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This Day in Liberal Judicial Activism—October 31



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1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket.  The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.”  On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

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This Day in Liberal Judicial Activism—October 30



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2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.”  The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect.  In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding.  The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.”  In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. 

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This Day in Liberal Judicial Activism—October 25



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1957—No case is too easy for a liberal judicial activist to mess up.  In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery.  What was that evidence?  As Judge David L. Bazelon, in dissent, summarizes it:  “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.”  “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”!  In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor.  In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage?  Echoing the Declaration of Independence, the New Jersey constitution provides:  “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”  Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.

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This Day in Liberal Judicial Activism—October 23



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1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

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This Day in Liberal Judicial Activism—October 22



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1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty?  Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short.  The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause. 

Undeterred, in Foster v. State Florida chief justice (and, since 1993, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation.  Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution.  And there are no apparent limits to the statistical evidence that she regards as relevant:  “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible.  In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office.  There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes.  As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”  

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This Day in Liberal Judicial Activism—October 21



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1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit.  With a  lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status.  On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent:  “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.”  The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship:  In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants.  Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.” 

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This Day in Liberal Judicial Activism—October 20



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2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court.  Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election.  In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted. 

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This Day in Liberal Judicial Activism—October 16



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1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.  (See This Day entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.)

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This Day in Liberal Judicial Activism—October 15



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1956—So much for basing Supreme Court selections on short-term political calculations.  Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.  That decision appears to have been as unnecessary as it was foolish:  Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college.  And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure. 

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This Day in Liberal Judicial Activism—October 14



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1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration?  Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections. 

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.”  In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.” 

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable.  Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

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This Day in Liberal Judicial Activism—October 10



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2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

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This Day in Liberal Judicial Activism—October 9



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1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death.  Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town.  When he returned a couple months later, Williams had begun a new relationship.  Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her.  He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.”  On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett.  (Congratulations, by the way.)  Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains:  “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.” 

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This Day in Liberal Judicial Activism—October 8



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2006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”  According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.”  Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions….  Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….   Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.” 

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This Day in Liberal Judicial Activism—October 5



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1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.”  In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.  Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.”  Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”:  “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.”  Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures. 

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English and Robert D. Park v. Arizona) shows.  In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit:  “The Ninth Circuit had no warrant to proceed as it did.  The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.”  Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains.  First, the cause of action under which the plaintiff sued creates no remedy against a state.  Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor.  Ginsburg notes this “lapse” in Reinhardt’s reasoning:  “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision.  Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes:  “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask:  Is this conflict really necessary?”  Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

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This Day in Liberal Judicial Activism—October 2



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1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969. 

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes. 

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This Day in Liberal Judicial Activism—October 1



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2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

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This Day in Liberal Judicial Activism—September 29



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1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe recently acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

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This Day in Liberal Judicial Activism—September 26



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2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship.  (See here for documentation.)

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This Day in Liberal Judicial Activism—September 24



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1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution.  In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.…  When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit. 

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This Day in Liberal Judicial Activism—September 22



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2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.…  [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

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