transcript of it. The recent complaint relies upon the recollections of some folks who attended the speech.

They say that Jones said something like “Death penalties serve the condemned by forcing them to face God.”  Well, of course they do — if there is indeed a God. I believe there is, and until I read this story, I thought Judge Jones had a “civil right” to believe there is, too. Most religions maintain that after death there is some sort of divine judgment. Surely Christianity maintains that it is so. 

Of course, Judge Jones (depending on what exactly she actually said) might have been drawing attention to one traditionally prominent, and still somewhat common, putative virtue of the death penalty, namely, that anyone facing certain death — be it those on death row or on the walls of the Alamo — might contemplate divine judgment. This was thought, and is still sometimes thought, to be a spiritual comfort. No doubt it can be for people sentenced to death.  Some of them are religious believers, and some of their last thoughts must be about God.  

Stephen Gillers, a leading legal ethicist at NYU, is nonetheless troubled — by Jones, not by the complaint against her. “If a judge were to say that [referring to the “face God” comment] during sentencing, that sentence would be vacated,” he said. Maybe so. But if my aunt were a man, (s)he would be my uncle. The point is that no one alleges that Edith Jones has ever said anything like that in a sentencing. In fact, she does not sentence people. She is an appellate judge, whose job includes the occasional review of another judge’s capital sentence, to see if that judge acted lawfully. Sharing her moral or religious beliefs about capital punishment — whatever they happen to be — in a lecture room has no necessary tendency to show that Edith Jones has acted, or would act, in any appellate case except according to the law. 

Gillers is steamed by the fact that Jones believes these things. He supposes that Jones might believe that sentencing a person to die might “help” that person — and “that is totally inappropriate.” Gillers does not say that this belief is false. So, by “inappropriate,” he apparently means that anyone holding such a belief is (I guess) unfit to sit as a judge in a capital case. 

Gillers is wrong. We fully expect our judges to possess moral and religious beliefs that frequently diverge, and sometimes conflict, with the law. But we expect them to abide by the law, notwithstanding their personal beliefs. We do not expect them to be moral or religious eunuchs.

When I was an assistant district attorney in Manhattan, I appeared at a couple thousand or so sentencing hearings (though never one involving the death penalty). Perhaps a hundred times, I saw judges impose sentences, with which they morally disagreed, according to the law. Often they remarked upon that fact. It never occurred to me to file ethics charges against any one of them.

Besides, Gillers makes a simple mistake of logic that vitiates his whole position. He confuses side-effect with intention, which is no small error for a law professor to make. One might well say that anyone banished to a desert isle will have a lot of time to think. One might well say that those who manned the Alamo’s walls had the opportunity to be heroes. Edith Jones might well have said that some people on death row repent. But none of these three speakers is necessarily saying that being banished or dying at the Alamo or dying in San Quentin is good, or desirable, or is something that the speaker favors or would wish to see happen.  

I observe that, if Jones were removed from office because of this disturbing complaint, she could spend more time with her husband. That would in itself be good. I nonetheless oppose removing Jones from office, because I think that the complaint is groundless. 

What did Judge Jones say that revealed “bias against minority groups”? The complaint alleges that she asserted that certain “racial groups like African-Americans and Hispanics are predisposed to crime.” Here is where the Bronner story is most disturbing of all, for no one (according to the Times piece) says that he or she actually heard Judge Jones say that.   

What did they hear (or think they heard)? One auditor’s affidavit attributes to Jones the following lament: “Sadly, some groups seem to commit more heinous crimes than others.” Well, yes, of course — as a stroll through any prison or a glance at any statistical report on violent crime would unequivocally confirm. But that has nothing to do with any “predisposition.” It is only a fact about who commits crimes. It is an undeniable fact that happens to be compatible with a benign view of those racial groups’ “predispositions.” After all, it might be that crime rates among (for example) young African-American men has to do with the lack of economic opportunity where they live — and not with any nefarious “predisposition.”

Judge Jones is also alleged to have observed that, “often,” defenses involving “mental retardation” and “systemic racism” in capital cases are “red herrings.” No doubt they are. A systematic survey of the reported cases would show that judges have heard far more such defenses than they have credited — and none of these judges is named Edith Jones!

