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Nevada Law Profs (and Others) vs. Rule of Law—Part 3



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The LGBT Section of the Nevada bar professes itself “outraged” by state bar president Alan J. Lefebvre’s column that rightly criticizes the state attorney general for failing to defend Nevada’s marriage laws. Let’s examine the supposed causes of the purported outrage:

1. The LBGT Section letter asserts that Lefebvre’s “opinions heavily rest on religious and conservative ideological grounds, a direct violation of [state bar] bylaws and an abuse of the office of Bar President.”

The factual predicate of this complaint is unsound. As I pointed out in point 1 of my Part 1 post, there is nothing in Lefebvre’s column that invokes religion. As for “conservative ideological grounds”: Is it conceivably the case that the principle that a lawyer is ethically obligated to represent his client’s legal position zealously in court and the corollary principle that a state attorney general must vigorously defend state laws against challenge under federal law so long as there are nonfrivolous grounds for doing so are now “conservative ideological” principles? If so, then belief in the rule of law suffers from the same frailty. (I’ll note that liberal law professor, and legal ethics expert, Stephen Gillers has stated his general agreement with these principles.)

2. The LGBT Section letter asserts that Lefebvre has violated state bar rules by “making statements concerning [his] personal opinions.” Again, what Lefebvre has done is what bar officials throughout the country ought to be doing: defending the basic understanding of the duty of a state attorney general.

3. The LGBT Section letter contends that because the state attorney general takes an oath to the federal Constitution, her “first duty of loyalty is to the United States government and the United States Constitution.” Well, all or nearly all lawyers practicing in this country take an oath to the federal Constitution. No one has ever understood the taking of that oath as license for a lawyer to sacrifice his client’s interest to his own personal reading of the Constitution or to his own predictive reading of how the Supreme Court will rule on an unresolved issue.

In sum, Lefebvre deserves hearty acclaim from the state bar and from anyone who cares about the rule of law.

Nevada Law Profs (and Others) vs. Rule of Law—Part 2



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Now let’s look at UNLV law school dean Daniel W. Hamilton’s letter objecting to Nevada state bar president Alan J. Lefebvre’s column:

1. Hamilton states that Lefebvre’s column “was at odds with the best traditions of tolerance and respect for dissenting views that characterize the legal profession and the Nevada bar.” Hamilton says that he is “certain [Lefebvre] did not intentionally denigrate anyone, but the words of the column speak for themselves and require a response.” (Emphasis added.)

The only sense that I can make of Hamilton’s letter is that he thinks that Lefebvre’s criticism of the state attorney general’s failure to defend state marriage laws somehow amounts to intolerant denigration of gays and lesbians. That is an extraordinary charge. Even though Hamilton himself refers only to the “likelihood” that state marriage laws are unenforceable, he evidently thinks that it’s rude for anyone to argue that it’s the duty of state attorneys general to defend such laws.

Hamilton likewise evidently thinks it’s “denigrat[ing]” for anyone not to support the radical redefinition of marriage.

So much for his own “tolerance and respect for dissenting views.”

2. Hamilton nakedly (and wrongly) asserts that the state attorney general’s decision not to defend Nevada’s laws was “well-reasoned.” But he doesn’t bother to confront Lefebvre’s arguments.

3. Hamilton thinks it significant that the Supreme Court, in the Prop 8 case, didn’t “question the prerogative of state officials to exercise [the] discretion” not to defend state laws. But the case didn’t present that question. The Supreme Court doesn’t have general supervisory authority over state attorneys general, so there was no reason for the Court to address the matter.

This fellow is the dean of a law school (even a fourth-tier one)?!?

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Nevada Law Profs (and Others) vs. Rule of Law—Part 1



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“There are lots of powerful, vengeful people among the elite. The progressives’ pieties are to be followed without deviation or the heresy axe will fall.”

