Law & the Courts

Judicial-Nominations Update

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, U.S., June 14, 2019 (Jonathan Ernst/Reuters)

Last week, the Senate confirmed two more of President Trump’s court of appeals nominees, Danielle Hunsaker (Ninth Circuit) and William Nardini (Second Circuit). This brought the number of federal appellate court judges confirmed since Inauguration Day to 45 — yet another new record for President Trump.

Also last week, President Trump announced his intent to elevate Andrew Brasher to the Eleventh Circuit. Brasher is currently a district judge in the Middle District of Alabama who was nominated to that seat by President Trump, and confirmed by the Senate earlier this year. Brasher joins two other excellent nominees to the Eleventh Circuit who are awaiting Senate floor votes, Barbara Lagoa, and Robert Luck. If confirmed, these would be President Trump’s fourth, fifth, and sixth appointees to the Eleventh Circuit, respectively — an incredible transformation of that court.

Finally, Senate majority leader Mitch McConnell filed for cloture (to end debate) on Steven Menashi’s nomination. After months of smears, it’s high time for Mr. Menashi to receive a Senate floor vote, which could come as soon as tomorrow. Assuming he is confirmed, the Second Circuit would flip from majority Democrat-appointed active judges to majority Republican-appointed active judges.

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

Current and known future vacancies: 117

Courts of Appeals:  7

District/Specialty Courts*: 110

Pending nominees for current and known future vacancies:  50

Courts of Appeals: 6

District/Specialty Courts*:  44

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Andrew Brasher† Pending N/A N/A Not Yet Scheduled

The President announced his intent to nominate Andrew Brasher on November 6, 2019. His nomination has not yet been formally received by the Senate.

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden (5th) 6/24/19 142 7/17/19
Lawrence VanDyke (9th) 10/15/19 29 10/30/19
Patrick Bumatay (9th) 10/15/19 29 10/30/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Steven Menashi (2nd) 9/9/19 65 11/7/19
Barbara Lagoa (11th) 10/15/19


29 11/7/19
Robert Luck (11th) 10/15/19


29 11/7/19

 Nominees Awaiting Floor Votes: 29

Courts of Appeals: 3

District/Specialty Courts*: 26

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 6
  • # of pending nominees originally nominated > 400 days ago: 6
  • # of pending nominees originally nominated > 300 days ago: 11

Nominees Confirmed by the Senate during the 116th Congress: 79

Supreme Court: 0

Courts of Appeals: 15

District/Specialty Courts*: 64

Nominees Confirmed by the Senate since Inauguration Day: 164

Supreme Court: 2

Courts of Appeals: 45

District/Specialty Courts*: 117

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

Law & the Courts

This Day in Liberal Judicial Activism—November 13

Justice Stephen Breyer (Chip Somodevilla/Getty)

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

Law & the Courts

There She Goes Again

This CNN article on a new book of conversations with Justice Ruth Bader Ginsburg shows that Ginsburg continues her astounding practice of public statements that seem difficult to reconcile with the judicial duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The article quotes Ginsburg as saying that she’s “skeptically hopeful” that the Court’s abortion precedents will survive, as Roe “has pretty strong precedential weight by now.” Asserting that “good precedent [sic; hardly an apt description of Roe] built up over years should survive challenge,” she asks, “And how would the chief justice want his court to be perceived when history is told years later?”

I would hope that Chief Justice Roberts would want “his court” to be perceived as one that didn’t blink at correcting a gross constitutional error that has corrupted American politics for more than four decades and as one that wasn’t cowed by the sort of public intimidation that Ginsburg and others try to wreak.

Ginsburg goes on to describe the Roberts Court “as one of the most activist in history”—“based,” according to the article, “on instances when it has overturned legislation passed by Congress.” Jonathan Adler addressed this canard of Ginsburg’s some years ago. As he pointed out then, apart from being unsound, Ginsburg’s claim is curious as she “votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy.”

Law & the Courts

This Day in Liberal Judicial Activism—November 12

Justice Harry Blackmun.