Charles Wolfram — a leading ethicist retired now from Cornell — is nonetheless greatly concerned. “If I were a parent of a black with a borderline IQ accused in a capital case,” Wolfram opined, “would I be distressed in knowing that Judge Jones was sitting on my case? Yes, I would.” Since Wolfram’s vicarious “distress” means nothing — it too is a red herring — his money line comes next: Jones “is slanted.” She “seems to have made up her mind on these issues.”

What’s distressing here is not anything Jones is reported to have said. What’s really troubling is that Wolfram — who was not present for Jones’s lecture — could level such a serious charge against a distinguished judge on such hearsay evidence. It is distressing too that Wolfram leveled the charge on such inconclusive hearsay evidence. For Jones — or for any judge — to report that, based upon long experience, certain common claims or defenses or legal strategies or appellate arguments regularly deliver much less than promised is commonplace. By itself it indicates no lack of impartiality. Or, if you prefer to count such a report as tell-tale of a closed-mind, then judicial “impartiality” is your ultimate fantasy.

The complaint is now in the hands of Fifth Circuit Chief Judge Carl Stewart. He has the power to dismiss it, and Bronner reports that is what happens to “most” complaints against judges. I hope that the Times runs a comparable piece when Stewart does exactly that. But I fear that it will not. 

On Tuesday, when President Obama named three new nominees to the D.C. Circuit, he asserted (and then reiterated) that his nominees have waited three times longer for confirmation than President George W. Bush’s. I’m not exactly sure where he came up with that data, but he appears to be citing the number of days between a committee vote and confirmation by the full Senate. Of course most members of the press dutifully reported the statistic, notwithstanding the fact that it is pure spin. The more relevant statistic, if one is concerned about the amount of time it is taking the Senate to consider nominees, is the time between nomination and confirmation. By this measure, President Obama is actually performing better than President Bush. A Brookings Institute study found that as of December 2012, President Obama’s Circuit Court nominees had waited an average of 240 days, while President Bush’s nominees waited 283 days.

The claim that Republicans are somehow engaged in “unprecedented” behavior with respect to nominations is especially silly in light of the genuinely unprecedented behavior of Senate Democrats during President Bush’s term (not to mention how Democrats treated Judge Bork and Justice Thomas). As the Wall Street Journal elaborated yesterday:

He might have added, but somehow didn’t, that the Senate also too often failed to do that “duty” when George W. Bush was President. You could even say that Senate Democrats invented the filibuster against D.C. Circuit nominees. Who can forget the successful Joe Biden-John Kerry effort to defeat the distinguished appellate lawyer Miguel Estrada mainly because he is Hispanic and might make it to the Supreme Court someday? And how about the denial of a vote for 918 days to Peter Keisler? Both men had majority support but weren’t confirmed because Democrats set a standard of 60 votes.

President Obama joined in on this unprecedented obstruction. As a senator, he was the first U.S. president to have supported the filibuster of a Supreme Court nominee (Justice Alito), and he voted against cloture on the nomination of the following appellate judges: 

• Bill Pryor to the Eleventh Circuit:  
• Janice Rogers Brown to the D.C. Circuit: 
• Leslie Southwick to the Fifth Circuit: 

In 2005, he defended the filibuster, stating: 

I understand that Republicans are getting a lot of pressure to do this from factions outside the Chamber, but we need to rise above ‘‘the ends justify the means’’ mentality because we are here to answer to the people—all of the people, not just the ones who are wearing our particular party label.

Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, it is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.

Despite all this, the press still seems perfectly willing to carry the message that Republicans are responsible for weaponizing the judicial-confirmation process. But, as Senator Grassley pointed out:

Since President Obama was elected, the Senate has confirmed 193 lower court nominees. Only two were defeated. That’s an excellent record, especially compared with the 10 circuit nominees Democrats filibustered during the Bush years, ultimately defeating five.

With respect to the D.C. Circuit itself, President Obama would have you believe that it is in some sort of crisis. But the facts tell a completely different story. As the Wall Street Journal explained back in May:

Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits—the country’s busiest. And the court’s workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.

Ed Whelan has also pointed out that the D.C. Circuit has the equivalent of 11.25 judges, considering the contributions of senior-status judges. This is 0.25 more than the Circuit’s allocated 11 seats for full-time judges, and further evidence that the D.C. Circuit is under-worked.  