So wrote Nevada state bar president Alan J. Lefebvre near the end of his recent Nevada Lawyer column criticizing the state attorney general for her remarkable decision to fail to defend Nevada’s marriage laws (a decision all the more extraordinary as the state had prevailed in the district court). Proving his point, some fifty members of the faculty of UNLV’s law school have signed an insipid letter objecting to his column, the law school’s dean has similarly weighed in, and the LGBT Section of the Nevada bar has called for the state bar to remedy his supposed abuse of office.

(I explain in this Weekly Standard essay why state attorneys general have an ethical duty to defend state marriage laws.)

I’ll parse the faculty letter in this post, the dean’s letter in the next post, and the LGBT Section’s letter in a third.

The UNLV faculty letter asserts that the “tone” of Lefebvre’s column is “undignified” and that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references.” It claims that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage,” and it complains that he “disparaged” the attorney general’s decision not to defend state marriage laws. It contends that Lefebvre’s column “was lacking in the civility that should guide the behavior of every Nevada attorney.”

Who knew that, in the desert of Nevada, UNLV law school professors were such delicate flowers that could be withered by comments as mild as Lefebvre’s? Some observations:

1. I don’t know which passages of Lefebvre’s column the faculty signatories particularly object to, but their assertion that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references” is patently false, as any reader of the column will quickly discover.

Lefebvre presents an extended argument that the state attorney general was wrong to fail to defend her client and to abandon the victory that the state had won in the district court. Yes, he enlivens that argument with some colloquial passages—e.g., the duty to defend the state constitution “applies when it is more than 110 degrees and on overcast days alike,” “Wow! The Attorney General tapped out, on that basis!”—but I don’t see how such informalities are an offense to civility.

What “insults” does Lefebvre commit? The letter doesn’t specify any, and I don’t see any. Yes, Lefebvre, after demonstrating that the attorney general’s decision was ill-founded, speculates that she “likely feared the consequences if she didn’t yank … the defense of the appeal.” That is surely reasonable speculation, and questioning the motives of a public official isn’t tantamount to an insult. (Imagine: political considerations affecting a politician’s decision!)

The claim that the letter contains “ad hominem attacks” demonstrates only that fifty law professors don’t know what an ad hominem attack is. In fact, Lefebvre so avoids personalizing his criticism that he doesn’t even name the attorney general.

One person’s “sarcasm” is, I suppose, another person’s gentle humor. Again, I see nothing in the column that fairly invites criticism on that score.  

I confess that I have no idea what the complaint about “sectarian references” means. Perhaps it’s an effort to stigmatize support for marriage as inherently “sectarian.” The only passage in the column that remotely involves religion is Lefebvre’s closing observation that “when this is all over, somebody in the federal government owes an apology to the State of Deseret” (for the federal government’s outlawing of polygamy in the 19th century). There is nothing “sectarian” about Lefebvre’s observation (I’ve heard folks on both sides of the marriage debate make much the same point), and insofar as the letter’s charge is coded anti-Mormonism, Lefebvre’s bio suggests that he’s Catholic, not Mormon.

2. The letter wrongly asserts that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage.” No, his actual (and ostensible) subject was the state attorney general’s failure to defend state laws on marriage. Beyond making the elementary argument that the state attorney general violated her duty (an argument that the faculty letter doesn’t confront), his column doesn’t set forth his own personal or legal views on marriage.

3. For some broader perspective on the faculty letter’s invocation of “civility,” here’s a story from December 2001, less than three months after the 9/11 attacks:

U.S. Marine recruiters visiting the University of Nevada at Las Vegas were met with hooting, catcalls and other disruptive tactics by members of the law school’s faculty and staff, reports columnist Ken Ward of the Las Vegas Review-Journal.

A student who witnessed the scene reported that Marine lawyers speaking at the UNLV Boyd Law School had their words drowned out by faculty who cranked up the volume on nearby televisions and talked and laughed among each other loudly. The student described the professors’ actions as “not only disrespectful but immature.”

The faculty is upset about the military’s “don’t ask, don’t tell” policy toward homosexuals.

