Law & the Courts

Focus On Lower Courts to Continue; New Ninth Circuit Nominee Announced

While the attention of the nation focuses on the nomination of Brett Kavanaugh to the Supreme Court, the White House and the Senate leadership are continuing their work filling the lower court vacancies across the country. Last week, President Trump announced his 16th wave of judicial nominees, which includes Eric Miller, the president’s nominee to the U.S. Court of Appeals for the Ninth Circuit.  Mr. Miller is yet another stellar nominee to the federal courts of appeals, and if confirmed Mr. Miller will be the fifth of President Trump’s circuit court judges who is a former law clerk to Justice Clarence Thomas.  My snapshot of Eric Miller appears in the following post.

Also last week, a spokesman for the Senate Judiciary Committee, Taylor Foy, told the Washington Examiner, “We don’t anticipate the [Supreme Court] vacancy will have much of an impact on our progress on lower court nominees, especially considering that the Senate will be in session for much of August.”  This is good news for the President’s pending judicial nominees: thanks to the continuing obstruction of Senate Democrats, there are currently 100 pending judicial nominees, including the most recent wave.

Demonstrating this continued to commitment to confirming circuit court judges, Senate Majority Leader Mitch McConnell has filed for cloture (to end debate) on the nominations of Andy Oldham (Fifth Circuit) and Ryan Bounds (Ninth Circuit). This procedural moves sets up confirmation votes for Oldham and Bounds later this week or early next week.  If confirmed, Oldham and Bounds will be the 23rd and 24th circuit court judges confirmed during the Trump Administration, setting a new record for most circuit judges confirmed in the first two years of a President’s term.

Law & the Courts

Who is Eric Miller?

Eric Miller is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Washington.

 Age:  44 (approximate)

Current Position:  Partner, Perkins Coie LLP (Seattle, Washington) 

Education:

  • B.A., Harvard University (majored in Physics); magna cum laude (1996)
  • J.D., University of Chicago Law School (1999); highest honors; Order of the Coif; Topics and Comments Editor, University of Chicago Law Review

Judicial Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit (1999-2000); Associate Justice Clarence Thomas, U.S. Supreme Court (2000-2001)

Professional Experience:

  • 2007-2012: Assistant to the Solicitor General, Office of the Solicitor General, U.S. Department of Justice (Washington, D.C.)
  • 2006-2007: Deputy General Counsel, Office of the General Counsel, Federal Communications Commission (Washington, D.C.)
  • 2004-2006; 2001-2003: Appellate Attorney, Civil Division, U.S. Department of Justice (Washington, D.C.)
  • 2003-2004: Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)

Career Notes:

  • Miller currently serves as Firmwide Chair of the Appellate Practice and Co-Chair of the Tech Amicus Practice at Perkins Coie. He has presented over 60 appellate arguments during his career, including 16 in the U.S. Supreme Court.
  • He has experience in a large range of substantive fields, including communications, energy, employment, and administrative law.
  • As Deputy General Counsel of the FCC, Mr. Miller was responsible for defending the Commission’s orders in the federal courts of appeals.
  • Miller is a part-time lecturer at the University of Washington School of Law.

Professional Associations:

  • Miller is listed as an expert for the Federalist Society, and has spoken on panels about litigation before the Supreme Court.
  • He serves as an Appellate Lawyer Representative to the Ninth Circuit and is a member of the Washington Appellate Lawyers Association.

Honors:

  • Miller has been ranked by Chambers USA in the area of Appellate Law since 2014.
  • In 2008, Mr. Miller received the Attorney General’s Distinguished Service Award for his work in national security litigation on behalf of the Department of Justice.
Law & the Courts

This Day in Liberal Judicial Activism—July 17

Illinois state senator Barack Obama in 2004. (Tim Boyle/Getty)

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

Law & the Courts

Adler: Kavanaugh “Evenhanded” in Matters of Administrative Law

Case Western University Law Professor Jonathan Adler has an op-ed in today’s New York Times detailing Judge Brett Kavanaugh’s vast experience in the area of administrative law, and his “willingness to discipline federal agencies when they go astray,” irrespective of the underlying policy issues implicated.