The court doesn’t need new judges. As others have noted, Obama’s three nominees are a brazen attempt to pack that court for the purpose of insulating his vast expansion of the administrative state from judicial review. To quote another Wall Street Journal editorial:

Mr. Obama didn’t explicitly state the threat portion of that ultimatum—he’s leaving that dirty work to the reliable Harry Reid. But everyone knows that’s the subtext of Tuesday’s announcement, which is a political attempt to realign the balance of power on an appeals court that has frustrated the Administration’s regulatory overreach. . . .

But the ideology is less important than Mr. Obama’s attempt to pack a court that is often considered the second most important in the country and a proving ground for future Supreme Court Justices. The D.C. Circuit is also the main judicial referee for all manner of ill-conceived regulations and other bad ideas from this executive branch. Mr. Obama is still sore, for example, that earlier this year the court ruled that his non-recess recess appointments to the National Labor Relations Board are unconstitutional. Don’t they know judges are supposed to rubber stamp liberal laws?

In a brazen push to make his state even more decisively the abortion capital of the United States, Gov. Andrew Cuomo of New York is trying to ram through the legislature, before its June 20 adjournment, a radical expansion of the abortion license in the provisions of his “Women’s Equality Act.”

As my Witherspoon Institute colleague Gabrielle Speach, and co-author and practicing physician Elissa Sanchez-Speach, write today at Public Discourse, Gov. Cuomo’s bill is an open invitation to the Kermit Gosnells of the abortion trade to move to New York and ratchet up their performance of late-term abortions on viable children.  These abortions are almost never necessary for the sake of a woman’s life or health–one might almost strike the “almost” from that statement, since it is hard to envision a “necessary” case at all–and could instead be occasions for the saving of two lives, the mother’s and the child’s.

Gov. Cuomo is in a war of words with the shepherd of the Church to which he putatively belongs, Timothy Cardinal Dolan, the archbishop of New York.  Dolan and all the bishops of the state have joined in a statement that staunchly opposes the abortion provision in the bill because it “would ease restrictions in state law on late-term abortion and runs the serious risk of broadly expanding abortion access at all stages of gestation.”  Moreover, the bill would, the bishops say, “repeal the portion of the penal law that governs abortion policy, opening the door for non-doctors to perform abortions and potentially decriminalizing even forced or coerced abortions.”

The governor’s response to these reasonable criticisms is to denounce opponents as “extremists.”  When questioned about the bishops’ opposition, the governor is reported to have said, “Their point is that they oppose abortion and think there are too many abortions. I understand that position, but I disagree with it.”

Let that sink in for a moment.  Forget about Bill Clinton’s famous (but disingenuous) “safe, legal, and rare.”  Andrew Cuomo, whose state has an abortion rate nearly twice the national average, thinks there are not now too many abortions on his watch.  The only reason to pass his bill is because you want more abortions, more easily obtained, later in pregnancy.

The bishops’ concern about the repeal of penal law provisions on abortion–and the dangers that such repeal opens up–is a valid one.  Cuomo’s bill, which would eliminate all meaningful restrictions on post-viability abortions in New York, also contains this language:

Subdivisions two and three of section 125.05, subdivision two of section 125.15, subdivision three of section 125.20 and sections 125.40, 125.45, 125.50, 125.55 and 125.60 of the penal law are hereby repealed to the extent that they are inconsistent with this section.

What is the import of all this?  You can find out by going to Article 125 of the New York Penal Law, “Homicide, Abortion and Related Offenses.”  Check out the sections and subdivisions named in the governor’s bill.  They constitute essentially the entirety of New York’s present statutory restrictions on abortion.  Then the question becomes, what does it mean to say they are all “hereby repealed to the extent that they are inconsistent” with Cuomo’s bill?  This does not appear on its face to be an outright repeal with the stroke of a pen.  Only those existing provisions found (by a judge?) to be “inconsistent” with the new bill would be considered repealed.  But read the existing provisions, which ban late-term abortions and criminalize acts that cause the deaths of viable unborn children.  Would any of them survive the hostile scrutiny of a typical liberal judge?  Not on your life.  Or rather, not on the nearest unborn baby’s life.