Yes, that was more than 12 years ago, but it’s a safe bet that some of the law professors then directing “hooting, catcalls and other disruptive tactics” at Marine recruiters are among those now complaining of Lefebvre’s supposed lack of civility. As to the current situation, one well-informed source tells me: “Even by the standards of the modern American law school, UNLV’s faculty is remarkably intolerant of dissent. Opponents to the Orthodoxy are either evil or ignorant, take your pick.”

In sum, it’s evident that the faculty letter’s real objection is to the fact that Lefebvre is criticizing the state attorney general’s violation of her duty—just as bar officials around the country ought to be doing with respect to similar derelictions—and that it is hiding that objection behind the camouflage of baseless complaints about incivility.

Missing the Point on Democratic Accountability for State Judges



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In Sunday’s Washington Post, two distinguished board members of Soros-funded advocacy organization Justice at Stake wrote an op-ed arguing that nefarious political forces are somehow trying to “intimidate” judges. Let’s take a look at the facts.

The primary example of “intimidation” listed in the op-ed is the recent kerfuffle surrounding the execution of convicted murderer Clayton Lockett, but the op-ed is more interesting for what it doesn’t say than what it does. For those who haven’t been following the case closely, here’s a quick summary: Shortly before their scheduled execution dates, and after exhausting all of their avenues of criminal appeal, Lockett and one other death-row inmate filed a long-shot civil lawsuit challenging a state law confidentiality provision that protects the identity of the provider of the lethal-injection chemicals. The Oklahoma court of criminal appeals repeatedly refused to stay the executions while the civil lawsuit ran through the system. The Oklahoma supreme court, however, was not so particular: The prisoners convinced the supreme court to stay the executions, purportedly as part of the civil suit. In light of the supreme court’s lack of jurisdiction to order the stay, the governor ordered the executions to proceed anyway after a brief delay. During the delay, the Oklahoma supreme court reversed its earlier decision. In addition, one member of the legislature introduced articles of impeachment against the supreme-court justices who had voted for the stay. (The execution ultimately went very poorly, although there’s no reason to think that it had anything to do with the legal wrangling.)

But what the op-ed doesn’t tell you is that the Oklahoma supreme court was completely, totally, and outrageously wrong. It was the Oklahoma supreme court’s decision that triggered the constitutional crisis, not the governor’s refusal or the articles of impeachment. The plain text of the Oklahoma constitution forbids the supreme court from exercising jurisdiction over criminal cases, allowing it to rule only on whether a case is criminal or civil. By framing the issue as “intimidation,” though, the op-ed sidesteps the legal merits entirely and goes straight for the emotional jugular. After all, who is in favor of “intimidation” when a death-row inmate is looking for his day in court? The legal merits of the case are far less flattering to the supposed targets of intimidation, something you’d never figure out without digging deeper.

The same sort of emotional appeal underlies the authors’ objections to other court-related legislation and democratic participation in accountability. Brandishing various unconnected incidents, some from nearly ten years ago, the authors string together an “atmosphere of bullying” that, they say, puts courts under “pressure.” This is not exactly rigorous argument.

Although the op-ed also claims that elections “turn judges into politicians in black robes,” its authors entirely fail to see that in many cases, such as the Lockett case, the judges have turned themselves into politicians. That’s why retention elections exist in the first place: to ensure that misbehaving judges can be removed. Whether it’s the Oklahoma supreme court clearly overstepping its authority in the Lockett case or the New Jersey supreme court micromanaging every aspect of state government based on no more authority than its passing whim, accountability ensures that judicial decisions comport with the laws actually enacted by the people through their representatives. Judges certainly have a crucial part to play, but the rule of law is not the same thing as rule by judges.

This raises a larger point about the debate over the Missouri Plan, which gives the lawyer-industrial complex nearly total control over judicial selection. Missouri Plan advocates frequently reassure citizens that retention elections provide accountability for removal of misbehaving judges. But when democratic accountability through the prescribed mechanism finally becomes likely, somehow “accountability” becomes “intimidation” and “bullying.” That’s a bait-and-switch, and it’s disappointing to see such distinguished former jurists selling the bait.

