Law & the Courts

This Day in Liberal Judicial Activism—December 15

(Yong Hian Lim/Dreamstime)

2015—In the face of uniform rulings of the federal courts of appeals holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, California federal district judge Dean D. Pregerson rules that Title IX’s bar on sex discrimination by schools receiving federal funds is a bar on sexual-orientation discrimination.

Pregerson doesn’t suggest that there is any reason to read Title IX differently from Title VII on this point. On the contrary, he invokes Ninth Circuit precedent holding that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards” to apply under the two statutes, and he affirmatively relies on the EEOC’s recent Title VII ruling that contradicts the uniform federal appellate rulings.

Law & the Courts

This Day in Liberal Judicial Activism—December 14

(Lucas Jackson/Reuters)

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

Law & the Courts

The Most Wonderful Time of the Year — for Religious Legal Disputes

A Christmas nativity scene outside a home in the Sleepy Hollow area of Torrance, Calif., December 15, 2015. (Lucy Nicholson/Reuters )

The holiday season has arrived, and along with it comes a cherished annual tradition — legal disputes over religious displays on public property. This year, a New Hampshire town’s refusal to allow a menorah display in a public park gained the most publicity. Similar conflicts arose in other states, including New York and Illinois. These annual fights could be avoided if governmental entities understood the relevant law.

Government representatives often claim that they can allow secular displays while banning religious displays as long as the ban applies to all faiths. This view is incorrect. If a government creates a forum in which some members of the public are allowed to speak, the freedom of speech protected by the First Amendment requires governmental entities to treat religious and secular speakers equally.

In the New Hampshire case, the town allows citizens to utilize a public park for private purposes. However, the town denied a rabbi’s request to participate in that program by displaying a menorah in Memorial Park.  The town administrator explained that one of the reasons for denying the rabbi’s application was that, “the town does not allow the display of any overtly religious symbols on town property.” Various members of the town’s Human Rights Commission indicated that they could justify refusing the rabbi if they applied their ban to all religious displays.

This argument boils down to a claim that a government entity may discriminatorily censor Jewish speech so long as it also discriminates against other religious groups. Fortunately, this position is not legally sound. Prohibiting all religious symbols while continuing to allow secular displays does not alleviate the town’s problem. It exacerbates the constitutional violation by adding more religions to the list of groups whom the town muzzles.

The town’s confusion seems to stem from conflating the First Amendment’s prohibition on the establishment of religion with its protection of the freedom of speech. The town needs to satisfy both provisions, and it cannot satisfy the Free Speech Clause no matter how evenhandedly it silences religious speakers.

Government entities may be correct in their claim that, under the Establishment Clause, if they allow one religious message, they cannot discriminate against other religious messages. However, in response to that problem, the government cannot discriminate against all religious speakers in favor of secular ones. The answer to the problem of discrimination is not more discrimination. Religious speakers, no less than secular speakers, have a First Amendment right to express themselves in public forums.

In Good News Club v. Milford Central School, the Supreme Court held that a public school violated the First Amendment’s free speech clause by opening its facilities to secular speakers and banning religious speakers. The school had adopted a policy allowing after-school events aimed at “instruction in any branch of education, learning, or the arts” as well as any uses “pertaining to the welfare of the community.” However, the school excluded religious groups from participation.

The Supreme Court concluded that the school had created a “limited public forum.” In such a forum, the school could limit speakers to its chosen subject matter, but it could not discriminate based on the speaker’s viewpoints. Without violating the Constitution, the school could limit speakers to discussing “education, learning, or the arts” and exclude groups discussing unrelated topics. But the school could not require speakers to espouse its preferred positions on the permissible subject matters. This includes favoring secular positions over religious ones.

According to the Supreme Court excluding speakers based on their religious message was an example of impressible viewpoint discrimination. The religious group intended to discuss permissible subject matter — they simply wanted to speak from a religious perspective.

