Law & the Courts

This Day in Liberal Judicial Activism—December 14

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

Sixth Circuit Grants En Banc Rehearing on Ohio Abortion Law

As I discussed more fully in this post, in October a divided panel of the Sixth Circuit barred the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.

I’m pleased to report that the Sixth Circuit has granted the state of Ohio’s petition for rehearing en banc. In its petition, the state argued that the panel majority erred when it concluded that Supreme Court precedent creates a “categorical” right to a pre-viability abortion. It also emphasized the state’s “critically important” interests in protecting the dignity of people with Down syndrome and in preventing the medical profession from promoting eugenic “solutions.”

Law & the Courts

En Banc Eleventh Circuit Dismisses Equal-Protection Challenge to Alabama Minimum-Wage Law

In July 2018, a panel of the Eleventh Circuit ruled (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.” In my critique back then, I explained that the panel’s reasoning struck me as farfetched, with radical implications for future judicial intrusion on the legislative processes.

Today the en banc Eleventh Circuit ruled, by a vote of 7 to 5, that the plaintiff employees did not have Article III standing to sue the state attorney general. It therefore found it unnecessary to reach the equal-protection claim. On the standing question, the en banc majority ruled that plaintiffs failed to satisfy the “traceability” and “redressability” components of standing. That is, they could not trace their injuries (alleged lower wages) to anything that the state attorney general did wrong (slip op. at pp. 13-23), and a judgment against the state attorney general would not plausibly have led their employers to pay a higher wage (pp. 23-33). I’ll leave it to standing mavens to sort through the competing arguments made by the majority and the dissenters.

Law & the Courts

Year-End Invitation

Please indulge my once-a-year pitch:

If you enjoy my posts here on Bench Memos and appreciate the impact that I’ve had over the years on the broader debate on constitutional issues and judicial confirmations, then I invite you to support the Ethics and Public Policy Center (in addition to supporting National Review). It’s my full-time position as president of EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. Plus, I have a great team of colleagues at EPPC, including frequent NRO contributors George Weigel, Mona Charen, Henry Olsen, and Stanley Kurtz.

Law & the Courts

Christmas Books

Are you looking for books to give to family members or friends? Or to suggest that they give you? Well, I have a couple of recommendations for you—two books of Justice Scalia’s writings that I had the privilege of co-editing:

One is On Faith: Lessons from an American Believer. As the double meaning of the book’s subtitle suggests, On Faith collects Justice Scalia’s thoughts both about religious belief and about the place of religion in American public life. The collection includes speeches, excerpts from some of Justice Scalia’s Supreme Court opinions, and reflections on his faith by his friends, colleagues, law clerks, and family. On Faith also features a beautiful foreword by Justice Thomas, a moving introduction by Fr. Paul Scalia, and Fr. Scalia’s powerful homily at his father’s funeral Mass.

The second is the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, a delightful collection of dozens of Justice Scalia’s speeches on on topics as varied as the law, faith, virtue, pastimes, and heroes and friends. This volume features a touching foreword by Justice Ginsburg.

Law & the Courts

This Day in Liberal Judicial Activism—December 13

(Brendan McDermid/Reuters)

1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972.

In the meantime, the Court will issue its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple of extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

2013—“To put it simply, polygamy is now lawful in Utah.” That’s how the winning attorney for Cody Brown and his “Sister Wives” of reality-show fame celebrates federal district judge (and Bush 43 appointee) Clark Waddoups’s remarkably strange and rambling opinion in Brown v. Buhman.

Beyond relying extensively on leftist academic Edward Said’s theory of “orientalism,” Waddoups rejects the Utah supreme court’s authoritative reading of one part of Utah’s anti-bigamy statute, and he unpersuasively concludes that the cohabitation prong of the statute has been enforced in a discriminatory manner against those engaged in “religious cohabitation.”

In May 2016, the Tenth Circuit will rule that Waddoups should have dismissed the case as moot after prosecutors adopted a policy under which Brown and his wives would not face prosecution. The Tenth Circuit orders Waddoups to vacate his judgment.