Dumping Marriage into the “Ash Heap of History”



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I’ve barely skimmed today’s ruling by federal district judge John E. Jones III (a Bush 43 appointee) striking down Pennsylvania’s marriage laws, but I’ll offer two quick comments:

1. Jones’s closing exhortation that “it is time to discard [Pennsylvania’s marriage laws] into the ash heap of history” displays a frighteningly Jacobin temperament. What incredible hubris.

2. Jones broadly concludes that “all couples deserve equal dignity in the realm of civil marriage all Pennsylvanians have the right to marry the person of their choice.”* If he somewhere distinguishes away laws against incestuous marriages, my quick skim (supplemented by a word search) missed it. If he somewhere explains why his principle should be limited to couples, I also missed it. (Update: To be clear, I am of course not contending that Jones has held that state laws banning incestuous marriages or polygamy are invalid; I am merely observing that his reasoning doesn’​t provide grounds for avoiding those conclusions.)

* On my initial quick skim, I mistakenly quoted a passage in which Jones is summarizing what plaintiffs are asking him to declare. Although I think it is clear that he understands himself to be giving them exactly what they ask for, I shouldn’​t have put those precise words in his mouth. (His reference to “​couples” is of course substantively equivalent to the ​“​marry the person” language that I quoted.) ​

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Arizona Attorney General Tom Horne Should Resign



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Arizona Attorney General Tom Horne is having a very bad month. Early last week, a former employee resigned from his office and complained that Horne and his senior staff were using staff and state resources to promote his reelection. The story gained some traction amid reports that one of Horne’s top advisers would resign, and that “Some staffers are seeking or plan to seek advice from private attorneys in the wake of [the] allegations.”

Then, just as that news was capturing headlines, Yavapai County Attorney Sheila Polk announced that she will move forward with a case concerning potential violations of campaign-finance law during Horne’s 2010 campaign.  To hammer the theme home, the Arizona Public Integrity Alliance, a conservative group, is now running a TV ad (below) calling on Horne to resign, focusing on what a columnist for the Arizona Republic described as “Horne’s hit-and-run fender bender in 2012, while on a not-so-secret lunchtime rendezvous with the suspected girlfriend whom he hired to a six-figure state salary.”  As the same columnist put it:  ”On of a scale of one being a disaster and ten being a flat-out catastrophe, last week had to weigh in at about an eleven for Attorney General Tom Horne.”

I don’t know whether these allegations are true. Horne needs to come clean as soon as possible. But the old phrase “where there is smoke, there is fire” seems inadequate to the moment, since right now Horne looks like he is the only person willing to stay in the building while it burns down.  As my colleagues and I have explained before, no set of public officials have demonstrated more willingness and capacity to challenge the Obama administration’s overreach than the states’ attorneys general.  Tom Horne may sympathize with that mission, but his problems are escalating at an alarming pace, compromising his ability to meaningfully engage in the fight for limited constitutional government.  He should resign.

This Day in Liberal Judicial Activism—May 20



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1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer

Re: Marriage Lawlessness in Oregon



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It’s no surprise that poor writing often accompanies poor thinking, but this closing passage (emphasis added) of Judge McShane’s opinion stands out, all the more so as McShane evidently is trying to be eloquent:

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.

If you’re “going down a slippery slope,” you’re not likely to be looking “to the sky to see what might fall.” I’m not quite sure what it means for a slope to have “boundaries,” but your fear would be that the bottom is a long way down or that you’ll be badly injured during the slide. 

Marriage Lawlessness in Oregon



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In an opinion today, federal district judge Michael J. McShane ruled that Oregon’s marriage laws flunk rational-basis review, and he ordered that Oregon officials immediately stop enforcing those laws “to the extent that they would prohibit a person from marrying another person of the same gender.”