So it is fair to say that New York’s whole abortion law is wiped off the slate and replaced with Cuomo’s bland statement that “[t]he state shall not deny a women’s [sic] right to obtain an abortion as established by the United States Supreme Court in the 1973 decision in Roe v. Wade.”  In fact, there appears to be nothing banned, not a single abortion performed by anyone that is prohibited or restricted in any way, by the governor’s bill.

And Andrew Cuomo has the gall to label other people “extremists.”
 

Unlike some other commentators, I was not surprised that Justice Scalia dissented in Maryland v. King, the 5-4 ruling that states can take DNA samples from criminal defendants who have been arraigned for a violent crime but not (yet) convicted.  Justice Scalia often takes what appears superficially to be a “liberal” turn in cases involving the Fourth, Fifth, and Sixth Amendments, and often gives a fairly strict “textualist” reading of these provisions.

More surprising was that Justice Breyer joined Justices Kennedy, Thomas, and Alito, and Chief Justice Roberts, in the majority of a “pro-law enforcement” decision.  Since he did not write separately, his reasons can be left to more or less informed speculation about his “pragmatism” or his friendliness in general to governmental power.

On the issues in the case, I find myself agreeing with the majority in King, and with its defenders such as the Wall Street Journal’s editors and Akhil Amar and Neal Katyal (at the NYT).  I think Noah Feldman’s Gattaca fears are wildly overblown, given the terms of the Maryland statute.

To return to Justice Scalia, what surprises me about his opinion is not the position he took, but the weakness of his argument.  He opens with this:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence. That prohibition is categorical and with­out exception; it lies at the very heart of the Fourth Amendment.

Here Justice Scalia’s textualism simply fails him.  What he calls a “categorical” prohibition that is “at the very heart of the Fourth Amendment” cannot even be found in its text.  Whence he comes by it, he never really says.

Scalia also takes great delight in an extended mockery of the argument of Justice Kennedy (for the Court) that DNA records are kept for “identification.”  Of course, “identification” has more than one meaning.  “Establishing the identity” of the person in custody is just one of them.  The other is “identifying criminal suspects,” a purpose Kennedy affirms (while Scalia pretends not to notice he does), and in that respect DNA sampling is more like fingerprinting and photography than Scalia allows.  Long before either of those older technologies, law enforcement had little trouble establishing the identity of the persons it had in custody, and even today fingerprints and photographs are far less important in the daily operations of the criminal justice system than regularized monitoring of those persons and of the chain of custodial control in moving them about.  The great advances of photography and fingerprinting were in crime-solving.  In this respect DNA is simply far more advanced for the same purposes.

But if crime-solving rather than identity-establishing is the real purpose, as Scalia rightly says, then isn’t the cheek swab for DNA a “search” under the Fourth Amendment?  Sure, but the question is whether it is an “unreasonable” one.  Justice Scalia is wrong to suggest that probable cause, or its weaker sister “reasonable suspicion,” is the touchstone of the Fourth Amendment.  Is a DNA swab a reasonable form of non-invasive personal search when routinely conducted of persons held on charges of violent crime?  The Maryland legislature, which carefully circumscribed the procedures by statute, thought the answer is “yes,” and five justices reasonably concluded that “yes” is a reasonable answer.

Justice Scalia says, at the end of his opinion, that:

All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is con­cerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault.

As Justice Kennedy noted for the Court, “All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice.”  When Justice Scalia says “[a]ll parties concede” the propriety of this practice, he does not indicate whether he agrees with that concession.  Does he?

If Justice Scalia thinks it would be constitutional to take King’s DNA after his conviction for second-degree assault, how then would that conviction conjure up probable cause or reasonable suspicion that he might be guilty of an unrelated violent rape committed six years earlier?  Consistent with his own argument, Scalia should condemn all use of DNA samples, even those taken from convicted offenders, if they are used, without any previous evidentiary basis for suspicion, in the pursuit of crime-solving in cold cases.