Adler notes that over one-third of the nearly 300 opinions that Judge Kavanaugh has authored over the last twelve years while sitting on the D.C. Circuit concern matters of administrative law, arising from litigation involving the various federal agencies.  Adler writes that the Supreme Court nominee’s opinions on the D.C. Circuit—“arguably the most influential court on matters of administrative law”— demonstrate “someone who takes administrative law principles to heart.”

Adler notes that, like President Trump’s first nominee to the Supreme Court, Justice Neil Gorsuch, “Judge Kavanaugh has expressed concerns about the Chevron doctrine, under which agencies’ interpretations of the statutes they administer may receive deference from courts.”  Like Gorsuch, “Kavanaugh believes that some courts have taken this doctrine too far and that where agency actions implicate matters of great economic or political significance, courts should pause before assuming Congress has delegated agencies power of such broad scope.”  Rather, Judge Kavanaugh once wrote that “policy is for Congress and the president to establish as they see fit in enacting statutes,” adding that the judiciary’s ‘more modest task’ is to ensure that ‘agencies comply with the law as it has been set by Congress.’”

Importantly, Adler explains that Kavanaugh’s concerns about the expansion of the administrative state are not driven by policy outcomes.  Citing to a forthcoming study examining the application of the Chevron doctrine by the lower courts, Adler observes, “Judge Kavanaugh is quite evenhanded, applying the same approach whether evaluating agency actions that could be characterized as liberal or conservative.”  With respect to the Trump Administration’s emphasis on deregulation, Adler believes that it is unlikely that a future “Justice Kavanaugh would give its initiatives an easy pass if the federal agencies in question do not do the work to demonstrate they are fulfilling their statutory and other legal obligations.”

It is this attribute—Judge Kavanaugh’s foremost dedication to the rule of law, irrespective of policy outcomes—that likens him to Justice Gorsuch, and will make Judge Kavanaugh an outstanding justice on the Supreme Court.

Law & the Courts

Fifth Circuit Blocks Outrageous Discovery Order Against Texas Catholic Conference

Last month, I called attention to an outrageous discovery order, and associated procedural shenanigans, by federal district judge David Ezra in a case in which abortion providers are challenging a provision of Texas law that would require them to bury or cremate fetal remains. In brief, in a transparent effort to punish the Catholic bishops in Texas for offering to provide free burial of fetal remains, the abortion providers subjected the Catholic bishops (who aren’t even parties to the case) to abusive discovery requests that sought to intrude on their internal communications. And Judge Ezra seemed bizarrely eager to do their bidding.

I’m pleased to report that a Fifth Circuit panel, on emergency appeal, has blocked Judge Ezra’s order. As Judge Edith Jones sums things up in her majority opinion (over a dissent), Judge Ezra’s “analysis was incorrectly dismissive of the issues raised by TCCB” (the Texas Conference of Catholic Bishops):

The court erred in determining that TCCB waived its claim of protection under RFRA. The court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here.

Here’s a longer excerpt from Judge Jones’s excellent opinion (emphasis in original):

Contrary to the district court, … the explanation of how TCCB’s activities—and the activities of any other religious institution forced to endure similar discovery—are “chilled” by enforcement of this subpoena seems self-evident. As TCCB describes, in addition to the significant cost of complying with the original subpoena (100 work hours and over $20,000 in attorney’s fees), TCCB has delayed and missed ministry opportunities; suffered in relationships with other Catholic ministries whose communications it was forced to disclose; was required to cancel internal ministry reports and training materials; TCCB bishops and staff were discouraged from engaging in other public policy activities; and Texas Catholic cemeteries were deterred from participating in the fetal remains registry. TCCB’s ability to conduct frank internal dialogue and deliberations was undermined, and not only because enforcement of the subpoena inhibits the further use of email communications. Why the district court found “chilling” but not “severe” its discovery order’s impact on TCCB’s internal email communications, in this era of instant group communication, is hard to fathom. Even more disturbing, this discovery order forces TCCB to turn over to a public policy opponent its internal communications, setting a precedent that may be replicated in litigation anywhere.

