Law & the Courts

Judicial-Nominations Update

The second session of the 116th Congress notably began with President Trump’s impeachment trial consuming the Senate’s attention, but as soon as it was over, Majority Leader Mitch McConnell returned to the business of confirming judges. Within a half hour of the Senate’s adjournment as a court of impeachment on February 5, McConnell filed cloture on five judicial nominations, including the elevation of district court judge Andrew Brasher to the Eleventh Circuit. All five nominees were confirmed last week, and McConnell declared, picking up a theme he previously touted, “My motto for the year is ‘leave no vacancy behind.’”

The Senate is in recess this week, but as detailed below, the total number of judges confirmed since inauguration day is approaching the 200 mark. Last week’s confirmations brought the total to 197. On Thursday, McConnell filed cloture on numbers 198 and 199, two district court judges for the Virgin Islands and Puerto Rico respectively.

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

Current and known future vacancies: 87

Courts of Appeals:  1

District/Specialty Courts*: 86

Pending nominees for current and known future vacancies:  39

Courts of Appeals: 0

District/Specialty Courts*:  39

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
None

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
None

 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: 6

Courts of Appeals: 0

District/Specialty Courts*: 6

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 3
  • # of pending nominees originally nominated > 300 days ago: 3

Nominees Confirmed by the Senate during the 116th Congress: 112

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 91

Nominees Confirmed by the Senate since Inauguration Day: 197

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 144

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

Law & the Courts

Ending the Administrative State Is an Uphill and Necessary Battle for a Free Nation

(Larry Downing/Reuters)

James Madison defined tyranny as the “accumulation of all powers, legislative, executive, and judiciary, in the same hands.” Yet, according to many prominent progressives, this venerable principle that inspired our constitutional structure is an existential threat to the modern architecture of the federal government. Take, for instance, a New Republic article, which sees Madison’s remedy for tyranny as an evil plot to sink the entire federal bureaucracy.

In “The Plot to Level the Administrative State,” New Republic writer Matt Ford warns that some Supreme Court justices want to revive the nondelegation doctrine — a fancy term for the idea that Congress can’t punt its lawmaking power to a different branch of government. Many on the left fret that this revival poses an existential threat to the modern trend of bureaucratic rule. I hope they’re right.

This wicked plot began in 1787. That year, our Founders built a constitutional structure unique in history — a binding document that separated government functions into three distinct spheres: legislative, executive, and judicial.

Article I vests the legislative power in Congress and sets rules about how lawmaking happens. It splits the lawmaking body into two houses, determines how the lawmakers are selected, and requires that legislation pass both houses and be presented for the president’s approval. Other rules abound, such as requirements that tax bills begin in the House and that no legislator can be appointed to a federal civil office during their tenure.

These rules rein in the power to pass laws that bind the people. If Congress could abdicate such authority to the executive branch, which faces no similar constraints, then those constraints would be meaningless. The power to make laws would face few barriers to abuse. Yet that is precisely what is happening today.

A few statistics demonstrate the degree to which the lawmaking authority vested in Congress has been passed off to eager bureaucrats. In 1950, the Federal Register — the federal government’s daily journal containing rules, proposed rules, and public notices — published 9,562 new pages. In 2016, that number had exploded by 97,069 new pages just that single year, the vast majority of them dedicated to new rules and proposed rules.

These rules aren’t just trivial guidelines. Many of the rules have the power to strangle the economy, trample individual rights, and slap the public with severe criminal penalties. In 2016 alone, federal agencies adopted 127 new “major rules,” meaning rules that result in either an annual effect on the economy of at least $100 million, a major increase in costs to consumers and businesses, or significant adverse effects on competition, employment, innovation, etc. Hence, the administrative state does a whole lot more than administer; it rules. And that ruling power lacks safeguards that restrain Congress, allowing administrative agencies to act simultaneously as lawmakers, prosecutors, judges, and police officers. In short, the modern administrative state increasingly resembles James Madison’s idea of tyranny.

