Law & the Courts

In Praise of the Honorable D. Brooks Smith

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Pennsylvania attorney Matthew Stiegler has posted a lengthy Twitter thread praising Chief Judge D. Brooks Smith of the U.S. Court of Appeals for the Third Circuit for his dedication to the rule of law and, in particular, his handling of recent (and ongoing) election-related litigation.

Judge Smith was nominated to the Third Circuit by President George W. Bush in 2002. As Stiegler notes, Smith’s nomination was opposed by some progressive activist groups (most notably, Community Rights Counsel, precursor to the Constitutional Accountability Center, and some environmental groups), and the NYT editorialized against his confirmation.

As Stiegler details, Smith’s liberal critics profoundly misjudged him. The attacks were unfair and ungrounded, and failed to account for Smith’s profound commitment to judicial independence, impartiality, and collegiality on the bench. As Stiegler notes, his “fellow progressives” failed to appreciate that Smith has “an unshakeable commitment to judicial independence and the rule of law” — and has exhibited that commitment on both the U.S. District Court and Third Circuit Court of Appeals, most recently (but hardly exclusively) in his election-law decisions.

Law & the Courts

This Day in Liberal Judicial Activism—November 29

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(Michał Chodyra/Getty Images)

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

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

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

2016—Having earlier found North Carolina’s legislative districts to be the product of an unconstitutional racial gerrymander, a three-judge panel in the Middle District of North Carolina (in Covington v. North Carolina) orders the state to hold a special election in the fall of 2017, smack in the middle of the two-year term of the legislators elected in November 2016. In addition to cutting the legislators’ terms in half, the court order would also suspend the candidate-residency requirements in the state constitution for legislative candidates in the special election.

Six weeks later, the Supreme Court will block the panel’s order, and in June 2017, in a summary per curiam ruling, the Court will vacate the order. The Court chastises the panel for “address[ing] the balance of equities in only the most cursory fashion,” and it says that it lacks “confidence that the court adequately grappled with the interests on both sides of the remedial question before us.”

Law & the Courts

This Day in Liberal Judicial Activism—November 28

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Retired Supreme Court Justice John Paul Stevens departs the funeral of Supreme Court Associate Justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington, February 20, 2016. (Carlos Barria/Reuters)

1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay of mine explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law.

2016—In what Fourth Amendment expert Orin Kerr will critique as yet another “very unpersuasive” opinion, magistrate judge James Orenstein rejects the government’s application for a search warrant on the spurious ground that the target of the search had consented to the search. Orenstein, Kerr observes, is “a leader in the Magistrate’s Revolt, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases.”

Law & the Courts

This Day in Liberal Judicial Activism—November 26

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The First Thanksgiving at Plymouth, by Jennie A. Brownscombe (1914) (Wikimedia Commons)

2020—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

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

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

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

Law & the Courts

Durbin v. Whitehouse

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California Senator Dianne Feinstein has announced she will no longer serve as the ranking Democrat on the Senate Judiciary Committee, amid reports some Democrats were upset she was insufficiently aggressive during the Barrett confirmation hearings. Illinois Senator Dick Durbin is next in line — and reportedly wants the job — but progressives apparently want someone else, and the committee’s chief conspiracist (Senator Sheldon Whitehouse) would also like the position. This sets up what could be an interesting power struggle within the Senate Democratic caucus.

Law & the Courts

This Day in Liberal Judicial Activism—November 25

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2013—In a wild administrative ruling (in In re Fonberg), the three-judge Judicial Council of the Ninth Circuit Executive Committee concludes that an unmarried court employee with a same-sex domestic partner is entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.

Law & the Courts

More Cert Bait from Ninth Circuit Judge Fletcher

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Today’s order from the Ninth Circuit in Vega-Anguiano v. Barr has plenty of features that scream for Supreme Court certiorari review: (1) a majority opinion by Judge William Fletcher, (2) over a dissent by Judge Consuelo Callahan, (3) in an immigration case, involving (4) an alien who was ordered removed in 1998, (5) but who illegally re-entered the United States weeks after he was finally removed in 2008, (6) who, after being convicted of a felony in 2014, had his removal order reinstated, and (7) who now challenges the basis for the 1998 removal order, all along with (8) a twelve-judge dissent from the denial of rehearing en banc, which (9) points out that Fletcher’s ruling conflicts with decisions by all eight other federal courts of appeals that have addressed the question.