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Law & the Courts

Call for Alito and Kavanaugh Recusal Exposes Glaring Double Standard

Supreme Court Associate Justice Brett M. Kavanaugh in Washington, D.C., December 3, 2018. (Jabin Botsford/Pool via Reuters )

As Newsweek has reported, Aaron Belkin, the executive director of the liberal activist group Take Back the Court, sent a letter last week to Justices Alito and Kavanaugh demanding that they recuse themselves from the three pending Title VII cases before the Court. The reason: They met and posed for a picture with Brian S. Brown, the president of the National Organization for Marriage (NOM), an organization that has filed an amicus brief in those cases.

Belkin’s letter makes clear his organization’s belief that anything short of recusal would be unethical and asserts, “The credibility and impartiality of the current Supreme Court is in tatters. Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes.”

Since the letter confines its ire to those two justices, let’s consider whether Belkin himself is calling balls and strikes in reaching the conclusion that those two conservative justices must disqualify themselves.

First, some context: Brown did indeed meet the two justices. It was as part of a group that took a photo on October 29. Aside from the two justices and Brown, the photo included Cardinal Gerhard Ludwig Müller, Princess Gloria von Thurn und Taxis, and an unidentified priest. Brown posted the photo to his personal Twitter account on October 29 under the caption, “Great day at US Supreme Court #SCOTUS with #CardinalMueller, Princess Gloria #ThurnundTaxis with Justices #SamuelAlito and #BrettKavanaugh.”

The photo, and the only publicly known context for the meeting, appeared in a short article by Brown — not on the NOM website, but on the website of another organization of which Brown serves as president: the International Organization for the Family (IOF). So Brown wears more than one hat, and the article is primarily about Cardinal Müller. It begins by noting details about an event featuring the cardinal that IOF co-sponsored in Washington on October 25 and then discusses several days Brown spent with the cardinal at various meetings.

The article’s only reference to the justices (in contrast to the seven references in the article to Müller) is as follows:

This past week, I had the distinct honor of accompanying Cardinal Müller and Princess Gloria at a number of important meetings in Washington. Certainly a major highlight of our meetings was the opportunity to spend time with Supreme Court Justices Samuel Alito and Brett Kavanaugh.

While that description offers no content of any conversation between Brown and the justices, the overarching context suggests a church-themed visit by the two Catholic clergymen and Princess Gloria, a prominent supporter of the Church, accompanied by Brown. Belkin does not mention the IOF, identify the others in the photo, or acknowledge any aspect of this broader context. Neither has he (or anyone) intimated that the Title VII or any other cases came up in discussion.

Second, consider the level of inconsistency it requires to maintain that a meeting such as this one, likely fleeting and superficial, demands recusal, while maintaining at the same time that numerous protracted public appearances other justices have made at institutions and/or with individuals that were signatories of briefs before the Court do not require recusal. Consider the following recent examples involving the Court’s most liberal members:

  • The Regents of the University of California are the named party challenging the Trump administration’s wind down of the DACA policy in Dept. of Homeland Security v. Regents of the Univ. of California. Regardless, Justice Kagan spoke in a colloquy at UC-Berkeley with the law school’s dean, Erwin Chemerinsky, on September 23. On top of his school’s interest in the DACA litigation, Chemerinsky had submitted an amicus brief in another pending Supreme Court case, Mathena v. Malvo. On October 21, Justice Ginsburg inaugurated a lecture series at Berkeley Law School.
  • On October 9, Justice Kagan participated in a colloquy at a DC synagogue with Seth Waxman, who had filed an amicus brief in the same three Title VII cases as NOM.
  • On October 19, Justice Sotomayor was interviewed by Heather Gerken, the dean of Yale Law School, at a university alumni event on campus. Earlier that month, Yale University had submitted an amicus brief in the DACA case.
  • On October 21, Justice Kagan spoke at a colloquy with law professor Robert Stein at the University of Minnesota. In September, the Regents of the University of Minnesota had filed a cert petition, which is still pending, in a sovereign immunity case, Regents of the University of Minnesota v. LSI Corp.
  • On October 22, a week before the Alito and Kavanaugh meeting, Justice Kagan spoke at the law school of the University of Colorado, which had signed an amicus brief in the DACA case.
  • On October 30, the day after Brown met with Alito and Kavanaugh, Justice Ginsburg spoke at Georgetown Law School, in a lecture series bearing her name, on a panel with Bill and Hillary Clinton. Georgetown University had submitted another amicus brief (the one signed by Yale) in the DACA case.

