Law & the Courts

This Day in Liberal Judicial Activism—February 18

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.

Law & the Courts

This Day in Liberal Judicial Activism—February 16

Harry Reid on Capitol Hill in 2016 (Reuters photo: Yuri Gripas)

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

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 will object 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.

Law & the Courts

This Day in Liberal Judicial Activism—February 14

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

Judicial Nominations Update

The White House continues to nominate excellent nominees to fill the ever-increasing number judicial vacancies. Yesterday, President Trump announced his intent to nominate an eleventh wave of judicial nominees, which includes Court of Appeals nominees Andrew Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit), and Mark Bennett (Ninth Circuit).

As the Democratic minority continues its unprecedented insistence on time-consuming cloture votes for nominees—including the numerous judicial nominees who have been reported out of the Senate Judiciary Committee unanimously—the number of judicial nominees awaiting full Senate confirmation votes continues to tick up: presently there are 29 judicial nominees awaiting floor votes. Given that cloture requires 30 hours of debate time for each nominee, the Senate would have to work continuously all day and night for over 36 days straight in order to process all of the pending nominees.

Here is this week’s full update on federal judicial nominations.

Current and known future vacancies: 176

Courts of Appeals: 23

District/Specialty Courts*: 153

Pending nominees for current and known future vacancies: 53

Courts of Appeals: 4

District/Specialty Courts: 49

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

Nominees Awaiting Floor Votes: 29

Courts of Appeals: 3

District/Specialty Courts: 26

Nominees Confirmed by the Senate: 24

Supreme Court: 1

Courts of Appeals: 13

District/Specialty Courts: 10

Law & the Courts

This Day in Liberal Judicial Activism—February 13

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

Scheduled Events (Updated)

I have a busy schedule of engagements this winter and spring. Most relate to Scalia Speaks (the highly acclaimed, and New York Times bestselling, collection of Justice Scalia’s speeches that I’ve co-edited).

I’m posting my current schedule here for two reasons: first, to answer the many inquiries I’m receiving about upcoming Scalia Speaks events; and second, in case you’re interested in arranging an event with me on Scalia Speaks, judicial nominations, or any other topic, to invite you to explore working that into my existing out-of-town trips.

I’ll note that I’ve recently been invited by a leading D.C. law firm to discuss Scalia Speaks at a firm-wide lunch. If there are other D.C. law firms that would be interested in lunches like this, either now or when you have summer associates around, please let me know. I’ll favor invitations that promise strong attendance.

2/13 Legatus Orange County

2/14 Los Angeles/Federalist Society

2/15 Orange County/Federalist Society

2/16 San Diego/Federalist Society

2/20 Atlanta/Federalist Society

3/7 University of Dallas

3/8 SMU/Federalist Society

3/10 Federalist Society student symposium, Georgetown (booksigning only)

3/12 UC Berkeley/Federalist Society

3/13 San Francisco/Federalist Society (judicial nominations/evening)

3/14 San Francisco (private event/noon)

3/14 Silicon Valley/Federalist Society

3/19 D.C. law firm

3/20 Vanderbilt/Federalist Society

3/20 Nashville/Federalist Society

3/21 Houston/Federalist Society

3/21 Houston/St. Thomas More Society

3/22 South Texas College of Law/Federalist Society

3/28 Cincinnati/Federalist Society

3/29 Columbus/Federalist Society

4/5 Akron/Federalist Society

4/5 Case Western/Federalist Society

4/13 Baton Rouge/Federalist Society (judicial nominations)

4/14 New Orleans (American Academy of Appellate Lawyers – judicial nominations)

4/24 Kansas City/Federalist Society

4/25 University of Missouri/Federalist Society

4/26 St. Louis/Federalist Society

6/4 Supreme Court Historical Society

6/7 Denver/Federalist Society

6/7 Colorado Springs/Mountain States Legal Foundation

Law & the Courts

President Trump Announces Nominees to Fifth, Seventh, and Ninth Circuits

Today President Trump announced his eleventh wave of judicial nominees since his Inauguration, which includes nominees to the Fifth Circuit, Seventh Circuit and Ninth Circuit Courts of Appeal.  Below are the links to the bios of these new nominees; I look forward to seeing them move through the confirmation process.