A few quick observations:

1. Oregon officials failed to defend their own marriage laws. Judge McShane said that the case therefore “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.” But even his comparison is inapt, as no one expects one side in a “friendly tennis match” to try to lose.

2. Oregon’s attorney general acted unethically in failing to do her legal duty (as I explain more fully in this essay).

3. The greatest extent of any relief in this case, as law professor Vik Amar (a former Blackmun clerk) has argued, should have been a default judgment in favor of the named plaintiffs, not an order enjoining state officials from enforcing the state marriage laws against anyone.

4. For reasons I’ve spelled out elsewhere (e.g., point 1 here), any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard.

5. It seems probable, given the Supreme Court’s decision on lack of standing on appeal in the Prop 8 case, that no one who is willing to defend Oregon’s laws has standing to defend them or even to seek a stay of McShane’s order.

6. For what it’s worth (and, given how other judges have recently ruled in similar cases, I readily concede that it may not be worth much), McShane has the distinction of being the first openly gay federal judge in Oregon.

Cantor and McCarthy Join Judicial Education Project Amicus Brief in Origination Clause Case



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The Judicial Education Project filed a brief last Thursday in Hotze v. Sebelius, a lawsuit challenging the Affordable Care Act under the Constitution’s Origination Clause. The Origination Clause requires that “all bills for raising revenue shall originate in the House of Representatives.”

The brief is well worth reading in its own right, both because it is a masterpiece and because it was joined by House majority leader Eric Cantor and House majority whip Kevin McCarthy. Some highlights (citations and footnotes omitted):

The Senate, recognizing that it is constitutionally forbidden from originating tax increases, did so by seizing upon a six-page House Bill (H.R. 3590) that provided tax credits for soldiers. The Senate took that bill, deleted every letter after the enacting clause, and replaced it with 2000 pages of unrelated tax increases, fundamental transformations of healthcare and health insurance, and various other legislative knick-knacks. But rather than simply call this new piece of legislation what it was—a Senate bill—the Senate claimed to have made only some “Amendments” to the House bill. If the Senate’s wholesale replacement of a short tax-credit-bill with massive, unrelated tax-increases does not violate the Origination Clause, then nothing does. This is not a slippery slope; it is the bottom of the puddle at the bottom of the hill.

Also:

The Origination Clause requires that bills for raising revenue “shall originate in the House,” but also states that “the Senate may propose or concur with Amendments as on other Bills.” The Clause makes sense—and has substantive bite—only if the amendment exception does not devour the origination rule. James Madison had it right when he told George Washington that those protesting the Senate’s power to amend “bills for raising revenue” were exaggerating its importance, because that power was limited to “the paltry right of the Senate to propose alterations in money bills.” The power to “amend” legislation does not include the power to replace tax-cut legislation with completely unrelated tax-increasing legislation. This is clear from the text and history of the Clause, as well as from judicial decisions.

Read the whole thing here.

Justice Scalia on Reforming Law Schools



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In his recent commencement address at William & Mary law school, Justice Scalia “vigorously dissent[s]” from proposals to reduce law school to two years:

It seems to me that the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession—the profession of law.

When Scalia says that law school “is a school preparing men and women … for a profession,” it’s clear, in the fuller context of his speech, that he is really setting forth his view of what law school ought to be. In other words, he’s discussing his ideal—the traditional ideal—of law school.

In Scalia’s view, a law-school degree ought to mean that the recipient is “learned in the law.” By contrast, modern law schools, with their “elimination of a core curriculum, and the accompanying proliferation of narrow (not to say silly) elective courses,” “increasingly abstain from saying there is anything you really need to know.” (Emphasis in original.) They thus “have only themselves to blame” for proposals to shorten law school to two years.

To put the point somewhat differently, modern law schools seem to have lost any sense of what their mission is. Amidst that confusion (and, of course, the troubling job environment for lawyers), the notion of law school as a trade school can seem attractive and sensible. Indeed, as someone who is skeptical that modern law schools are capable of returning to the traditional ideal, I’m somewhat inclined to see the trade-school model as preferable to the current reality.