These are just a few examples taken merely from the last seven weeks of justices involving themselves very publicly with events in which brief signers played a central role. Who knows what additional private conversations accompanied these appearances, or how many people attending such events whose organizations had signed amicus briefs posed for pictures with the justices?

Having just employed a glaring double standard, Take Back the Court faces two options if it wishes to retain an ounce of credibility. It can extend its recusal demands to Justices Ginsburg, Sotomayor, and Kagan in the above-referenced cases. Or it can take back its one-sided demand laughably confined to conservative justices.

Law & the Courts

This Day in Liberal Judicial Activism—November 11

Judge Stephen Reinhardt

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.

Law & the Courts

This Day in Liberal Judicial Activism—November 10


1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.  

2016—Oregon federal district judge Ann L. Aiken submits a strong entry for the most pervasively lunatic ruling ever. In Juliana v. United States, she denies the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.

Law & the Courts

This Day in Liberal Judicial Activism—November 9

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing.

Law & the Courts

Judicial Council’s Public Reprimand of District Judge Carlos Murguia

I somehow missed the news a month or so ago that the Judicial Council of the Tenth Circuit had used its “most severe sanction”—a public reprimand—against federal district judge Carlos Murguia of the District of Kansas for three types of judicial misconduct: “(1) sexually harassing Judiciary employees; (2) engaging in an extramarital sexual relationship with an individual who had been convicted of felonies in state court and was then on probation; and (3) demonstrating habitual tardiness for court engagements.” Murguia was appointed a federal judge by President Clinton in 1999. (He is the brother of Ninth Circuit judge Mary Murguia.)

On the first category of misconduct:

Judge Murguia gave preferential treatment and unwanted attention to female employees of the Judiciary in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night. All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge. One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.

On the second:

Judge Murguia engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions. A judge’s sexual affair does not constitute misconduct in all cases; whether a judge’s affair, even with a convicted felon, is misconduct depends on the circumstances surrounding the relationship. But the Special Committee found, and the Council agrees, that Judge Murguia placed himself in such a compromised position that he made himself susceptible to extortion.

On the third:

Judge Murguia has been habitually late for court proceedings and meetings for years. The Special Committee found general agreement among witnesses that Judge Murguia was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms. A repeated cause of this tardiness was Judge Murguia’s regularly scheduled lunchtime basketball games on days when he had hearings or trials, leaving the jury and others waiting for him to return. Judge Murguia was counseled about his tardiness fairly early in his federal judicial career, but his conduct persisted nonetheless.


Judge Murguia was less than candid with the Special Committee. When initially confronted with the allegations, he did not fully disclose the extent of his misconduct. He tended to admit to allegations only when confronted with supporting documentary evidence. His apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.

Law & the Courts

Thank You, Harry Reid!

In this week in which the White House has celebrated President Trump’s impressive record of achievement on judicial appointments, I’d like to pay tribute to the unsung hero who did more than anyone to make this all possible: former Senate Democrat leader Harry Reid.

Back in November 2013 when he was Senate majority leader, Reid pushed his fellow Democrats to abolish the filibuster (the 60-vote cloture threshold) for lower-court nominations. Never mind that Senate Republicans had defeated a grand total of seven cloture motions on President Obama’s nominees, while Reid himself had voted against cloture at least 25 times on 13 different nominees of George W. Bush.

As I explained back then, I welcomed the abolition of the judicial filibuster and its long-term consequences for the judicial-confirmation process. Above all, the abolition of the lower-court filibuster created the only promising scenario for real improvement in the courts: confirmation by a Senate Republican majority of the strong nominees of a Republican president. I further pointed out that Reid’s action paved the way for the abolition of the filibuster on Supreme Court nominees.

