Law & the Courts

Senator Schumer’s Sour Grapes

Senate Minority Leader Chuck Schumer (D-NY) participates in a news conference at the U.S. Capitol, October 1, 2020. (Erin Scott/Reuters)

The Washington Post reports that Senate Minority Leader Chuck Schumer (D., N.Y.) forced the Senate into a brief (and rare) closed session in a last ditch effort to convince Republicans not to proceed with the confirmation of Judge Amy Coney Barrett to the Supreme Court. From the Post:

“The Republican majority is on the precipice of making a colossal and historic mistake,” Schumer said. “The damage it does to this chamber will be irrevocable.”

Schumer painted a party of hypocrisy that had no qualms holding up the nomination of Merrick Garland to the Supreme Court in 2016 and yet is rushing through the confirmation of Barrett just over a week before an election in which tens of millions of Americans have already voted.

To Republicans, Schumer said, “You don’t have the right to argue consistency when you’re doing what you’re doing now.”

“The majority has trampled over norms, rules, standards, honor, values, any of them that could possibly stand in its monomaniacal pursuit to put someone on the court who will take away the rights of so many Americans,” Schumer said.

This is all a bit rich coming from Senator Schumer. Let’s consider some history. Prior to his arrival in the Senate, senators were generally reluctant to openly oppose judicial nominees on ideological grounds, but Schumer worked to change that. He enthusiastically supported a blockade of Bush appellate nominees and rejected President Bush’s appeal for a presumptive confirmation schedule.

Once Republicans retook the Senate, Schumer pushed for the repeated filibusters of President Bush’s nominees and, even after the “Gang of 14” deal, continued in his attempts to use this obstructionist tactic.

Schumer led an unsuccessful effort to filibuster confirmation of Justice Samuel Alito to the Supreme Court. Afterwards, in a 2007 speech to the American Constitution Society, he proclaimed he should have done even more to block Alito’s confirmation, and argued that the Senate should not confirm any additional Bush nominees to the Supreme Court should any more vacancies arise. In his view, senators should seek to prevent judicial confirmations that might tilt the balance of the Court in a way they do not like, including by simply refusing to confirm them – something he would conveniently forget in 2016.

Senator Schumer did not think both parties should have recourse to the same tools of obstruction, however. When Senate Republicans started filibustering some of President Obama’s appellate nominees he eagerly joined then-Senate Majority Leader Harry Reid’s decision to go nuclear, even though Republicans had (at that point) not blocked any more Obama nominees than Democrats had blocked Bush nominees (five each). No matter. The filibuster was gone, and three of Obama’s five blocked nominees were confirmed (all to the D.C. Circuit).

During the closed session, Senate majority leader Mitch McConnell (R., Ky.) rebuked  Schumer for his short memory: “I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.” There is no question that McConnell upped the ante over the past four years. One might say he hit back twice as hard. Nonetheless, if Schumer is unhappy, he should consider his role in getting the Senate to this point.

Law & the Courts

To the Senate Floor!

Senate Judiciary Committee Chairman Lindsey Graham attends a Senate Judiciary Committee meeting to consider authorization for subpoenas relating to the Crossfire Hurricane investigation on Capitol Hill, June 11, 2020. (Erin Schaff/Pool via Reuters)

Yesterday the nomination of Judge Amy Coney Barrett to the Supreme Court cleared another hurdle as the Senate Judiciary Committee voted to report her out to the full Senate. The vote predictably occurred along party lines, with all twelve Republicans present and voting for her at the Committee’s executive-business meeting.

In fact, the committee vote to report her out was unanimous, thanks to the decision of all ten of its Democratic members to boycott it. That showed unbridled contempt for the nominee, their colleagues, and the people they represent.

At last week’s business meeting, the committee had scheduled a vote on the Barrett nomination for 1 p.m. yesterday, but since the Democrats ultimately did not participate at all, Chairman Lindsey Graham obtained the consent of his present colleagues to go ahead with a vote in the morning instead.

Now the full Senate’s debate on the nomination can proceed. Majority Leader Mitch McConnell is expected to file a cloture motion during Senate floor proceedings today. Cloture is a procedure by which senators can limit the time it takes to consider a matter and force a vote, in this case for confirmation. Once filed, the cloture motion itself receives a vote after two days of Senate session.

Under McConnell’s anticipated schedule, which includes Senate floor proceedings through the weekend, a vote on cloture will occur on Sunday. Once cloture is invoked, which for judicial nominations requires only a simple majority of senators voting, additional consideration of the nomination will be capped at 30 hours. McConnell has announced that the floor vote on Judge Barrett’s confirmation will then take place on Monday, October 26.