The school had maintained that religious viewpoints were qualitatively different than secular ones and could therefore be excluded. The Supreme Court rejected the notion that a speaker’s religious motivation “taints” his speech or makes it less “pure.” The First Amendment did not allow the school to ban religious groups from participating in the program simply because the school preferred secular messages.

Lower courts have applied similar reasoning to menorah displays on government property. In Grossbaum v. Indianapolis-Marion County Building Authority, the Seventh Circuit Court of Appeals held that the Indianapolis-Marion County Building Authority had violated a rabbi’s free speech rights by refusing to allow him to place a menorah in a government building. The government allowed seasonable displays but prohibited religious displays. The court concluded that “the prohibition of the menorah’s message because of its religious perspective was unconstitutional under the First Amendment’s Free Speech Clause.”

The same reasoning applies in the New Hampshire menorah case as well as all of the other cases that arise each year. Allowing citizens to use public property to promote secular messages while excluding religious speakers raises serious concerns under the First Amendment’s Free Speech clause. Religious speakers may not be relegated to second-class status because of their faith.

There may be other relevant legal issues in this case. The Supreme Court’s Establishment Clause jurisprudence is a mess, and hopefully the Court will fix that problem this term. The town claims that it has public safety concerns regarding vandals attacking the menorah. Maybe that claim has merit and maybe it does not. But it is important to separate that analysis from the distinct question of whether a town may categorically ban all religious speakers in favor of secular speakers. It may not.

Governmental claims that they can prohibit the display of menorahs on public property as long as they also prohibit the display of Christmas trees or other Christian symbols are one holiday tradition that Americans ought to retire once and for all.

Law & the Courts

This Day in Liberal Judicial Activism—December 12

President Obama nominating law professor Cornelia Pillard to D.C. Circuit. ( Mark Wilson/Getty Images)

2013—Some things are most fittingly done in the dark of night. Shortly after midnight, the Senate, with 51 yea votes, confirms President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit.

The confirmation of Pillard follows in the wake of Senate Democrats’ abolition of the judicial filibuster. Even three Senate Democrats vote against the Pillard nomination, and not a single Republican votes for it.

During her confirmation process, Pillard was described by some lawyers who know her well as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

Justice Thomas to Justices Roberts and Kavanaugh: We’re Here to Do a Job

The Supreme Court has denied certiorari in Gee v. Planned Parenthood of Gulf Coast, and three justices have dissented from the denial in an opinion issued today by Justice Clarence Thomas. Justices Samuel Alito and Neil Gorsuch joined his dissent, and because four votes are required to grant certiorari, that means both Chief Justice John Roberts and Justice Brett Kavanaugh voted along with the Court’s liberal bloc not to take the case.

Although Planned Parenthood is a party, this case does not directly involve abortion. The question presented is one that has arisen, and will continue to arise, in numerous federal cases: whether Medicaid patients can bring an action to challenge a state’s determination as to who constitutes a “qualified” Medicaid provider under federal law.

Then again, this issue does indirectly involve abortion. It is being litigated because several states cut off the nation’s largest abortion provider as a state Medicaid provider after finding that Planned Parenthood affiliates had engaged in “the illegal sale of fetal organs” and “fraudulent billing practices.”

What is mystifying about the Court’s refusal to take the case are the two factors that most consistently persuade the justices to take an appeal: there is a stark split among the circuits on the question, and as Thomas put it, “This question is important and recurring.” It is difficult to imagine any of the other justices disagreeing on those points. The approximately 70 million Medicaid patients in the United States are affected by a state’s decision to remove their health care providers, and patients in different states have different rights to challenge such decisions.

Thomas also noted why the states need the Court to resolve the issue:

Under the current majority rule, a State faces the threat of a federal lawsuit—and its attendant costs and fees—whenever it changes providers of medical products or services for its Medicaid recipients. . . . Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers. . . . Moreover, allowing patients to bring these claims directly in federal court reduces the ability of States to manage Medicaid, as the suits give Medicaid providers “an end run around the administrative exhaustion requirements in [the] state’s statutory scheme.” [citations omitted]

To top things off, the failure to decide this issue has implications for clarifying the standard to determine when someone could sue under § 1983, which provides for the enforcement of rights established under federal law. On that subject, Thomas asserted bluntly, “this Court made a mess of the issue. We have acknowledged as much . . . .”