Fifth Circuit:  Andrew Oldham

Seventh Circuit:  Michael Scudder

Seventh Circuit:  Judge Amy St. Eve

Ninth Circuit:  Mark Bennett

Law & the Courts

Who is Andrew Oldham?

Andrew Oldham is President Trump’s nominee to the U.S. Court of Appeals for the Fifth Circuit from Texas.

Age: 39 (approximate)

Current Position: General Counsel, Office of the Governor, State of Texas

Education:

  • B.A., University of Virginia (2001), highest honors
  • M.Phil., University of Cambridge (2002), first class
  • J.D., Harvard Law School (2005), magna cum laude

Judicial Clerkships: Judge David Sentelle, U.S. Court of Appeals for the D.C. Circuit (2005-2006); Associate Justice Samuel Alito, U.S. Supreme Court (2008-2009)

Experience:

  • 2006-2008: Attorney-Advisor, Office of Legal Counsel, Department of Justice (Washington, DC)
  • 2009-2012: Associate, Kellogg, Huber, Hansen, Todd, Evans & Figel (Washington, DC)
  • 2012-2015:  Deputy Solicitor General, Office of the Attorney General, State of Texas (Austin, TX)
  • 2015-January 2018:  Deputy General Counsel, Office of the Governor, State of Texas (Austin, TX)
  • January 2018:  General Counsel, Office of the Governor, State of Texas (Austin, TX)

Notable matters:

  • As Deputy Solicitor General, Mr. Oldham appeared twice before the U.S. Supreme Court on behalf of the State of Texas.
  • Mr. Oldham has been actively involved in representing the State of Texas in its opposition to a 2014 Executive Action on immigration, the Deferred Action for Parents of Americans (“DAPA”), and the expansion of the 2012 Deferred Action for Childhood Arrivals (“DACA”).
  • Mr. Oldham is a frequent speaker and panelist for The Federalist Society.
Law & the Courts

Who is Michael Scudder?

Michael Scudder is President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit from Illinois.

Age: 47 (approximate)

Current Position: Partner, Skadden, Arps, Slate, Meagher & Flom LLP (Chicago, IL)

Education:

  • B.B.A., St. Joseph’s College (1993)
  • J.D., Northwestern University School of Law (1998); Editor-in-Chief, Northwestern University Law Review

Judicial Clerkships: Judge Paul V. Niemeyer, U.S. Court of Appeals for the Fourth Circuit (1998-1999); Associate Justice Anthony M. Kennedy, U.S. Supreme Court (1999-2000)

Experience:

  • 2009-Present: Partner, Skadden, Arps, Slate, Meagher & Flom LLP (Chicago, IL)
  • 2007-2009: General Counsel to the National Security Council; Senior Associate Counsel to the President of the United States (Washington, D.C.)
  • 2006-2007: Counsel to the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
  • 2002-2006: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of New York (New York, NY)

Notable Matters:

  • Mr. Scudder’s practice at Skadden focuses on white-collar criminal defense and commercial litigation. He has represented corporations, corporate boards of directors, and corporate officers in internal and government investigations before the DOJ, the SEC, the FDIC, the IRS and the PCAOB.
  • As an AUSA in Manhattan, Mr. Scudder handled numerous trials and argued several appeals before the U.S. Court of Appeals for the Second Circuit.
  • Mr. Scudder has taught trial advocacy at Northwester University Law School since 2009 and national security law and criminal law at the University of Chicago since 2013.
  • Mr. Scudder is a registered CPA in Illinois and worked for Ernst & Young before attending law school.

Awards: In 2014, Mr. Scudder was recognized for his pro bono work by the U.S. District Court for the Northern District of Illinois. In 2015, Leadership Greater Chicago named Mr. Scudder to its Fellows Program. Mr. Scudder also was named to the Chicago Council on Global Affairs Emerging Leaders Class in 2010.

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