This “headless fourth branch of government” is exactly what the Founders sought to avoid by dividing power among independent branches. They knew that the lawmaking power would be ripe for abuse if they didn’t rope it off from the power to execute and adjudicate the laws. Madison described the problem this way: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Framers’ answer to this difficulty is two-fold: Make the government dependent on the people and separate the functions of the government so that ambition will counteract ambition. Delegating the lawmaking power to unelected bureaucrats dissolves both these safeguards.

This development was not an accident. Progressives in the early 20th century picked at the fabric of our constitutional design with the exact intent to unravel the separation of powers. Major political figures of the early 20th century exhibited a cavalier disdain for checks and balances. Teddy Roosevelt, a man perpetually impatient with obstacles to his sweeping vision, said: “The danger to American democracy lies not in the least in the concentration of administrative power in responsible and accountable hands. It lies in having the power insufficiently concentrated, so that no one can be held responsible to the people for its use.”

And Woodrow Wilson claimed that “the radical defect in our federal system [is] that it parcels out power and confuses responsibility as it does.” This is a man who said that, if he could, he would “be willing to go farther and superintend every man’s use of his chance.” Of course, he couldn’t tinker with individuals’ lives as he wished because the Constitution stood in his way, a document he saw as an outdated product of “the old-fashioned days when life was very simple.”

Today’s defenders of a vast bureaucracy trot out the same, tired argument: Life now is much more complicated than the one the Founders lived in — government allegedly needs the unencumbered power to solve modern problems. I would hazard that the men who tackled the challenges of building a nation, quelling rebellions, and tangling with enemies bent on the demise of a fragile republic might disagree that their era was simpler than ours. In fact, one of the grievances against the king listed in the Declaration of Independence echoes the problems of the modern administrative state: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” The common denominator that endures from their era to ours is human nature — something the Framers understood well. In a complex world or a simple one, people are prone to abuse power. The structure built by the Framers is the most elegant and enduring answer to that perennial problem.

The “plot” to end the administrative state is, in fact, an uphill battle to reclaim the principles that founded our free nation. If there’s any plot, it’s the one that has been perpetrated since at least the beginning of the 20th century — to put an end to the separation of powers that stands as the primary barrier to ambitious and power-hungry rulers. In any case, if the revival of the separation of powers is indeed a plot, consider me an eager co-conspirator.

Law & the Courts

Coming for the Lawyers

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

Charles Dickens recited a familiar complaint about lawyers in Bleak House when he wrote, “The one great principle of the English law is to make business for itself.”

It’s a complaint quoted by the Notorious RBG — Supreme Court justice Ruth Bader Ginsburg — in a 2001 speech paying tribute to one group of lawyers who aren’t in business for themselves: those who engage in public-interest work. It’s a topic the justice knows well — she spent nearly 20 years as an active litigator at the American Civil Liberties Union before her appointment to the bench.

But for lawyers not in business for themselves, their work for the public good (in the familiar Latin phrase, pro bono publico) is only possible because of generous donors who support them. Because they do not charge their clients for their services, public-interest lawyers pay the rent thanks to individuals, corporations, foundations, and other non-profit groups that share their passion for their clients and their convictions.

And public-interest lawyers perform a unique function in our legal system because often it’s their mission to win cases that advance a cause or a vision for the Constitution or our society at large.  Because of these goals, they often champion cases that are controversial or that challenge entrenched interests.

Thus, privacy is especially important for public-interest organizations, and that privacy is protected by the First Amendment’s freedom of association. After all, it’s the people on the outside, the newcomers, the minorities, the advocates for different ideas, who most need to shelter beneath the Bill of Rights.

Sadly, though, there’s a new effort underway to undermine freedom of association for public-interest lawyers. Three Democratic U.S. senators recently filed a brief with the U.S. Supreme Court calling for a new rule that could require public-interest legal organizations to disclose all their donors as the price for submitting their views on the Court’s cases. Their brief decries the “secrecy” and “dark money” that currently protect these groups’ ability to operate. It echoes a legislative bill the same trio has introduced in Congress (the AMICUS Act).