Neither did Thomas flinch from identifying why the Court was punting on this appeal: “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’” It did not matter that the case was “not about abortion rights,” or that Planned Parenthood’s ability to sue was not involved—only that of individual patients. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.”

But that appears to have been precisely what kept the Court from doing its job in this case, and it is unfortunate that neither Roberts nor Kavanaugh could bring themselves to make what in any other context would have been a slam dunk to grant certiorari.

Law & the Courts

This Day in Liberal Judicial Activism—December 9

1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Law & the Courts

This Day in Liberal Judicial Activism—December 8


1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

Politics & Policy

Creating New Judgeships

The 115th Congress is wrapping up its legislative business. What will the 116th bring?

One likelihood is a bill to expand the federal judiciary. Here’s how Congress should handle it.

Two months ago, retiring Representatives Darrell Issa (R-Calif.) and Bob Goodlatte (R-Va.) introduced H.R.6755, the Judiciary Reforms, Organization and Operational Modernization Act of 2018. Title II incorporates an earlier recommendation of the Judicial Conference to create 52 new judgeships on the U.S. District Court and convert eight temporary district court judgeships to permanent status.

It is impossible to know whether the judiciary needs more judgeships, when nearly 16 percent of the judgeships it already has are empty. We are in the longest period of triple-digit judicial vacancies since the early 1990s.

A total of 48 vacancies already exist across 16 of the 23 judicial districts slated for new judgeships under this legislation. Overall, new case filings in these 23 districts have risen 15 percent in the last five years.

The central district of California, for example, has seven vacancies today. This bill would add seven more judgeships even though new filings have risen less than 4 percent.

The southern district of California has four current vacancies, with another opening next month. This bill would add three more judgeships to a court where new cases have actually decreased over the last five years.

The middle district of Florida would get six more judgeships, even though it already has two vacancies and the number of new cases has risen just three percent since 2013.

The eastern district of Texas has three current vacancies but would still get two more judgeships even though new case filings have plunged 21 percent in the last five years.

Put it all together, and the case for needing all these new judges seems weak.

And then there’s the cost. Expanding the federal government never comes cheap. The Congressional Budget Office estimates that the proposed expansion would cost approximately $500 million per year for additional salaries, benefits, courthouse modifications, and administrative costs. CBO estimates for previous judiciary-expansion legislation and Senate Judiciary Committee hearing testimony suggest that this is a conservative estimate.

It’s common sense to obtain an accurate diagnosis before getting a prescription. In this case, that does not mean that judicial vacancies must reach absolute zero. But vacancies averaged 6 percent of the judiciary in 1989, the year before Congress last created a significant number of judgeships. The vacancy rate this year has averaged more than 16 percent. There’s just no way to reliably assess how much the judiciary should expand when it’s currently deflated.

Title III of the Issa-Goodlatte bill covered issues related to court operations such as video recording and internet streaming of federal court proceedings. The number of judges and how they must run their courtrooms, however, are fundamentally different issues and, therefore, should be addressed separately.

If similar legislation is introduced next year, Congress should put off creating more judicial vacancies through new judgeships until the president and Senate fill the 100+ current judicial vacancies.

Law & the Courts

Cleaning Up the Establishment Clause Mess

A month ago, the Supreme Court granted two certiorari petitions that seek review of a Fourth Circuit ruling that illustrates the sorry mess of the Court’s existing Establishment Clause precedents. At its conference tomorrow, it should grant review of an Eleventh Circuit ruling that does likewise. Reviewing these rulings together will give the Court a real opportunity to begin setting things right.