Commencement Sense



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It’s rare that I have cause to praise anything written by a Yale law professor, so let me seize the occasion to highlight Stephen L. Carter’s excellent “Dear Class of 2014: Thanks for Not Disinviting Me.” Some excerpts:

In my day, the college campus was a place that celebrated the diversity of ideas. Pure argument was our guide. Staking out an unpopular position was admired — and the admiration, in turn, provided excellent training in the virtues of tolerance on the one hand and, on the other, integrity.

Your generation, I am pleased to say, seems to be doing away with all that. There’s no need for the ritual give and take of serious argument when, in your early 20s, you already know the answers to all questions. How marvelous it must be to realize at so tender an age that you will never, ever change your mind, because you will never, ever encounter disagreement! How I wish I’d had your confidence and fortitude. I could have spared myself many hours of patient reflection and intellectual struggle over the great issues of the day….

Once you depart the campus, the world will make unjust demands on you. You will have to work for a living. You will have to put up with people whose views you despise. Fortunately, as long as you don’t waste precious time reflecting in a serious way on the issues of the day — or, worse, contemplating the possibility that you might be mistaken on a question or two — you should have plenty of hours for Twitter and Google Hangout and the nonstop party that every truly just society was meant to be….

Now, before I close, I would like to address those members of the Class of 2014 who might think that it’s wrong to ban speakers whose views you reject. Your reactionary belief in tolerance and open-mindedness is truly distressing. I beg you to remember that every controversial question has only one answer. You have absolutely nothing to learn from people whose opinions you dislike.

And now, graduates, before things go too far — before you run the risk of being thought to be on the road to becoming responsible adults — please, rise to your feet, and, speaking with one voice, shout me down!

(I don’t know that Carter’s jibe about the graduates’ “involvement in the excellent work of bringing back the Middle Ages” is fair … to the Middle Ages—the period is arguably a victim of caricature—but I’ll leave that dispute to others.) 

This Day in Liberal Judicial Activism—May 18



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1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

This Day in Liberal Judicial Activism—May 17



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1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”

Judges (and Others) Behaving Badly



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The National Law Journal has an article about efforts being made to increase the number of minority law clerks for judges. It’s clear enough that these efforts are not limited to preventing discrimination, of course; rather, race is to be weighed.

I won’t belabor the moral problems raised by hiring with an eye on skin color, but I think it is worth mentioning that this is illegal. 

For starters, judges are state actors, as are government agencies, so there are constitutional problems with their involvement in these efforts. To the extent that nonprofits, also mentioned in the article, are involved, they are likewise prohibited from engaging in racial discrimination by Title VI of the 1964 Civil Rights Act if they get any federal money. Of course, the Supreme Court in its wisdom has interpreted Title VI and the Constitution to allow racial preferences in university admissions, but this “diversity” rationale has never been recognized by the Court in the employment context. 

Most important, Title VII of the 1964 Civil Rights Act has never had a “diversity” exception carved out of it by the federal courts, and it prohibits racial discrimination by federal and state employers, which would include judges. What’s more, it bans discrimination by any “employment agency,” which it defines as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes the agent of such person,” which would cover the nonprofits and others discussed in the National Law Journal article.

To paraphrase Luke 4:23, “Judge, sue thyself.”

This Day in Liberal Judicial Activism—May 16



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2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling:

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling.

Misleading and Dishonest Reporting from Jeffrey Toobin



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Over at The New Yorker’s blog, Jeffrey Toobin has a ridiculous post that distorts the facts and repeats paranoid conspiracy theories. Toobin’s beef is with the Federalist Society, the venerable educational organization that provides a forum for discussion of the most important conservative and libertarian legal issues, and Chuck Cooper, one of 22 speakers at its Second Annual Executive Branch Review Conference.