On the other hand, the alien’s 1991 conviction for cocaine possession on which his 1998 removal order was predicated was expunged in 1999.

Here are excerpts from Judge Mark Bennett’s dissent from denial of rehearing en banc (again, joined by eleven other judges):

This case turns on a straightforward statute. So plain is the statutory text that all eight other circuits that have interpreted the statute reached the same conclusion.…

Under the Immigration and Nationality Act, when an alien is ordered removed and seeks to challenge the removal, “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1) (emphasis added). If a removed alien illegally reenters the country, the government may opt for an expedited removal process by issuing a reinstatement order that gives effect to the original order of removal. See 8 U.S.C. § 1231(a)(5).

The question is the following: When there is both an original order of removal and a new reinstatement order, what does “order of removal” in § 1252(b)(1) mean? Our sister circuits think “order of removal” means “order of removal.” The majority, apparently unhappy with the statute Congress wrote, rewrites “order of removal” as “reinstatement order.” The opinion then works backwards to rationalize the rewrite through a series of inaccurate and internally inconsistent statements. No wonder our court is on the solitary side of an eight-to-one circuit split.…

The majority’s decision will lead to unjust outcomes and perverse incentives. In Morales-Izquierdo, an en banc panel of our court warned that “an alien who respects our laws and remains abroad after he has been removed should have no fewer opportunities to challenge his removal order than one who unlawfully reenters the country despite our government’s concerted efforts to keep him out.” The majority’s decision turns this obvious principle on its head and rewards those who break the law. We routinely deny petitions for review that do not meet § 1252(b)(1)’s thirty-day deadline. The majority’s decision waives that timeliness requirement and gives the removed alien a second bite at the apple, provided that he illegally reenters the country and is subject to a reinstatement order. The alien with the same claim who does not illegally reenter, however, gets no such chance.

The facts here add another layer of perversity. Vega-Anguiano has already come before our court: In 2014, he sought judicial review of the BIA’s denial of his untimely motion to reopen. He requested equitable tolling of the deadline for a motion to reopen, explaining that his “1991 simple possession was expunged pursuant to California’s rehabilitative statute,” and arguing that the “conviction may not form the basis for any finding of inadmissibility or deportability.” A prior panel of our court affirmed the BIA’s denial of the motion to reopen, explaining that it was filed fourteen years too late and that Vega-Anguiano failed to establish that he acted with due diligence.

Under the majority’s rule, due diligence is not required. Vega-Anguiano can essentially reverse the prior panel’s decision and get a third bite at the apple, only because of his illegal reentry.

(I have omitted or simplified some citations.)

Law & the Courts

En Banc Fifth Circuit: Medicaid Patients Can’t Challenge State’s Determination that Provider Is Not Qualified

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In an important decision yesterday (in Planned Parenthood v. Kauffman), the en banc Fifth Circuit ruled by a vote of 11 to 5 that Medicaid patients do not have a statutory right to challenge a state’s determination that a health-care provider is not “qualified” to provide Medicaid services.

The ruling is a big victory for the state of Texas in its effort to hold Planned Parenthood accountable for unethically altering its abortion procedures in order to provide fetal organs and tissue to researchers. Texas terminated its Medicaid provider agreements with five Planned Parenthood affiliates after the Center for Medical Progress released video recordings of Planned Parenthood officers negotiating to provide fetal body parts.

I’m still in the process of reading through the 100+ pages of opinions. For now, I’ll provide a high-level overview of the ruling and of the competing opinions.

1. Let’s start with Fifth Circuit chief judge Priscilla Owen’s majority opinion, joined in whole by Judges Jolly, Jones, Smith, Elrod, Southwick, Willett, Ho, Duncan, and Engelhardt and in large part by Judge Haynes. (Judge Oldham was recused, and Judge Wilson, who joined the court after the case was argued, also did not take part.)

Owen offers two independent grounds for her conclusion that 42 U.S.C. § 1396a(a)(23) does not give Medicaid patients a right to challenge a State’s determination that a health care provider is not “qualified” to provide Medicaid services. First, the Supreme Court’s 1980 decision in O’Bannon v. Town Court Nursing Center forecloses the existence of such a right. (Pp. 10-14.) Second, the text of the provision does not “unambiguously” grant such a right. (Pp. 14-23.)