Forcing donor disclosure onto non-profit public-interest law firms would drastically curtail the quantity and quality of pro bono lawyering in this nation. As another liberal lion of the Court, Justice Thurgood Marshall, wrote when the government tried to get access to the ACLU’s donor list, “the existence of such a list [in the government’s hands] surely will chill the exercise of First Amendment rights of association on the part of those who wish to have their contributions remain anonymous.”

Justice Marshall knows of what he speaks. As a former chief legal counsel for the NAACP Legal Defense Fund, he saw firsthand the difficulty and danger of public exposure for groups taking controversial legal positions. The NAACP had to go to the Supreme Court numerous times to protect the confidentiality of its contributor list, fully aware that its exposure would create a target list for the bullies to intimidate and harass in the era of Jim Crow.

Now these senators are pursuing a similar goal: to end anonymity for donors to public-interest law firms so that many will stop contributing, and those who do can be targeted for boycotts, bullying, and other less savory tactics of the cancel or call-out culture in which we now live.

The Supreme Court should reject this invitation to violate the freedoms of speech and association. There are enough lawyers out their looking to make business for themselves. Let’s protect one group of attorneys whose only business is defending our constitutional rights.

Law & the Courts

This Day in Liberal Judicial Activism—February 20

(Pixabay)

1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

Law & the Courts

Puzzling Eleventh Circuit Ruling on Florida’s Re-Enfranchisement of Felons

In a ruling today in Jones v. Governor of Florida, an Eleventh Circuit panel held that a state constitutional amendment that conditions the restoration of a felon’s voting rights on his paying all fines, fees, and restitution imposed as part of his sentence violates that felon’s rights under the Equal Protection Clause if the felon is “genuinely unable to pay those obligations.” On an admittedly quick review of the 78-page ruling, I find it very puzzling.

The panel acknowledges that “there is nothing unconstitutional about disenfranchising felons—even all felons, even for life.” But somehow it casts Florida’s system of re-enfranchisement as “punish[ing] a class of felons based only on their wealth.” (Emphasis added.)

I don’t understand this characterization. What Florida is requiring is that felons satisfy the terms of their sentences before their voting rights are restored. Insofar as it makes sense to speak of punishing in this context, it thus would seem more accurate to state that Florida is simply “punishing a class of felons according to the sentences imposed on them.” How can anyone object to that?

The panel, expressly disagreeing with the “only two courts to face this precise claim,” holds that heightened scrutiny, rather than deferential rational-basis review, applies to “automatic felon re-enfranchisement schemes that, as a practical matter, deny indigent felons access to the franchise.”

I’ll note that the panel consisted of two Eleventh Circuit judges in senior status and a district judge, also in senior status, visiting from outside the circuit. (Oral argument took place just 22 days ago; I’d be impressed by the speed if the product were better.) I hope that the judges in active service on the Eleventh Circuit give this one a close look for en banc review.

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This Day in Liberal Judicial Activism—February 18

(Alexei Novikov/Dreamstime)

1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

1981—By a vote of 6 to 1, the Massachusetts supreme court rules (in Moe v. Secretary of Administration) that state statutes that restrict the use of state Medicaid funds for abortions violate the state Constitution.

Law & the Courts

This Day in Liberal Judicial Activism—February 17

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2, that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

Law & the Courts

This Day in Liberal Judicial Activism—February 16

Then-Senate majority leader Harry Reid (right) with Chuck Schumer in 2013. (Reuters photo: Jonathan Ernst)

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.

Law & the Courts

This Day in Liberal Judicial Activism—February 15

A group of firefighters look on as a house burns in the wind-driven Kincade Fire in Healdsburg, Calif., October 27, 2019. (Stephen Lam/Reuters)

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

2017—In a majority opinion written by Judge Karen Nelson Moore and joined by Judge Jane Stranch, a divided Sixth Circuit panel rules (in Bormuth v. County of Jackson) that a county board of commissioners’ practice of beginning its monthly meetings with a prayer violates the Establishment Clause. In dissent, Judge Richard Griffin objects that the practice of legislative prayer dates back to the founding of the Republic and that the Supreme Court has twice held that it does not violate the Establishment Clause.