Imagine how very different things would have been if Reid hadn’t abolished the lower-court filibuster. It’s farfetched to think that Senate Republicans would have done so during Trump’s presidency. Recall that quite a few Senate Republicans were eager to restore the judicial filibuster after they regained control of the Senate in the 2014 elections. Recall further that back in 2005, when there were 55 Republican senators and when Republicans had for two years been unable to overcome the Democrats’ unprecedented campaign of filibusters, the Republican effort to abolish the filibuster failed. John McCain, Susan Collins, Lindsey Graham, and others instead struck the Gang of 14 deal. With the 51 senators in the Republican contingent in 2017-2018 and even with the 53 now, I don’t see how the votes would be there.

The abolition of the filibuster also meant that outstanding candidates, knowing that the process would likely be short and successful, would offer themselves up for nomination to the courts of appeals.

Without Reid’s action, I wonder whether President Trump would have a dozen federal appellate appointees by now, and the overall caliber of those nominees whom Democrats would allow to be confirmed would surely have been much lower.

More importantly, Reid’s action also made possible the Supreme Court confirmations of Neil Gorsuch and Brett Kavanaugh. By filibustering Gorsuch—a stellar candidate with strong support from liberals in the legal community—Senate Democrats signaled to senators like McCain that they wouldn’t let any judicial conservative get confirmed to the Supreme Court. They gave him and others no choice but to extend Reid’s action to Supreme Court nominations, and there is no way that they would have succeeded in doing so if Reid hadn’t already cleared the path. Perhaps Gorsuch would have been able to overcome the Democratic filibuster against him. But there is obviously no way that Kavanaugh would have been able to get 60 votes for cloture.

So, once again, a huge shout-out of thanks to Harry Reid!

Law & the Courts

District-Court Ruling Against HHS Conscience Rule

On Wednesday, federal district judge Paul A. Engelmayer (of the Southern District of New York) issued a 147-page opinion ordering that the Department of Health and Human Services’ May 2019 rule on “Protecting Statutory Conscience Rights in Health Care” be vacated in its entirety. I’m still wading through the opinion, but figured I would offer some preliminary comments.

I’ll begin with a high-level summary.

As HHS explains, its Conscience Rule “revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds.” Those laws (in Engelmayer’s words) “principally, although not exclusively, address objections to abortion, sterilization, and assisted suicide, in addition to counseling and referrals related to these services.”

Plaintiffs (including 19 states and abortion providers) argued that the Conscience Rule was issued in violation of the Administrative Procedure Act and is unconstitutional. Engelmayer devotes the bulk of his opinion (pp. 39-115) to the APA claims. He opines that HHS, in issuing the Conscience Rule, exceeded its statutory authority (pp. 39-69), acted contrary to law (pp. 69-78), was arbitrary and capricious (pp. 78-109), and adopted a definition of discrimination that “was not a logical outgrowth” of its notice of proposed rulemaking (pp. 109-115). On the constitutional claims, Engelmayer concludes that the provision in the Conscience Rule that authorizes HHS to withhold or terminate all of a recipient’s funding as a penalty for noncompliance with the Rule violates the separation of powers (pp. 115-117) and the Spending Clause (pp. 117-134).

With the caveat that I do not claim to be expert in the nitty gritty of administrative law, I find myself puzzled by much of Engelmayer’s opinion. A few examples:

1. In summarizing the statutory conscience protections, Engelmayer repeatedly emphasizes that various of the statutes do not define key terms (such as “discriminate”) and do not “expressly” grant rulemaking authority to HHS. (See, e.g., pp. 8, 12.) I would have thought that these facts together strongly suggest an implied delegation of rulemaking authority to HHS. How, after all, can HHS administer these statutes without defining those key terms? But Engelmayer adopts a very stingy view of implied delegation (pp. 60-64).

2. Engelmayer finds it especially troublesome that the Conscience Rule doesn’t follow the “reasonable accommodation/undue hardship framework” that applies to employers generally under Title VII of the Civil Rights Act of 1964. Indeed, his lead ground for concluding that the Conscience Rule is “contrary to law” is that it supposedly “conflicts with Title VII.” Set aside that four justices have recently questioned the soundness of that Title VII framework. How is there an actual conflict between the Conscience Rule and Title VII? Doesn’t an entity that complies with the former necessarily comply with the latter? And what reason is there to assume that Congress wouldn’t allow greater protections of conscience rights for employees of entities receiving federal funds and carrying out federal programs than Title VII provides?