So Scalia leaves us to wonder whether he is a) willing to forgo an advanced crime-fighting tool that employs a routine, noninvasive search, even of persons already convicted of heinous offenses, but is unwilling to say so now in a case where no party makes that argument; or b) willing to set down, as a legal principle, an inconsistent application of the Fourth Amendment that its text will not support, between two classes of persons equally protected by its norms of probable cause and reasonableness, namely accused criminals and convicted ones, neither of whom is actively suspected of other unrelated crimes at the time of the search.

This was not one of Justice Scalia’s better judgments.

1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime is voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it misimagines contemporary standards to be. (See This Day for February 18, 1972.) 

As expected, President Obama nominated three people to open seats on the U.S. Court of Appeals for the D.C. Circuit yesterday, Patricia Millett, Cornelia Pillard, and Judge Robert Wilkins.  The Washington Post reports the nominees were selected to fill “three longtime vacancies.” This is inaccurate.  One of the seats in question only became open earlier this year when Judge David Sentelle took senior status.

Bench Memos may be interested in the Federalist Society’s First Annual Executive Branch Review Conference, to be held next Tuesday, June 11 at the National Press Club in Washington, D.C.  Speakers include Senator Ted Cruz, former Rep. David McIntosh, David Rivkin, James Capretta, George Terwilliger, Jonathan Turley, Peter Kirsanow, Todd Zywicki, and yours truly, among others.  The conference runs from 8:30am-2:30pm.  There is no charge (save for CLE credit).  Registration details are here. 

So reads a headline in today’s New York Times. The message of the article (which draws on a report released this week by the ACLU) is that blacks and whites use marijuana at the same rates but blacks are more likely to be arrested for marijuana posssession, so therefore discrimination must be afoot.

A few problems here: First, it is frequently claimed that this group uses a drug at the same rate as another group, but it is also frequently the case that the data — which obviously have to be taken with a grain of salt in this context anyhow — don’t bear this out (not to mention the fact that there’s a difference between counting those who have ever used a drug versus, say, having used it in the last week). On this first point, though, I’m willing to give the current report the benefit of the doubt.

But, second, even if two groups use marijuana at the same rate, that doesn’t mean we should expect arrest rates to be the same, and on this point the report, as I read it, is faulty. Indeed, the report implicitly acknowledges its limitations in this regard: “A more scholarly analysis would . . . control for a set of time-varying explanatory variables, such as total drug arrests and drug use, to test whether the coefficient on the race variable is statistically significant. Ideally, the multivariate regression analysis would also control for individual characteristics of each arrest, such as amount of marijuana possessed and the age and criminal history record of the individual arrested . . .”

For instance, the police are more likely to be interested in sellers than personal users; accordingly, if one group is more likely than another to be involved in sales, it is more likely to see arrests. Likewise, people who buy or sell a drug in open-air markets are more likely to attract police attention than those who sell drugs more discreetly. And I think this makes perfect sense and has nothing to do with discrimination: Not only is it easier to make arrests in this context, but there are fewer privacy concerns and such markets are especially objectionable to the law-abiding folks who find them in their neighborhoods. If the police ignored them, no doubt they would be called racist for that.

My point here is not to defend the marijuana laws and the way they are enforced, but to note that this report doesn’t make the case for racist policing.

Speaking of Asian Americans and Pacific Islanders, the Chronicle of Higher Education has an opinion piece in the current issue that complains about lumping the two together. It’s a tragic ”misclassification,” you see, because while Asian Americans may be overrepresented (and thus not deserving of preferential treatment), Pacific Islanders are underrepresented (and thus do deserve preferential treatment). But as I (admittedly predictably) say in my post on the CHE website:

Here’s a wild idea: Let’s give no preferential treatment to ANYONE on the basis of skin color or national origin!

That seems an especially attractive – indeed the only tenable — course as America becomes increasingly a multiethnic and multiracial society, and where individual Americans are themselves more and more likely to be multiethnic and multiracial (starting with our president).  As the article shows, it also avoids the problem of having to decide how to subdivide different groups:  Perhaps Latinos as a whole are “underrepresented,” but not Cubans or not Chileans; or perhaps whites generally are “overrepresented,” but not Ukrainians, unless you further subdivide Ukrainians by religion, in which case some of them are overrepresented and some are underrepresented and some are represented just right; etc.  Judge people as individuals, and dispense with the bean counting.