Let’s start with the Fourth Circuit’s ruling in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Applying the amply criticized (and awful) Lemon test—from the Court’s 1971 ruling in Lemon v. Kurtzman—a liberal Fourth Circuit majority ruled that the Establishment Clause requires removal or destruction of a 93-year-old memorial to American servicemen who died in World War I because that memorial is in the shape of a cross. Applying that same test, the very liberal Judge Roger Gregory, in dissent, ruled that the memorial does not violate the Establishment Clause.

It was twenty-five years ago, in one of his most colorful opinions, that Justice Scalia called for the Court to overrule Lemon:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under…. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart …,  and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Citations omitted.]

The granted petitions give the Court the opportunity to bury Lemon permanently.

In Kondrat’yev v. City of Pensacola, an Eleventh Circuit panel ruled that a cross that has stood in a city park without controversy for over 75 years violates the Establishment Clause. The panel determined that circuit precedent, which two of three panel members declared to be wrong, required its ruling.

Law professor (and Establishment Clause expert) Michael McConnell and the Becket Fund for Religious Liberty have filed a certiorari petition on behalf of the city of Pensacola in Kondrat’yev. As they explain in their reply brief, hearing their case in tandem with the case from the Fourth Circuit would ensure that the Court is able to clear up the Establishment Clause mess. For starters, their case tees up the threshold issue of whether mere “offended observers” have standing to bring Establishment Clause challenges. Further, it presents a different and, they argue, “a more representative” set of facts on passive religious displays, so considering it along with the Fourth Circuit case would ensure that the Court provides useful guidance to the lower courts.

Law & the Courts

This Day in Liberal Judicial Activism—December 5

1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona.

Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception ((b)(1)) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them.

In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms but instead “affords only a collective right.” Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Alex Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Andrew Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices will reject Reinhardt’s “collective right” position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

2017—Federal district judge William Alsup files in the Supreme Court his own brief disputing the federal government’s motion for a stay of his order that would have required it to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrival (“DACA”) policy. Two weeks later, in a unanimous opinion, the Court will grant the government’s motion.

Law & the Courts

Judicial Nominations Update

Thanks to Senator Jeff Flake, the Senate’s lame duck session is turning out to be a disappointment on the judicial nominations front thus far.

Last Thursday, Senate Judiciary Committee Chairman Chuck Grassley cancelled the Committee’s executive business meeting as a result of Sen. Flake’s continuing hold on judicial nominees, which Flake announced on November 14th.  Sen. Flake said that he would oppose all of President Trump’s judicial nominees until legislation to protect Special Counsel Robert Mueller from being fired was brought to a vote on the Senate Floor.  (Note that such a bill is widely viewed to be unconstitutional.)

Sen. Flake sits on the Senate Judiciary Committee and without his vote, a total of 21 judicial nominees (including six circuit court nominees and 15 district court nominees) remain stranded in the Committee, which Republicans control by a one-vote margin.  This is to say nothing of the 33 judicial nominees who are currently waiting on the Senate Floor for confirmation votes.​  Up until now, the nominations process has been running smoothly and has been an exceptional example of cooperation between the White House and GOP Senators.  It is a shame to see this process breaking down during the lame duck session.

This week, the Senate is expected to vote on the confirmation of Jonathan Kobes, President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit.  Last Thursday, the Senate narrowly voted to end debate on the Kobes nomination, with Vice President Pence breaking the tie—again because of Sen. Flake’s opposition. (Because Senator Jim Inhofe had to miss the vote, Sen. Flake did, however, agree to vote live pair, or present, to offset Inhofe’s missed “yea” vote.)