3. Engelmayer’s everything-and-the-kitchen-sink approach might be seen by some as thoroughness, but his microscopic scrutiny of HHS does not strike me as the usual judicial approach to review of administrative action. And his mischaracterization of Roe v. Wade as having “invalidated prohibitions on abortion in the first trimester”—the sort of claim that some abortion advocates make to obscure the breadth of the Roe holding—makes me wonder how much he can be trusted in his citations of other authorities. (Somehow I think that if Engelmayer were reviewing a prohibition on abortion in the second trimester, he would recognize that Roe forbids that.)

4. Engelmayer’s “separation of powers” holding sounds momentous, but it turns out to be nothing more than a recasting of his APA holding. In his view, any agency action that exceeds the agency’s authority also “is inconsistent with the separation of powers.”

Law & the Courts

Ninth Circuit Dissent: Don’t Gut the Ministerial Exception

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

In two recent cases, the Ninth Circuit delivered a blow to the “ministerial exception” enjoyed by religious institutions under the First Amendment and recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012). That case involved a teacher at a Lutheran school whose duties included teaching religion class and leading her students in prayer, and who challenged her dismissal by the church under the Americans with Disabilities Act (ADA). The Court unanimously rejected her claim, holding that the ministerial exception precludes the application of employment discrimination laws to questions involving “the employment relationship between a religious institution and its ministers.” Additionally, the government is not permitted to “contradict a church’s determination of who can act as its ministers.”

Two very similar cases in the Ninth Circuit involving teachers who sued Catholic schools after their contracts were not renewed reached the opposite outcome. Both Biel v. St. James School and Morrissey-Berru v. Our Lady of Guadalupe School involved fifth-grade teachers at Catholic elementary schools whose responsibilities included teaching religious instruction, leading their students in daily prayer, and whose employment contracts required them to incorporate Catholic teachings into their work. Biel, who sued under the ADA, was required to teach religion at least 200 minutes per week and to escort her students to school-wide monthly Mass. Morrissey-Berru, who sued under the Age Discrimination in Employment Act, taught a course on the history of the Catholic Church, was in charge of liturgy planning for a monthly Mass, and directed and produced a student performance during the school’s annual Easter celebration.

Two panels of the Ninth Circuit reversed district court opinions granting the schools summary judgment in the respective cases, concluding that under the “totality of the circumstances,” the teachers did not qualify for the ministerial exception. The Ninth Circuit denied a petition for an en banc rehearing in Biel, and nine judges dissented in an opinion written by Judge Ryan Nelson.

The court, Nelson observed, did not hold Biel to be a “minister” because her employment circumstances “were not a carbon copy of the plaintiff’s circumstances” in Hosanna-Tabor, a conclusion that clearly “departed from the plain direction of the Supreme Court.” Consider the similarity of the job of the teacher in the Supreme Court case: she had taught a variety of classes to kindergarten and fourth grade students, including religion class four days a week; led the students in daily prayer and devotional exercises; and attended a weekly school-wide chapel service, which she led herself about twice a year. She did have a distinctive formal title —“ called teacher” — that was lacking in the Catholic school context.

Justice Alito had noted in his Hosanna-Tabor concurrence, which was joined by Justice Kagan, the importance of function over nomenclature: The term “minister,” commonly used in Protestant denominations, “is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.” But the Ninth Circuit did not seem to grasp this, treating Hosanna-Tabor as if it set a legal floor for the exception to apply, which it did not. The appeals court “diverged from the function-focused approach” taken by other circuits and a number of state supreme courts and focused on other considerations, Nelson charged, “all of which relate to Biel’s title.”

The dissent extended its rebuke of the Ninth Circuit to Morrissey-Berru, which presented an “even stronger” case to apply the ministerial exception. “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally,” Nelson lamented. The court would have done better to follow Alito’s explicit extension of the ministerial exception “to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Nelson had been nominated to the Ninth Circuit by President Trump, as had Judges Mark Bennett, Bridget Bade, and Daniel Collins, who joined his dissent along with five judges who had been appointed by George W. Bush. The Becket Fund, which represents the Catholic schools in both cases, has filed a cert petition to the Supreme Court.