By the way, and just out of curiosity, into which category do Japanese Americans fall? Also, the Taiwanese?

1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit.)

Law professor (and Becket Fund lawyer) Mark Rienzi explores the gap “between President Obama and his lawyers over whether profit-making businesses can pursue goals other than making money, including adhering to religious requirements”:

Businesses act on principles beyond the pursuit of profit every day.  Vegan markets refuse to sell animal products because they are ethically opposed to hurting animals. Some employers have long provided benefits to same-sex partners based on the moral view that doing so is right and just.  Some investment funds refuse to invest in fossil-fuel companies because they view them as destructive.  Businesses following moral, ethical, philosophical, and environmental principles are all around us.

Similarly, some businesses operate according to religious principles.  The Hahn family, for example, are Mennonite Christians who run Conestoga Wood, a cabinet-making company in East Earl, PA.  They have long followed the President’s admonition to consider the “broader purpose” their business might serve, and to avoid leaving their “values at the door.”  Yet yesterday they heard government lawyers tell judges that because their company earns money, the Hahns cannot follow their religion while they work.  The government seeks to impose crushing fines on the Hahns ($95,000 dollars every day) unless the Hahns will start violating their religion and paying for drugs that they believe cause abortions.

The lawyers have it all wrong.  Earning money doesn’t suddenly give the government the right to extinguish your constitutional rights.  The New York Times Company is a profit-making corporation, but it obviously has free speech rights.  Many doctors provide abortions for profit, but of course the government could not stop them just because they make money.  We don’t trade in our constitutional rights when we earn a living.

I’ll be overseas next week and don’t expect to be blogging much.

The remaining weeks of June, however, are likely to be very busy, with rulings in the Supreme Court’s biggest cases coming down in the last week or two. If you’d like to follow my posts via social media, my Facebook page is at facebook.com/EdWhelanEPPC, and my Twitter account is @EdWhelanNRO. 

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Supporters of President Obama’s reported sudden rush to fill three D.C. Circuit vacancies are ridiculing Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, for criticizing Obama’s plan as a “type of court-packing reminiscent of FDR’s era.” But their ridicule is misguided and obscures the essence of Grassley’s charge.

In the National Journal, Norm Ornstein tells us that Grassley’s comment made him “laugh out loud” and left him

wondering whether a senior senator and longtime member of the Judiciary Committee really had no idea what court packing is, or was he reaching for new heights of disingenuousness: How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?

Somehow I doubt that Ornstein had the same reaction when Democratic senator (and Judiciary Committee member) Chuck Schumer accused President George W. Bush of the “packing of the Court with yet another reliable extreme voice” upon Samuel Alito’s confirmation to an existing vacancy on the Supreme Court. Did Ornstein “laugh out loud” when Democratic senator Pat Leahy, then the ranking member of the committee (and now and before then its chairman) charged (in a September 7, 2004, statement) that the Bush administration was “committed to packing the courts with individuals who will shape the bench according to narrow ideological goals”?

As these two examples (drawn from a quick Nexis search) illustrate, the charge of court-packing, with, as Washington Post columnist Ruth Marcus puts it, “its sinister Rooseveltian overtones of a president maneuvering to game the system,” is a routine part of political discourse over judicial nominations. That, of course, doesn’t justify any particular use of the charge. But it does mean that it’s silly of Ornstein, Marcus, and others to attack Grassley merely because he is applying the term to Obama’s plan to fill existing vacancies.

Just as Roosevelt adopted his court-packing plan for the predominant purpose of obtaining judicial approval of his policy agenda, Grassley’s particular complaint was that the White House’s press on the D.C. Circuit is primarily motivated by its desire to obtain judicial approval of Obama’s policy agenda. (As I spelled out in three recent posts, there is no neutral principle that would justify the Obama administration’s sudden rush on the D.C. Circuit.) Grassley specifically cited a Washington Post report that explained the White House’s approach to D.C. Circuit nominations in these terms:

Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.

Obama’s own supporters cite Obama’s policy agenda to justify the rush. For example (from the New York Times):

“The court is critically important — the majority has made decisions that have frustrated the president’s agenda,” said Nan Aron, a liberal activist who has called for Mr. Obama to be more aggressive in nominating judges.