These burdens flow naturally into TCCB’s arguments for a privilege based on the structural protection afforded religious organizations and practice under the Constitution. “[I]t is easy to forget that the autonomy of religious groups . . . has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 199-200, 132 S. Ct. 694, 712 (Alito, J., concurring) (citing Kedroff, 344 U.S. at 116, 73 S. Ct. at 154-55). Both free exercise and establishment clause problems seem inherent in the court’s discovery order. That internal communications are to be revealed not only interferes with TCCB’s decision-making processes on a matter of intense doctrinal concern but also exposes those processes to an opponent and will induce similar ongoing intrusions against religious bodies’ self-government. Moreover, courts’ involvement in attempting to parse the internal communications and discern which are “facts” and which are “religious” seems tantamount to judicially creating an ecclesiastical test in violation of the Establishment Clause.

In addition to joining Judge Jones’s opinion, Judge James Ho wrote a brief concurring opinion that forcefully states:

It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.

The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.

But from the proceedings below, you would think the opposite were true.

Those proceedings are chronicled in Judge Jones’s comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.

Somehow I suspect that the Fifth Circuit is going to have more errors by Judge Ezra to correct in this case.

Congratulations to the Becket Fund for Religious Liberty for its outstanding work on behalf of the Texas bishops on this appeal.

Law & the Courts

This Day in Liberal Judicial Activism—July 16

(Reuters file photo: Robert Galbraith)

2014—Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds.

Law & the Courts

This Day in Liberal Judicial Activism—July 15

(Shutterstock)

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

Law & the Courts

This Day in Liberal Judicial Activism—July 14

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

Law & the Courts

Breyer Erratum

A follow-up to this post of mine from the last week of the Court’s term: A reader kindly calls to my attention that Justice Breyer has corrected his surprising misspelling of laissez-faire as lassez-faire in the first sentence of his dissent in Ohio v. American Express Co.

(Who says that Bench Memos doesn’t deliver results?)

Law & the Courts

Yale Law Prof Amy Chua Hails Kavanaugh as ‘Extraordinary’ Mentor for Women

In this powerful op-ed in today’s Wall Street Journal, Yale law professor Amy Chua celebrates Supreme Court nominee Brett Kavanaugh’s “extraordinary mentorship” of young women lawyers.

More than half of Kavanaugh’s law clerks have been women, many of them from Yale. Chua, having served on Yale’s clerkship committee, helped place them with Kavanaugh and inquired of them about their clerkship experiences. She writes:

They cited his legendary work ethic (“He expected us to work really hard, but there was always one person working harder than us—the Judge”), his commitment to excellence (“he wants every opinion that comes out of his chambers to be perfect; it is not uncommon to go through 30-50 drafts”), his humility (“He can take a great joke just as easily as he can land one”), and his decency (“I’ve never seen him be rude to anyone in the building”).

To a person, they described his extraordinary mentorship. “When I accepted his offer to clerk,” one woman wrote, “I had no idea I was signing up for a lifelong mentor who feels an enduring sense of responsibility for each of his clerks.” Another said: “I can’t imagine making a career decision without his advice.” And another: “He’s been an incredible mentor to me despite the fact that I’m a left-of-center woman. He always takes into account my goals rather than giving generic advice.”

These days the press is full of stories about powerful men exploiting or abusing female employees. That makes it even more striking to hear Judge Kavanaugh’s female clerks speak of his decency and his role as a fierce champion of their careers.

Chua’s own daughter was set to begin a clerkship with him next month:

If the judge is confirmed, my daughter will probably be looking for a different clerkship. But for my own daughter, there is no judge I would trust more than Brett Kavanaugh to be, in one former clerk’s words, “a teacher, advocate, and friend.”