Five months later, the en banc Sixth Circuit will reject the panel ruling by a vote of 9 to 6.

2019—There is evidently no truth that liberal judges won’t disparage as a negative stereotype when it suits their cause.

In Free the Nipple-Fort Collins v. City of Fort Collins, a divided panel of the Tenth Circuit enjoins, on equal-protection grounds, a city ordinance that prohibits women from baring their breasts in public (other than for purposes of breastfeeding) but imposes no restrictions on male toplessness. In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips heroically combats the “stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” (He’s approvingly quoting the district court.)

In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.

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This Day in Liberal Judicial Activism—February 14

(Photo: Travelling-light/Dreamstime)

1972—By a vote of 6 to 1, the Florida supreme court rules (in State v. Barquet) that the state’s statutory prohibition of abortion violates the federal and state constitutions because its exception for abortions “necessary to preserve the life of [the] mother” is supposedly “incapable of certain interpretation.”

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” only in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Law & the Courts

Former Reinhardt Clerk Alleges Pervasive Sexual Harassment and Misconduct

In testimony offered today before a House subcommittee exploring how to protect federal judicial employees from sexual harassment, Olivia Warren, who was a law clerk for Ninth Circuit judge Stephen Reinhardt during the last year of his life, provides an extraordinary account of Reinhardt’s misbehavior. Some excerpts:

I quickly learned how often the judge commented in detail on the appearance of women. During my first few weeks at the clerkship, Judge Reinhardt’s chambers was in the midst of hiring new clerks for future terms. The Judge brought to my office photos that had been printed from the social media accounts of two female applicants who were scheduled to come to chambers for interviews. Judge Reinhardt instructed me to look at the photos and asked me to assess which candidate was more attractive and which candidate had nicer or longer legs. He then asked me which would add more “value” to chambers based on the photos.

Early in my clerkship, I also learned about a shelf in the judge’s office where he kept pictures of some of his female “pretty” clerks, many of which included Judge Reinhardt in the photo as well. Judge Reinhardt made it clear that photographs of male law clerks would not be placed on the shelf and that the shelf was special. Judge Reinhardt discussed the appearance of women directly, but he also had a regular euphemism: he used “short” and “tall” as code for “unattractive” and “attractive,” respectively, when referring to different women—including describing women of the same height, standing next to one another, as short and tall. Sometimes these comments were used to describe people outside of chambers, and sometimes they were used to describe us, his current and former law clerks. Judge Reinhardt only contemplated the attractiveness of women through the male gaze, and at times he used homophobic slurs: for example, a gay female clerk was repeatedly referred to by the judge as a “dykester,” which he found funny.

All of that provides the context within which I experienced direct sexual harassment. Judge Reinhardt routinely and frequently made disparaging statements about my physical appearance, my views about feminism and women’s rights, and my relationship with my husband (including our sexual relationship). Often, these remarks included expressing surprise that I even had a husband because I was not a woman who any man would be attracted to. In that vein, Judge Reinhardt often speculated that my husband must be a “wimp,” or possibly gay. Judge Reinhardt would use both words and gestures to suggest that my “wimp” husband must either lack a penis, or not be able to get an erection in my presence. He implied that my marriage had not been consummated. I was subjected on a weekly, and sometimes daily, basis to these types of comments about my husband, our relationship, and my being a woman who no man would marry—which he attributed both to my being a feminist and to my physical appearance, including my “short” stature. Judge Reinhardt made these comments to me when we were alone, and also in front of other members of chambers at times.