Here is a full update on the status of President Trump’s federal judicial nominations: 

Current and known future vacancies:  159

Courts of Appeals:  16

District/Specialty Courts*: 143

Pending nominees for current and known future vacancies:  73

Courts of Appeals:  13

District/Specialty Courts*:  60

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Joseph Bianco (2nd) 11/13/2018 21 No Not yet scheduled
Michael Park (2nd) 11/13/2018 21 No Not yet scheduled
Patrick Bumatay (9th) 11/13/2018 21 No Not yet scheduled
Dan Collins (9th) 11/13/2018 21 No Not yet scheduled
Ken Lee (9th) 11/13/2018 21 No Not yet scheduled
Neomi Rao (DC) 11/14/2018 20 N/A Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Eric Murphy (6th) 6/18/2018 169 10/10/2018
Chad Readler (6th) 6/18/2018 169 10/10/2018
Eric Miller (9th) 7/19/2018 138 10/24/2018
Bridget Shelton Bade (9th) 8/27/2018 99 10/24/2018
Allison Jones Rushing (4th) 8/27/2018 99 10/17/2018
Paul Matey (3rd) 4/12/2018 236 11/14/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Jonathan Kobes (8th) 6/11/2018 176 10/11/2018

 Nominees Awaiting Floor Votes: 33

Courts of Appeals:  1

District/Specialty Courts:  32

Nominees Confirmed by the Senate: 84

Supreme Court: 2

Courts of Appeals: 29

District/Specialty Courts:  53

Law & the Courts

Do ‘Acting’ Agency Heads Require the Senate’s Advice and Consent?

The question in this post’s title is the topic of a panel discussion that I’ll be taking part in this Friday with law professors Marty Lederman and Jennifer Mascott and constitutional lawyer David Rivkin. (I summarized here the Office of Legal Counsel’s recent opinion answering the question in the negative.)

The panel closes out an impressive day-long conference—“New Normals? The Trump Administration, the Courts, and Administrative Law”—that Adam White has organized in his capacity as director of the C. Boyden Gray Center for the Study of the Administrative State at Antonin Scalia Law School.

Law & the Courts

This Day in Liberal Judicial Activism—December 3

Police officers in Chicago, 2012 (Reuters phoot: Eric Thayer)

2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

Law & the Courts

This Day in Liberal Judicial Activism—December 2


2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since Justice Stevens proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.

Law & the Courts

Re: Senator Scott Falls for Farr-Fetched Smear

Here is how the print edition* of today’s Wall Street Journal explains Senator Tim Scott’s decision to vote against the nomination of Thomas Farr to a federal district judgeship:

Mr. Farr served as a legal adviser to the late Republican Sen. Jesse Helms in his 1990 re-election campaign, which was sued by the Justice Department for mailing postcards allegedly aimed at intimidating black voters. The case was ultimately settled.

In written answers to the Senate Judiciary Committee, Mr. Farr said he wasn’t aware of the mailing until after the cards were sent.

In announcing his opposition, Mr. Scott cited a 1991 Justice Department memo that called into question whether Mr. Farr told the truth about his involvement with the postcards.

During the confirmation process, he told senators he had nothing to do with them. The memo suggests he was the “primary coordinator” of those efforts, according to a congressional aide who had seen it.

If this is Senator Scott’s actual thinking, it reflects an elementary confusion between the 1984 Helms campaign and the 1990 Helms campaign. The 1991 DOJ memo states in a footnote (page 12, note 7) that “Farr was the primary coordinator of the 1984 ‘ballot security’ program.” This is entirely consistent with Farr’s testimony. In a letter to Senator Booker last December (discussed more fully in this post of mine), Farr stated that he “managed a ballot security program” in the 1984 campaign—and that “[t]here were no complaints about the legality of the 1984 mailings.”

In short, contrary to WSJ’s account of Scott’s thinking, there is nothing in the 1991 DOJ memo that “call[s] into question” Farr’s testimony that he had no involvement with the postcards that the 1990 campaign sent out.

* The online version of the article originally contained a similar passage, but after I pointed out the confusion, the reporters eliminated the error, even as they, in the version I now see, falsely credit Scott’s claim that the 1991 memo “shed additional light” on Farr’s work. As I explain here, there is nothing in the 1991 memo that wasn’t known a year ago, and that memo confirms Farr’s testimony.

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