Owen acknowledges that there is a split among the federal appellate courts on this question, with the Fifth Circuit joining the Eighth Circuit on one side of the split, and with five circuits on the other side. She addresses the flaws she sees in the opposing rulings. (Pp. 23-30.)

2. In a concurring opinion, Judge Jennifer Walker Elrod, joined by six of her colleagues (Jones, Smith, Willett, Ho, Duncan, and Engelhardt) elaborates how two of the Supreme Court’s Spending Clause opinions also foreclose a private right of Medicaid patients to contest a state’s determination that a provider is not qualified. (Pp. 35-46.) She also offers an additional reason for vacating the district court’s injunction: even if such a right existed, the plaintiffs’ claim would fail on the merits. (Pp. 46-58.)

3. Judge Stephen Higginson wrote an opinion concurring in part and dissenting in part, which was joined by Judges Stewart and Costa and partially joined by Judges Dennis and Graves. Higginson disagrees with the majority on the central question of the Medicaid patients’ right to sue, but he would hold that they may not challenge the state’s termination of a provider on grounds of professional competency (including ethics). (Dennis and Graves reject this latter part.) He draws a line, however, between the one Planned Parenthood affiliate that was directly involved in the conduct challenged as unethical and the other affiliates. (Pp. 65-80.)

4. Judge Dennis, joined by Judge Graves, dissents in full. (Pp. 81-105.) (Owen (pp. 33-34), Elrod (pp. 58-60) and Judge Ho, in a brief separate concurrence (joined by Judge Duncan, pp. 61-64), all take issue with Dennis’s strange claim that stare decisis considerations somehow counsel against the en banc court’s reversal of a panel holding.)

Law & the Courts

This Day in Liberal Judicial Activism—November 24

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Planned Parenthood logo at a clinic in Boston, Mass. (Reuters photo: Dominick Reuter)

2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health. In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

Law & the Courts

Sixth Circuit Order on Tennessee Law Is Good Sign for En Banc Decision on Ohio Abortion Law

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A provision of Tennessee law enacted earlier this year bars any person from performing an abortion if that person knows that the mother is seeking the abortion because of the sex or race of her unborn child or because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in her unborn child. In an order on Friday (in Memphis Center for Reproductive Health v. Slatery), a divided panel of the Sixth Circuit granted the state of Tennessee’s motion for a stay pending appeal of a district-court order that blocked Tennessee from enforcing this provision.

The en banc Sixth Circuit (in Preterm Cleveland v. Himes) is currently deciding the fate of an Ohio law that similarly bars a person from performing an abortion if that person knows that the mother is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome. The case was argued in March, so a ruling could come any time.

Judge Amul Thapar was part of the panel majority in the Tennessee case. As a judge in regular active service, he is also taking part in the en banc decision on the Ohio law. (The other judge in the Tennessee majority is a senior judge.) The fact that the panel majority determined that Tennessee is likely to prevail in its case is a strong signal that the en banc Sixth Circuit will rule in favor of the Ohio law.

Law & the Courts

Ninth Circuit Panel’s Dubious Expansion of Bivens Damages Remedy

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In 1971, the Supreme Court held in Bivens v. Six Unknown Federal Narcotics Agents that in the absence of statutory authorization it would nonetheless enforce a damages remedy against federal officers who violated a person’s Fourth Amendment rights. But, as Justice Kennedy discusses in his majority opinion in 2017 in Ziglar v. Abbasi, outside “the search-and-seizure context in which [Bivens] arose,” the Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”

In a unanimous opinion Friday by Judge William Fletcher (in Boule v. Egbert), a Ninth Circuit panel ruled that a person who alleged that a border patrol agent violated his rights under the First and Fourth Amendments could pursue a Bivens damages remedy under both claims. The panel’s application of Bivens to the First Amendment context strikes me as especially dubious. (The plaintiff’s particular claim is that after he complained to the agent’s superiors about an incident, the agent retaliated by asking the IRS to look into the plaintiff’s tax status.)

1. For starters, Judge Fletcher plays word games with a key passage from Ziglar in order to distort it to suggest that the Supreme Court indicated that Bivens is broadly available in cases involving law enforcement. Here is what Justice Kennedy actually wrote (my underlining):

[I]t must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.