The atmosphere in chambers worsened in late 2017 with the start of the Me Too movement, which became Judge Reinhardt’s favorite topic of conversation. He frequently discussed and always cast doubt upon credible allegations of sexual harassment. The doubts he expressed were sometimes based on his assessment of the attractiveness of the accuser, and sometimes based on his general incredulity that men could be harassing women. For example, Judge Reinhardt told me that the allegations of sexual harassment that came out against people like Louis CK and Harvey Weinstein were made by women who had initially “wanted it,” and then changed their minds. Regarding Louis CK, he repeatedly asked me to explain to him why a man would want to show a woman his penis or masturbate in front of her. When I could not satisfy these kinds of questions about the alleged choices of men, Judge Reinhardt often responded by telling me that women were liars who could not be trusted. Sometimes, he read me emails that he exchanged with his friends about the Me Too movement that cast doubt on women raising sexual harassment and misconduct allegations. When I engaged in these discussions with him and would try to explain that sexual harassment was indeed a pervasive problem, he regularly replied with the same playbook I described above—that I did not understand sexual harassment because I was not attractive, that I did not understand men because I was a feminist, and that my husband was not a real man.

Another turning point in chambers occurred on December 8, 2017, when the Washington Post publicly reported on allegations about Judge Alex Kozinski’s conduct. I was alarmed by Judge Reinhardt’s fury at these allegations against his close friend. I was also concerned that this would prompt other people to raise similar complaints about Judge Reinhardt, even while I was still a clerk in chambers. Shortly after the first media report, the judge again told me that women were not to be trusted and that he did not ever want to be alone in a room with a female law clerk again; he suggested that he would not hire any more female clerks or other female employees for these reasons. After he had made that statement, he would sometimes suggest when he and I were alone that he needed protection because I might sexually assault him.

There is, of course, no reason to presume that the awful problem of sexual harassment by judges predominates on one or the other side of the ideological aisle. I also have no idea how prevalent it is; by calling it awful, I mean simply that it is awful whenever it occurs.

Law & the Courts

This Day in Liberal Judicial Activism—February 13

(Alan Crosthwaite/Dreamstime)

2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

Law & the Courts

Ninth Circuit’s Title IX Transgender Ruling Ought to Cut Both Ways

In an opinion rendered today (in Parents for Privacy v. Barr), a Ninth Circuit panel rejected various constitutional and statutory claims that an Oregon public school district violated the rights of students when it allowed other students who identified as transgender to use the bathrooms, locker rooms, and showers that matched their gender identity rather than their biological sex.

I’d like to focus here on the panel’s holding that the school district’s policy didn’t violate Title IX. (Slip op. at 27-33.)

Title IX provides that no person shall be subjected to discrimination “on the basis of sex” in any education program that receives federal funding. The parents and students challenging the school district’s policy contended that it created a sexually harassing environment. But the Ninth Circuit held that “a policy that treats all students equally does not discriminate based on sex in violation of Title IX.” (Slip op. at 9.) In response to the plaintiffs’ charge that (in the panel’s paraphrase) the policy “actually harasses both sexes on the basis of their sex by allowing students assigned the opposite sex at birth to enter privacy facilities,” the panel states:

To the contrary, treating both male and female students the same suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes. Numerous courts have ruled that a Title IX sexual harassment hostile environment claim fails where the alleged harassment is inflicted without regard to gender or sex, i.e., where there is no discrimination. [Citations omitted.] We see no reason to arrive at a different conclusion here.

The question in this case was whether a school district may allow transgender students to use the facilities of the opposite sex. In other cases, in challenges brought by transgender students, the question is whether school districts must allow such use. It seems to me that the principles that the panel propounds dictate a “no” answer to that question: A “policy that treats all students equally”—by requiring that they use the facilities that match their biological sex—“does not discriminate based on sex in violation of Title IX.” Such a policy “treat[s] both male and female students the same” and thus “suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes.”

I’ll add that I am struck by the panel’s casual embrace of transgender semantics, a semantics that is freighted with ideological weight. To cite just a few examples: The panel speaks of “a transgender person who was assigned the opposite biological sex at birth.” (As noted above, it even uses that bizarre phrasing when it paraphrases plaintiffs’ argument.) It uses male pronouns for a student “who had been born and who remained biologically female”—and who, for all we know, was still a female under Oregon law.* And it uses the word cisgender on multiple occasions—“cisgender boys,” cisgender girls,” “cisgender students.”