As Toobin concedes, events sponsored by the Federalist Society feature “high-level intellectual combat” between panelists from right and left. Having attended multiple prior conferences, which invariably offer excellent panel discussions (and usually offer CLE credit), I can tell you that the liberal and progressive speakers almost uniformly praise the Federalist Society for sponsoring a robust exchange of ideas and open debate among a wide variety of views.

Since Toobin knows all that, his characterization of the conference as “fevered” is inexcusable. (Watch the panels for yourself on YouTube.) Sure, there were intellectual fireworks, but that’s what every Federalist Society panel is about: robust intellectual debate. Panelists take reasoned legal positions and argue with the other panelists about legal substance. That’s something that Toobin can see at every Federalist Society event, and it’s really special, since open debate like that doesn’t happen much elsewhere.

Finally, Toobin gets to his primary target, former assistant attorney general in charge of DOJ’s Office of Legal Counsel Chuck Cooper. Cooper was one of three speakers at a lunchtime panel opining on the role of the coordinate branches of the government in checking the executive branch. Cooper gave his speech immediately between George Mason law professor Neomi Rao and Yale law professor William Eskridge (himself no conservative), both of whom gave provocative and illuminating speeches.

To hear Toobin tell the tale, Cooper gave a fiery speech endorsing impeachment. But that never happened. Watch the speech for yourself. Cooper was certainly the least academic of the panelists (he was, after all, the only non-academic), but, as you can see for yourself, he said nothing “radical.” Toobin completely ignores the tone and substance of Cooper’s speech, neither of which supports hysterical fear-mongering. As for impeachment talk, it’s hard to imagine an entire panel discussion devoted to Congress’s role in constraining the executive without discussing the legalities of the one direct mechanism that the Constitution actually gives to Congress for that purpose. Cooper carefully laid out the factual and legal analysis, none of which Toobin disputes on the merits, including ample quotes from liberal law professors who engaged with the impeachment issue during previous administrations.

But Cooper actually argued against impeachment, calling impeachment a “drastic” measure, and instead urging a bicameral censure resolution that would have no legal effect. Radical? Hardly. (Toobin notes that Cooper told him he doesn’t support impeachment.) But instead of reporting on, or even sparring with, any of Cooper’s arguments he opted to take this cheap shot at Cooper and the Federalist Society:

Still, the impeachment talk presents yet another illustration of the conservative movement’s radicalization. Once, it was only Tea Party zealots (and birther lunatics) who talked about Obama’s illegitimacy. Now it’s the grownups in the Federalist Society.

Toobin’s piece isn’t legal journalism; it’s click-bait for left-wing bloggers and pundits. He invokes conspiracy theories while claiming to repudiate them, misrepresents both tone and substance of the conference, and even slips in a jab at Cooper’s personal life and his views on same-sex marriage. His piece is ultimately little more than a misleading and dishonest attempt to demonize Chuck Cooper and the Federalist Society as part of what he calls “the conservative movement’s radicalization.” Hopefully his readers will pay more attention to the facts and arguments than he did.

This Day in Liberal Judicial Activism—May 15



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2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism).

No Naïve Deed Goes Unpunished



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Just a note on Fourth Circuit judge Roger Gregory, who sat on the panel that heard argument yesterday in a case challenging Virginia’s marriage laws and who, according to various accounts, was manifestly hostile to those laws.

Gregory was recess-appointed to the Fourth Circuit by President Clinton on December 27, 2000. His recess appointment would have expired at the end of 2001. But in a conciliatory measure for which he never received any meaningful credit, President George W. Bush included Gregory in his first batch of appellate nominees in May 2001, and Gregory was promptly confirmed to a lifetime position. He has consistently been among the most liberal members of that court.

Bush’s nomination of Gregory was the first of many steps by which the Fourth Circuit lost its reputation as the most stalwart court in the country and flipped dramatically into the Left’s grasp. Of its 13 active judges other than Gregory, eight are Democratic appointees (including five who are Obama appointees).

This Day in Liberal Judicial Activism—May 14



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1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss. 

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

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