Further, Grassley has ample basis for accusing Obama of “maneuvering to game the system” (Marcus’s apt phrase for what “court packing” especially connotes). Just as Roosevelt sought to change the settled rules on the number of Supreme Court seats, Obama is working with Senate majority leader Harry Reid to change the settled rules on the availability of the filibuster for nominations. Obama’s rush on D.C. Circuit nominees serves that broader plan. From the NYT article:

Mr. Obama’s decision to make the nominations all at once is part of a broader strategy by Democrats to shine a spotlight on what they say is Republican obstruction in the Senate.…

With enough public pressure [over blocked nominations], some Democrats hope that they could change the Senate rules to prohibit filibusters on judicial nominations and in some other areas.

“A single blocked nomination may not generate much publicity, but by blocking so many nominees at once, the Republicans are overplaying their hand,” Senator Charles E. Schumer, Democrat of New York, told reporters on Thursday. “The other side must be careful. If they think they can win a debate over whether the Senate should change its rules, they might very well be mistaken.”

The New York Times continues to try to influence the Supreme Court’s decision in Fisher v. University of Texas, with another front-page, above-the-fold story today. The gist of it is that some universities have done a better job than others in moving from racial preferences to socioeconomic preferences, because the students admitted under the latter approach are more likely to need financial help and some schools are reluctant to foot that bill. One senses that this is supposed to warn the Court away from assuming that getting rid of racial preferences will result in a shift to socioeconomic preferences, but if so, I think the Times story may backfire. It seems to me there are three takeaways from what the Times says, and all three cut in the anti-affirmative-action direction.

First, it suggests that the students who are admitted under the current racial-preferences system are not socioeconomically disadvantaged. That is, the black and Latino students getting preferences are not from tough neighborhoods, but from backgrounds indistinguishable from most of the white and Asian students admitted. This is not helpful to the race-preference apologists, and it is also not news, by the way:  The pro-preference book The Shape of the River acknowledged that 86 percent of the African-American students admitted to the selective schools studied there came from high- or middle-income groups (and thus only 14 percent from low-socioeconomic-status backgrounds).

Second, also implicit in the Times story is that, for schools to make any movement at all toward looking for diamonds in the rough of all colors — rather than using race as a proxy for diversity of background — they need a strong shove. That is, they need to be told to stop engaging in racial discrimination.  Some schools may do a better job in making the transition than others, but the shove is apparently needed for them all.

Third, since when would the Court allow racial discrimination because it is cheaper than being nondiscriminatory? The Times seems to think that it is perfectly fine for schools to argue, “Look, we feel better about ourselves when we can say we have diversity in our student body. Now, we know that what we’re supposed to be after is actual background diversity, but the trouble is that it’s just too darn expensive. So we’d like to admit students based on their skin color instead.” If a company said using skin color was a cheaper way to sort applicants than actually determining their educational qualifications on a case-by-case basis, a judge would be quite dismissive, and rightly so.

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton will appoint Barkett to the Eleventh Circuit.)

The White House is expected to demand quick Senate action on its impending nominations to the D.C. Circuit. Any such demand ought to be considered against the backdrop of the Senate’s treatment of President George W. Bush’s nominees to that court:

1. President Bush nominated the superbly qualified Miguel Estrada  to the D.C. Circuit on May 9, 2001. Senate Democrats did not give Estrada a hearing until September 2002, and they then held his nomination in committee. After they lost control of the Senate in the 2002 elections, they unleashed the unprecedented use of the filibuster against the Estrada nomination and defeated seven cloture petitions. In September 2003, 848 days after his nomination, Estrada withdrew.

2. Bush nominated another outstanding candidate, Peter B. Keisler, to the D.C. Circuit on June 29, 2006. After Senate Democrats took control of the Senate, they never moved Keisler’s nomination out of committee. Keisler’s nomination died some 2-1/2 years after it was made.

3. Bush did succeed in getting four of his nominees confirmed (a net of three, as John Roberts was elevated to Chief Justice), but only after extended delays and massive obstruction. Roberts’s nomination took 729 days to confirmation. Janice Rogers Brown’s took 684 days and encountered two cloture defeats. Thomas Griffith’s took 400 days. And Brett Kavanaugh’s took 1,036 days, including an unsuccessful filibuster effort.