And here’s how Fletcher mischaracterizes that passage (my underlining and boldface):

Although the Supreme Court has made clear that “expanding the Bivens remedy is now a disfavored judicial activity,” a Bivens remedy is still available in appropriate cases and there are “powerful reasons” to retain it in its “common and recurrent sphere of law enforcement.”

In brief, when Kennedy refers to “this common and recurrent sphere of law enforcement,” he is clearly referring to “the search-and-seizure context in which [Bivens] arose.” But Fletcher, avoiding any mention of the search-and-seizure context, substitutes the nonrestrictive its in place of the restrictive this and thus pretends that Kennedy’s embrace of Bivens extends to the broad “sphere of law enforcement.”

2. Fletcher states that the Ninth Circuit has “previously recognized a Bivens claim in the First Amendment context” but observes that “the Supreme Court has not yet done so.” Both halves of this statement are curious.

The Ninth Circuit precedent that Fletcher cites is from 1986. It’s highly doubtful that that precedent remains sound after Ziglar, but Fletcher never even raises that question. Worse, his statement that the Court “has not yet done so”—that is, not yet “recognized a Bivens claim in the First Amendment context”—gives the impression that the Court might be on the verge of doing so, when the entire thrust of Ziglar is against further expansions of Bivens. In Ziglar Kennedy quotes a passage from a 2001 opinion that states that the Court has “consistently refused to extend Bivens to any new context or new category of defendants” and adds approvingly: “Indeed, the Court has refused to do so for the past 30 years.” Kennedy proceeds to cite lots of cases in which the Court refused to extend Bivens, and his very first example is “a First Amendment suit against a federal employer.”

Law & the Courts

Judicial-Nominations Update

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(simpson33/iStock/Getty Images Plus)

The Senate has recessed for Thanksgiving break, but not before processing a number of judicial nominees. Five new trial judges were confirmed last week, four to various district courts and one to the Court of International Trade.

The Senate Judiciary Committee for its part held hearings on Wednesday for five nominees, including Thomas L. Kirsch II, who has been nominated to the Seventh Circuit seat vacated by Justice Amy Coney Barrett. Three other nominees have cloture motions pending on the Senate floor, so at least that many should be confirmed after the Senate returns next week.

Below is a full update on the status of President Trump’s judicial nominations.

Current and known future vacancies: 62

Supreme Court: 0

Courts of Appeals:  3

District/Specialty Courts*: 59

Pending nominees for current and known future vacancies: 36

Courts of Appeals: 1

District/Specialty Courts*: 35

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Raúl M. Arias-Marxuach (1st)† Pending N/A N/A Not Yet Scheduled

†The president announced his intent to nominate Raúl M. Arias-Marxuach on November 13, 2020. His nomination has not yet been formally received by the Senate and is thus not included in the pending-nominee count.

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Thomas L. Kirsch II (7th) 11/16/20 7 11/18/20

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

Nominees Awaiting Floor Votes: 9

Courts of Appeals: 0

District/Specialty Courts*: 9

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 2
  • # of pending nominees originally nominated > 400 days ago: 9
  • # of pending nominees originally nominated > 300 days ago: 16

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 149

Supreme Court: 1

Courts of Appeals: 23

District/Specialty Courts*: 125

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day: 234

Supreme Court: 3

Courts of Appeals: 53

District/Specialty Courts*: 178

* Includes the Court of Federal Claims, Territorial Courts, and the International Trade Courts

All Article III Nominees Confirmed by the Senate since Inauguration Day: 227

Supreme Court: 3

Courts of Appeals: 53

District/International Trade Courts: 171

Law & the Courts

This Day in Liberal Judicial Activism—November 23

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(Kuzma/Dreamstime)

1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”

Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).

A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”

Law & the Courts

This Day in Liberal Judicial Activism—November 22

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Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

2006—It’s monkey business as usual at the Ninth Circuit. A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable. Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

Law & the Courts

This Day in Liberal Judicial Activism—November 21

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Then-Senate Majority Leader Harry Reid in 2014. (Reuters photo: Joshua Roberts)

1997—The Alaska supreme court rules (in Valley Hospital Association v. Mat-Su Coalition for Choice) that a hospital operated by a nonprofit corporation is a “quasi-public institution” and that the state constitution’s “right of the people to privacy” requires that the hospital allow elective abortions to be performed on its premises.

2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.

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