The panel’s degraded English is also reflected in its reciting, without comment or correction, the school district’s policy of allowing a female student who identifies as male to “use any of the bathrooms in the building to which he identifies sexually.” Identifying sexually to a bathroom?!? What sort of weird language is that?

* In his recent opinion objecting to the denial of rehearing en banc in Edmo v. Corizon, Inc., conservative Ninth Circuit judge Diarmuid O’Scannlain explained that he was using female pronouns for a prisoner who “was born a male” because the prisoner had “legally changed the sex listed on her birth certificate to female.”

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This Day in Liberal Judicial Activism—February 12

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

 

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country.

 

Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what liberal inventions the American public will acquiesce in are closely linked to her view of what the Court should impose.

Law & the Courts

EPPC Amicus Brief in Ministerial-Exception Cases

I’m pleased to highlight that the Ethics and Public Policy Center (the think tank I run) has filed an amicus brief in the Supreme Court in support of the two Catholic schools in the pending cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. EPPC’s brief urges the Supreme Court to adopt procedural protections in support of the First Amendment’s ministerial exception.

My thanks to Matthew T. Nelson and Conor B. Dugan of the law firm of Warner Norcross & Judd in Grand Rapids, Michigan, for their generous and excellent pro bono representation.

Oral argument in the cases will take place on April 1.

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Representative Alexandria Ocasio-Cortez is precisely the sort of campaign surrogate you want, especially if you are Bernie Sanders: She is young, energetic, charismatic, popular (with the people she needs to be popular with, anyway), and, happily, currently ineligible to run for the presidency ... Read More

Bill Barr Derangement Syndrome

Can the republic survive Attorney General William Barr? That’s the question that has seized the media and center-left, which have worked themselves into a full-blown panic over an attorney general who is, inarguably, a serious legal figure and one of the adults in the room late in President Trump’s first ... Read More

Bill Barr Derangement Syndrome

Can the republic survive Attorney General William Barr? That’s the question that has seized the media and center-left, which have worked themselves into a full-blown panic over an attorney general who is, inarguably, a serious legal figure and one of the adults in the room late in President Trump’s first ... Read More

Democrats Still Haven’t Come to Terms with 2016

In an otherwise excellent Politico article advising Democrats how to avoid the fate of 2012 presidential candidate Mitt Romney, former Obama staffer Dan Pfeiffer offers his team some self-soothing revisionism regarding the 2016 election: When all is said and done, the 2016 election might end up being a ... Read More

Democrats Still Haven’t Come to Terms with 2016

In an otherwise excellent Politico article advising Democrats how to avoid the fate of 2012 presidential candidate Mitt Romney, former Obama staffer Dan Pfeiffer offers his team some self-soothing revisionism regarding the 2016 election: When all is said and done, the 2016 election might end up being a ... Read More

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More

The Farming Wit and Wisdom of Mike Bloomberg

Here is what Democratic candidate for president Michael Bloomberg said in 2016 at Oxford, in what he apparently offered up as an ad hoc history of labor, agriculture, and industry, leading up to his own sophisticated era, as reported in the New York Post: "I could teach anybody, even people in this room, no ... Read More

The Farming Wit and Wisdom of Mike Bloomberg

Here is what Democratic candidate for president Michael Bloomberg said in 2016 at Oxford, in what he apparently offered up as an ad hoc history of labor, agriculture, and industry, leading up to his own sophisticated era, as reported in the New York Post: "I could teach anybody, even people in this room, no ... Read More

The Return of Conservative Economics

Today we are announcing the formation of American Compass, an organization dedicated to helping American conservatism recover from its chronic case of market fundamentalism. In preparation, we have been perusing the mission statements of many of our nation’s think tanks. Nearly every group has one. Oddly, the ... Read More

The Return of Conservative Economics

Today we are announcing the formation of American Compass, an organization dedicated to helping American conservatism recover from its chronic case of market fundamentalism. In preparation, we have been perusing the mission statements of many of our nation’s think tanks. Nearly every group has one. Oddly, the ... Read More