Law & the Courts

On Confirmations of District Judges

Lots of attention has properly been paid to President Trump’s remarkable record of achievement on federal appellate nominations. Over the course of three years, Trump has now had 50 appellate nominees confirmed. That compares very favorably to President Obama’s total of 55 over his eight years in office. Plus, Trump’s appellate nominees have, overall, been of a remarkably high caliber. Even Ian Millhiser, an outspoken critic of judicial conservatism, acknowledges in this interesting Vox article that Trump has “identif[ied] many of the most talented conservative stalwarts in the entire legal profession to place on the bench” and that “based solely on objective legal credentials, the average Trump [appellate] appointee has a far more impressive résumé than any past president’s [appellate] nominees.”

That said, I’ll offer a few quick observations here on district-court nominations:

1. One critical fact to keep in mind on district-court nominations is that the Senate Judiciary Committee’s blue-slip policy remains in full force on those nominations. That means that home-state senators have an effective veto over district-court nominees. So in “blue states” (which I will define here to mean states with two Democratic senators) and in “purple states” (states with one Democratic senator), the White House has to strike deals with Democratic senators if it wants to get district-court nominees confirmed. That’s why you’ll find examples of Trump’s district-court nominees who are essentially the picks of home-state Democratic senators.

2. The Senate has confirmed 120 of Trump’s district-judge nominees. (President Obama had 97 confirmed in his first three years.) More than half—67—of those confirmations have occurred over the past eight months, in the aftermath of the Senate’s adoption of a rule limiting the (never or rarely used) hours of post-cloture debate on district-court nominations.

There are currently 18 district-court nominations awaiting action on the Senate floor. Of the 18, 13 are from blue or purple states (and have thus already cleared the blue-slip hurdle), so you’d think that there would be a deal to get most or all confirmed before the Senate recesses for the year (probably at the end of next week). But we’ll see.

There are 7 district-court nominees who will soon be reported out of committee and 17 more who await their committee hearing.

3. There are some 50 or so district-court vacancies (both for current vacancies and declared future vacancies) for which there are not nominations. That includes, for example, six vacancies in the District of New Jersey, two of which date back to early 2015.

On longstanding vacancies on which the White House and home-state Democratic senators haven’t yet been able to strike a deal, it seems unlikely that they will be able to do so before the 2020 elections.

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.”

Law & the Courts

Here’s What Senator Blumenthal Did Not Tell You

Senator Richard Blumenthal (D., Conn.) on Capitol Hill in Washington, D.C., May 1, 2019. (Aaron P. Bernstein/Reuters)

On Dec. 10, Senator Richard Blumenthal (D., Conn.) argued against confirming Lawrence VanDyke to the U.S. Court of Appeals. Doing so, he said, would depart from “bedrock principles that once guided the exercise of the Senate’s constitutional duty to advise and consent” on the president’s nominations. Blumenthal neglected to mention some important information that puts his criticisms in a very different light.

First, Blumenthal said that Van Dyke does not have the support of his home state senators. He failed to explain that, while such support has long been critical for nominees to the U.S. District Court, it is less important for appellate court nominees such as Van Dyke. The reason is obvious. Judicial districts do not extend beyond the borders of a single state, while appeals court circuits include multiple states.

Blumenthal also said nothing about his own voting record. This year alone, he has voted against nearly three dozen district court nominees, each of whom was supported by both home state senators.

Second, Blumenthal noted that the American Bar Association rated Van Dyke “not qualified” for the Ninth Circuit. If past confirmation practice is as important as Blumenthal says, however, this would not disqualify Van Dyke. During the last four administrations, two Republican and two Democrat, 19 judicial nominees have received a “not qualified” rating from the ABA. The Senate confirmed 13 of them, nine of those without any opposition.

Blumenthal knows first hand about the Senate’s treatment of nominees with “not qualified” ABA ratings. In 2006, President George W. Bush nominated Vanessa Bryant to the U.S. District Court in Connecticut. Her ABA rating was identical to Van Dyke’s. The Connecticut Attorney General not only supported Bryant’s nomination, but criticized the ABA’s evaluating and rating process. In particular, he expressed great concern “with the credibility of anonymous sources when those sources are used as evidence for a subjective characteristics such as judicial temperament.” That AG was Richard Blumenthal.

In addition, so far in 2019, Blumenthal has voted against 40 judicial nominees who had been rated “well qualified” by the ABA. Perhaps that ABA rating just isn’t as big a deal as Blumenthal now suggests.

