ABA Panel

by Ed Whelan

I’ll be off to San Francisco late next week for my first (and probably last) American Bar Association annual meeting. No, I haven’t joined the ABA. Rather, I’ve been invited to take part in its “showcase program” on “The 2016 Presidential Election, U.S. Supreme Court Nominations, and the Current Supreme Court Vacancy” on Saturday, August 6. My fellow panelists will be law professor Pamela S. Karlan and former associate White House counsel Reginald J. Brown. NPR’s Carrie Johnson will moderate the panel. (More info on page 9 of this brochure.)

I’ll note that, back in April, fifteen former ABA presidents signed a letter to Senate leaders that seems to posit that the Senate has a constitutional duty to “hold[] a fair hearing and timely vote” on the Garland nomination. I look forward to explaining why that position is plainly wrong.

Courageous AGs Weigh In On Side of Truth and Justice

by Jonathan Keim

Earlier this month, the AGs of Utah, Arizona, Nevada, Nebraska, and Wisconsin filed an amicus brief in California state appeals court supporting the defendants in a lawsuit arising out of the Moonlight Fire, the 2007 forest blaze that authorities blamed on a logging company. One would hope that the primary argument in the brief would be uncontroversial: “[g]overnment investigations and prosecutions must be conducted with absolute integrity and a commitment to uncovering truth and doing justice.” Unfortunately, it looks like California’s Attorney General, Kamala Harris, needs some reminding.

The AGs’ brief makes a powerful case that the state of California really dropped the ball on this one (citations omitted):

[Wildland Fire Investigation Training and Equipment Fund, known as WiFITER] was an off-books fund set up by a small group within Cal Fire, for the benefit of Cal Fire fire investigators, to hold money recovered found that WiFITER also created an improper financial incentive for the government’s investigator and disclosed expert; the fund has since been found unlawful by California’s State Auditor, and has been dissolved. In the face of these abuses, the court below could recall “no instance in experience over forty seven years as an advocate and as a judge, in which the [California] Attorney General so thoroughly departed from the high standard it represents, and, in every other instance, has exemplified.”


Mr. White—a disclosed expert—had an improper financial incentive in the case as a result of WiFITER. As Judge Nichols found, the evidence disclosed demonstrated that Cal Fire was motivated to target affluent defendants to keep WiFITER from “running in the red,” that they were looking for their next “high % recovery,” and that Mr. White, the lead Moonlight Fire investigator, was a direct beneficiary of funds from that account and participated in managing it.

There’s plenty more here.  You can also read my previous coverage of this case here, here, here, here, here, and here. It’s a chilling tale of what happens when the government forgets that its job is to seek justice, not just to win. 

The Missing Nominee

by Ed Whelan

Supreme Court nominee Merrick Garland wasn’t mentioned a single time during the Democratic National Convention. Not by President Obama. Not by Hillary Clinton. Not by anyone.

Some observations:

1. The obvious reason that no one mentioned Judge Garland is because he is unpopular with the Left and any mention of him would have been likely to elicit raucous booing. (Consider, for example, how Leon Panetta was received.)

Senate Democratic candidates will surely continue to criticize Republicans for not moving the Garland nomination. But the fact that Obama and Clinton didn’t see fit even to mention his name won’t help their case.

2. As I’ve said repeatedly over the years, I like and respect Garland. If the Scalia vacancy ends up being filled by a Democratic president—and I very much hope that it doesn’t—Garland would be at or near the top of my list of folks to fill it.

That said, I have no real hopes that Garland would be markedly better for the Court than anyone else a Democratic president might pick. While I believe that he would be less inclined than many others to lead the charge for the invention of rights not in the Constitution and for the contraction or elimination of rights (and limits on governmental power) that are in the Constitution, I doubt that he would decline to provide a fifth vote for whatever the four other liberals would want.

3. Reporters ought to ask Hillary Clinton whether she would re-nominate Garland. I think that’s a question she would prefer not to answer. If she says yes, she will upset a lot of folks on the Left. But Garland, who was a senior official in the Department of Justice during Bill Clinton’s administration before Clinton appointed him to the D.C. Circuit in 1997, is very well connected to, and well regarded by, Hillary advisers. (As it happens, one of his new law clerks, Margaret Goodlander, is married to Hillary adviser Jake Sullivan.) So she’d also upset a lot of people if she says no.

4. Let’s consider the prospects that Judge Garland will become Justice Garland:

a. Garland’s best hope is that Hillary wins the presidency but Republicans retain control of the Senate. In this scenario, folks on the Left might reasonably fear that Hillary couldn’t get a vociferous liberal confirmed, so they’d be less likely to criticize her for re-nominating Garland.

b. By contrast, if Hillary wins the presidency and Democrats gain control of the Senate, the Left will push hard for a more liberal nominee. I think that Garland would have at best a 50/50 chance of being re-nominated.

c. Might Senate Republicans move to confirm Garland in the lame-duck session if Hillary wins? Both Senate majority leader Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley have rejected this option. The scenario in which they’re most likely to be urged to reconsider their position is one in which, in addition to a Hillary victory, Democrats win control of the new Senate. But that’s exactly the scenario in which Democrats are least likely to want to move the Garland nomination. So I don’t think it’s very promising for Garland.

d. What about the (unlikely) scenario in which Trump is elected president but Democrats win control of the Senate? In that event, there would be a very narrow window for action on the Garland nomination between the time the new Senate is seated on January 3 and the time Trump takes office on January 20. (Obama, as I understand it, would need to re-nominate Garland, as the Senate would have returned the original nomination to the White House at the end of its session.) Could Democrats race the nomination through in such a short time? And would they repeal the filibuster (which is still available against Supreme Court nominees) to make that happen—and thus deprive themselves of a tool to block Trump’s Supreme Court nominees? Garland’s prospects don’t look promising in this scenario.

This Day in Liberal Judicial Activism—July 29

by Ed Whelan

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Control Freaks

by Roger Clegg

George Leef’s most recent column in Forbes is on the liberal mindset generally, but its principal example is “a chilling case, Stormans Inc. v. Wiesman, where the courts have gone along with an astounding exercise of regulatory power to punish people simply for their decision not to sell abortifacient drugs.”  Readers may recall that this is the case in which, alas, the Supreme Court recently denied review (over a strong dissent by Justice Alito, joined by Chief Justice Roberts and Justice Thomas); Ed Whelan wrote about the petition here.

This Day in Liberal Judicial Activism—July 28

by Ed Whelan

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.” 

This Day in Liberal Judicial Activism—July 25

by Ed Whelan

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

This Day in Liberal Judicial Activism—July 24

by Ed Whelan

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writingsand, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind. Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.