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Seventh Circuit Judges on Pre-Enforcement Injunctions Against Abortion Laws

A law enacted in Indiana in 2017 provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.” In August, a divided panel of the Seventh Circuit affirmed a preliminary injunction that prevented that provision from ever taking effect. In dissent, Judge Kanne objected that because the law was enjoined before it had ever been enforced, there was no evidence that it would operate as an undue burden.

Last week, by a vote of 6 to 5, the Seventh Circuit declined to rehear the case en banc. In his brief dissent (joined by Judges Flaum, Barrett, Brennan, and Scudder), Judge Kanne stated:

This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.

Judge Easterbrook, joined by Judge Sykes, concurred in the denial of rehearing en banc (and either of them can therefore be regarded as providing the decisive vote against rehearing).* Essentially endorsing Kanne’s panel dissent, Easterbrook argued that pre-enforcement injunctions should be strongly disfavored:

Unless a baleful outcome is either highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow the states that much leeway. Talk of the states as laboratories is hollow if federal courts enjoin experiments before the results are in.

At the same time, Easterbrook explained why he opposed en banc rehearing. One big part of Easterbrook’s argument is that the “undue burden” standard set forth in Planned Parenthood v. Casey has no meaningful content: it “does not call on a court of appeals to interpret a text … [n]or does it produce a result through interpretation of the Supreme Court’s opinions”:

Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted. Three circuit judges already have guessed how that inquiry would come out; they did not agree. The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.

Alas, Easterbrook’s vote to deny en banc rehearing makes it much less likely that the Supreme Court will decide to address “this dispute” (though, as he points out, it is possible that the Court’s ruling in the pending case of June Medical Services v. Gee will provide guidance on when pre-enforcement injunctive relief is proper). I wish very much that he had instead voted to grant en banc rehearing and had ultimately set forth his presumption against pre-enforcement relief, and his criticism of the undue-burden standard, in an en banc majority opinion that vacated the preliminary injunction against the Indiana law.

* One Trump appointee, Judge St. Eve, was also part of the majority denying en banc review.

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This Day in Liberal Judicial Activism—November 7

(Photo Illustration: NRO)

2000—So much for respecting a capital inmate’s final wishes.

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.

Law & the Courts

Michigan’s Feeble ‘Emergency’ Motion to Stay Preliminary Injunction

On September 26, federal judge Robert J. Jonker entered a preliminary injunction that enables St. Vincent Catholic Charities to continue providing foster and adoptive services to children in Michigan’s child-welfare system. Jonker’s opinion explains that the Michigan legislature enacted legislation in 2015 that allows St. Vincent to decline to decide whether to endorse an unmarried or same-sex couple as foster or adoptive parents and instead to refer such cases to other agencies for decision. But after running an election campaign in which she attacked the 2015 law and condemned St. Vincent as “hate mongers,” new Michigan attorney general Dana Nessel “put St. Vincent in the position of either giving up its belief [about marriage] or giving up its contract with the State.” Jonker concluded that Nessel’s position amounted to “religious targeting” of St. Vincent and could not survive strict scrutiny.

The state of Michigan waited a full two weeks before asking Jonker to stay his injunction pending appeal. And one week after Jonker denied its request, it filed an “emergency motion” with the Sixth Circuit asking it to stay Jonker’s injunction pending appeal.

It would be very strange if the Sixth Circuit were to grant Michigan’s motion.

The fact that Michigan waited two weeks to ask Jonker for a stay belies the notion that it faces any genuine emergency. And nothing in its motion meaningfully suggests otherwise.

The preliminary injunction enables St. Vincent to continue providing the services that it has provided for years, and it preserves (in Jonker’s words) “a carefully balanced and established practice that ensures non-discrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage.” As the Becket Fund argues on behalf of St. Vincent, it is St. Vincent, and “the families and children who rely on St. Vincent,” that would face irreparable harm if the injunction were blocked.

Thus, even without getting to the underlying merits (which I believe also strongly favor the injunction), the Sixth Circuit has compelling reasons to deny Michigan’s motion.

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