Third, Blumenthal claimed that, as a judge, Van Dyke would handle issues the same way he had as a lawyer in private practice or as Solicitor General of Nevada and Montana. It is common for the Left to say that judges decide cases based on their personal views and to virtually ignore the distinction between the advocate who appears before the bench and the judge who sits behind it. The oath of judicial office required by federal statute, however, requires judges to decide cases impartially and to do equal justice to every litigant — exactly the opposite of the politicized judicial process Blumenthal apparently advocates.

Law & the Courts

Appellate Confirmations Keep Humming Along

This afternoon the Senate will vote on President Trump’s nomination of Lawrence VanDyke to the Ninth Circuit. If, as expected, VanDyke’s confirmation is confirmed, VanDyke will become the seventh federal appellate nominee confirmed in the past five weeks, after Danielle Hunsaker (CA9), William Nardini (CA2), Steven Menashi (CA2), Robert Luck (CA11), Barbara Lagoa (CA11), and Patrick Bumatay (CA9) yesterday. [Update (4:50 p.m.): The Senate confirmed VanDyke by a 51-44 vote. He becomes President Trump’s 50th confirmed appellate nominee.]

For these seven nominees, the average time from the White House’s announcement of their intended nomination until Senate confirmation was 76 days (range from 68 to 92 days), and the average time from actual nomination until Senate confirmation was 50 days (range from 35 to 66 days).

Law & the Courts

This Day in Liberal Judicial Activism—December 11

(Pixabay)

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years earlier—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.” The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.

Some six months later, the court will finally end the litigation. Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government of three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

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

Judge Stephen Reinhardt

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.”

Law & the Courts

This Day in Liberal Judicial Activism—December 5

(Shutterstock)

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.

2018—No Catholics need apply? In written questions following his hearing, Democratic senators Kamala Harris and Mazie Hirono grill Brian C. Buescher, a nominee to a district-judge seat in Nebraska, about his membership in the Knights of Columbus, the world’s largest Catholic fraternal organization.

In response, Democratic congresswoman Tulsi Gabbard will strongly condemn Hirono and Harris for “fomenting religious bigotry.” (In July 2019, the Senate will confirm Buescher’s nomination.)

Law & the Courts

Judicial Confirmation Status and Expectations

(Carlos Jasso/Reuters)

Three months ago, when the Senate returned from the August recess, I wrote about what to expect from the judicial confirmation process for the rest of the 116th Congress. With the Senate back from the Thanksgiving recess, let’s take another look.

Persistence by the Senate leadership has paid off, with the percentage of judicial positions currently vacant declining from 12 percent to 10.5 percent. This is still substantially higher than the vacancy rate at this point under the previous five administrations. Vacancies are 34 percent higher than September 2015, when Senator Patrick Leahy (D., Vt.) said that we were “heading into a vacancy crisis.”

The federal judiciary’s administrative office designates certain vacancies as “emergencies” because they have been open so long and have a negative effect on judicial caseloads. The percentage of current vacancies in this emergency category has increased from August, and the current 56.7 percent is much higher than the previous average of 39.4 percent. These judicial emergency vacancies have been open an average of 935 days, compared to 744 days at this point under President Barack Obama.

During the final 13 months of the previous five presidents’ first term, the Judiciary Committee held an average of 15 confirmation hearings for 51 judicial nominees. And during that period, the Senate confirmed an average of 5.8 percent of the judiciary, which today would be an additional 50 judges.

The fourth year of Obama’s first term, when his own party controlled the Senate, might also be a useful guide. In 2012, the Senate confirmed 64 judges, and both hearings and confirmations continued into December.

By now, the record is well-established that Trump’s judicial nominees face, by orders of magnitude, unprecedented obstruction and opposition. Even though the liberal ABA gives Trump nominees comparable or higher ratings, for example, Democrats have forced the Senate to take a separate vote to end debate, known as a cloture vote, on 129 Trump nominees, or 75 percent of his confirmed judges. During the entire first term of the previous five presidents, the Senate took a cloture vote on an average of 1.5 percent.

Ten Democrats serving in the Senate today were here during the first three years (2001–03) of the previous Republican administration. The Senate confirmed the same number of judges in both periods. These ten Democrats – including current Minority Leader Chuck Schumer (D., N.Y.) — voted against an average of five percent of President George W. Bush’s judges, but have voted against an average of 50 percent of Trump’s judges. So this is not simply ordinary, garden-variety partisanship.

These strong confirmation headwinds are likely to continue, and perhaps even intensify. But the Senate can and should continue to make progress filling vacancies and equipping the judiciary to do its job.

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