Law & the Courts

#BrettKavanaughScandals: A Survey

In an apparent first for a nominee to the nation’s High Court, this week we saw the Left scrutinize Brett Kavanaugh’s interest in baseball and attack . . . wait for it . . . his “frat boy name.”  These absurd critiques have prompted the Twitterverse to coin a new hashtag.  To have a little fun on a Friday, I present my Top 10 #BrettKavanaughScandals from Twitter.

Law & the Courts

This Day in Liberal Judicial Activism—July 13

Judge David F. Hamilton at the IU Maurer School of Law. (Steve Raymer)

2006— In United States v. McCotry, federal district judge David F. Hamilton invokes “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances.  One year later, a unanimous Seventh Circuit panel will reverse Hamilton’s ruling.

In March 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to an appellate seat.

Law & the Courts

Judge Kavanaugh’s Free-Speech Record

Justice Anthony Kennedy was a staunch defender of the First Amendment. He was the most speech-protective justice on a quite speech-protective Court. This might lead some to wonder about Judge Kavanaugh’s record on First Amendment issues.

Over at Popehat, Ken White analyzes Judge Kavanaugh’s record on the freedom of speech. Here is what he finds:

Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court’s strong protection of free speech rights this century. People who buy into the “conservatives are weaponizing the First Amendment” narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he’s also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He’s quoted First Amendment guru Eugene Volokh — one of the leading voices in free speech analysis and a strong defender of speech rights.

Law & the Courts

Should the Senate Wait to Confirm Kavanaugh Until after the Mueller Investigation?

Led by Senator Cory Booker (D., N.J.) some on the left are insisting that the Senate defer consideration of Supreme Court nominee Brett Kavanaugh until independent counsel Robert Muller’s investigation is complete.

Booker & Co. have not explained the connection between the Mueller investigation and the Kavanaugh nomination. It’s possible they mean that the Supreme Court may, someday, have to consider a case arising from the investigation. By that “logic,” however, the Senate should not consider Supreme Court nominations because, someday, it might have to consider whether legislation is constitutional. That’s the Supreme Court’s job.

Here’s a precedent that Booker may have overlooked.

In March 1992, during the presidential campaign, the New York Times published an exposé of investments made in the Whitewater Development Corporation by then-Arkansas governor Bill Clinton, his wife Hillary, and their friends James and Susan McDougall. The Resolution Trust Corporation’s investigation into the failure of Madison Guaranty Savings and Loan, owned by the McDougalls, led to examining that failure’s connection to Whitewater.

These investigations were live when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court on June 22, 1993, and when the Senate confirmed the nomination on August 3, 1993. No one said a word about pending investigations affecting the confirmation process.

In January 1994, Attorney General Janet Reno appointed special counsel Robert Fiske to investigate the Whitewater transactions. In May 1994, he issued a grand-jury subpoena to both Bill and Hillary Clinton, demanding documents related to the Madison Guaranty failure.

On May 17, 1994, Clinton nominated Judge Stephen Breyer to replace Justice Harry Blackmun on the Supreme Court. The Judiciary Committee held a hearing on July 12-14, and the full Senate voted 87-9 to approve the nomination on July 26. Again, no one suggested that the confirmation process should be changed in any way to accommodate this investigation.

In other words, Clinton appointed not one, but two, Supreme Court Justices while he was under investigation. The second appointment came while he was actually “under subpoena.” If Democrats care as much about precedent as they pretend, this one blows their Mueller-Kavanaugh argument out of the water.

It’s been only a few days since Kavanaugh’s nomination. If this is the quality of the spaghetti being thrown at the wall, it’s going to be a bumpy ride.

Law & the Courts

Amar: A Liberal’s Case for Brett Kavanaugh

Over in the New York Times, Yale law professor Akhil Reed Amar makes a case for Brett Kavanaugh. It begins:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

Amar is a noted constitutional scholar. He is, it should also be noted, quite liberal, and he supported Hillary Clinton in the 2016 election.

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