By contrast, Senate Republicans have blocked (and have forced cloture votes on) only one of President Obama’s D.C. Circuit nominees, Caitlin Halligan. Sri Srinivasan’s confirmation last week came a mere six weeks after Senate Judiciary Committee chairman Pat Leahy afforded him a Judiciary Committee hearing. (Srinivasan was first nominated in June 2012—a hasty mid-election year nomination that no one expected any action on. Even then, his time from nomination to confirmation was less than a year—less (and, in most cases, much less) than that of the Bush appointees.)

The White House’s reported sudden rush to fill three D.C. Circuit vacancies, even as it neglects judicial-emergency vacancies on overworked courts, needs also to be considered in the context of President Obama’s manifest lack of respect for, and lack of seriousness about, the D.C. Circuit:

1. During the first twenty months of his first presidential term, Obama failed to make any nominations to the two D.C. Circuit vacancies that existed throughout that period. Instead, he attempted to use a D.C. Circuit seat as a “political booby prize” by offering it to then-White House counsel Greg Craig as a means of easing Craig out of his job.

2. As I reported more than three years ago—way back in early 2010—the White House had settled on Sri Srinivasan for a D.C. Circuit nomination. But the Left then went after Srinivasan, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. So the White House abandoned its plans to nominate him. Given Srinivasan’s rapid and smooth path to confirmation in recent weeks, it’s fair to assume that he would have been confirmed three years ago if the White House hadn’t caved to pressure from the Left.

3. Obama ended up nominating New York lawyer Caitlin Halligan to the D.C. Circuit at the end of September 2010. Halligan’s nomination was blocked by a Republican filibuster in December 2011. Instead of promptly renominating Halligan in January 2012 or accepting his defeat and moving on, Obama waited an additional five months, until June 2012, to renominate her. The White House only withdrew her nomination two months ago, in the wake of a second unsuccessful vote on cloture.

4. In the fall of 2011, in an elevation of ideological and diversity considerations over ability, the White House was planning to nominate NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit. But Adegbile ended up joining the “significant number of President Obama’s potential judicial nominees” who failed even to pass the ABA judicial-evaluations committee’s screening.

The New York Times reports that, in the immediate aftermath of the confirmation of Sri Srinivasan to the D.C. Circuit, President Obama will soon make three more nominations to the D.C. Circuit, in “a move that is certain to unleash fierce Republican opposition and [that] could rekindle a broader partisan struggle over Senate rules.”

There is no neutral principle that justifies the Obama administration’s sudden rush on the D.C. Circuit. The D.C. Circuit may well be the most underworked court in the country. Further, with Srinivasan’s appointment, the D.C. Circuit now has the equivalent of 10.5 11.25 full-time judges—eight judges in active service, together with six senior judges whose workloads (I’m reliably informed) add up to 2.5 3.25 full-time equivalents. [1 p.m. corrections in preceding sentence.] So while it is currently authorized 11 judgeships, it will basically be operating at that level without the need of any further appointments.

If the White House were seriously interested in relieving the judicial workload, it would presumably be giving high priority to the “judicial emergencies” identified by the Administrative Office of the U.S. Courts. The three D.C. Circuit vacancies are not included among the 32 existing judicial emergencies. Further, it’s striking that of those 32 judicial emergencies, the White House has made nominations to only eight of those seats, and four of those eight nominations were made just this month. Of the remaining 24 judicial emergencies for which the White House has made no nomination, vacancies have existed for periods as long as:

3,071 days

2,706 days

1,641 days

1,590 days

1,570 days

1,238 days

1,225 days

939 days

877 days

728 days

688 days

606 days

604 days

What good reason is there for the White House to be neglecting these judicial-emergency vacancies and instead to be pressing nominations for non-emergency vacancies on an underworked court? One of the D.C. Circuit vacancies has existed for only 95 days. The oldest of the three—for the seat John Roberts vacated to become Chief Justice—is indeed quite old (2,799 days), but the fact that then-Senator Obama and his fellow Senate Democrats blocked President George W. Bush’s nomination of Peter Keisler, an outstanding candidate who won remarkable bipartisan acclaim, amply demonstrates that they perceived no urgent need to fill that seat.

1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”