Yesterday’s business meeting did not transpire without a stunt. All ten of the boycotting Democratic committee members filled their empty seats with large photos of people they maintain would be hurt by the demise of Obamacare — and, by innuendo, by Barrett. Call it demagoguery by proxy.

It was no more effective than demagoguery in person. Recall that from the outset of this process, Democrats threw out one lame argument after the other to try to stymie the nomination, disregarding history to make baseless arguments against filling the seat altogether and invoking the coronavirus even as they willingly conducted other Senate business during the pandemic.

None of those arguments stuck. And during Judge Barrett’s hearings last week, Democrats could not lay a glove on Barrett’s qualifications or her actual record, efforts to distort the latter notwithstanding. The nominee fielded hostile and repetitious questions with poise and patience — like previous nominees, refusing to take positions on issues that may come before the Court.

“I’ve been here a while, and I’ve never seen anyone more capable than Judge Barrett on the law,” Chairman Graham observed yesterday. He also noted the marginalization of conservative women, which Senators Joni Ernst and Marsha Blackburn had previously highlighted during this process. “It’s moments like this where you can tell young conservative women there’s a place at the table for you.”

Obviously, not every senator feels that way. For all of Judge Barrett’s stellar qualifications, her decades of hard work, and her unflappable grace and brilliance throughout this process, at the end of the day, the Democrats gave her the back of the hand.

Their petulant boycott showed the exact opposite of the traits of the nominee who — thank goodness — they were unable to stop.

Law & the Courts

Ninth Circuit Judge Ryan Nelson on Limiting Nationwide Injunctions


I called attention last month to the Ninth Circuit’s divided panel ruling in Ramos v. Wolf, in which the majority ruled in favor of the Department of Homeland Security’s termination of the Temporary Protected Status (TPS) designation of four countries: Sudan, Nicaragua, Haiti, and El Salvador.

Judge Ryan Nelson, who joined Judge Consuelo Callahan’s majority opinion, also wrote a noteworthy concurring opinion (pp. 54-67) “to address two additional errors by the district court, both implicating separation-of-powers concerns: the scope of the administrative record in cases challenging agency action and the advent of the so-called ‘nationwide’ or ‘universal’ injunction.” Here are some excerpts on the universal injunction (citations omitted):

The judiciary, for its part, now regularly issues rulings that govern parties not directly before the court, in disregard of usual constraints on judicial power. In doing so, it can halt an entire executive policy or Congressional mandate with one stroke of the judicial pen, without Congressional authority to do so.

And the executive and legislative branches, for their part, can do little about it. Generally, the government can take advantage of the “non-acquiescence doctrine, under which [it] may . . . relitigate issues in multiple circuits.” Now, however, the government must halt enforcement of its objectives and policies even if it bats .999 in court. If one out of 100 district court judges is willing to declare a statute, rule, or regulation invalid and enjoin its enforcement, the other nine—or even 99—at bats before the judiciary have no effect. This scenario, of course, forces the government to repeatedly seek urgent review before the Supreme Court, resulting in an oft-repeated “familiar pattern.”

The effect of all of this is that there is no time for issues to percolate among the circuits before Supreme Court review.… This lack of percolation has serious consequences for judicial decisionmaking. And it breeds another, more serious problem—that of “forum shopping.” When one judge can halt the implementation of a policy nationwide, the natural inclination is to “shop ‘til the statute, [regulation, or executive order] drops.” This type of litigation conduct, in turn, undermines public confidence in the judiciary and “hinders the equitable administration of laws.” …

Our caselaw repeatedly recognizes that universal injunctions are warranted only in “exceptional cases.” Yet many district courts have done just the opposite, “treat[ing] this exceptional mechanism as a new normal,” granting—and affirming—universal injunctions “reflexively.” This reflexive reaction should be eliminated by recognizing the requirement that universal relief is warranted only when “necessary to give Plaintiffs a full expression of their rights.”

To do so, we must first abandon factors that have nothing to do with that requirement. For example, our cases frequently cite a need for uniformity in the law as a reason to uphold a universal injunction. But disuniformity in the law has nothing to do with the plaintiff’s rights…. Another common justification for universal injunctions in these types of cases—that APA claims can lead to universal vacatur of a rule or action if they are arbitrary or capricious,—also has nothing to do with the scope of relief “necessary to give Plaintiffs a full expression of their rights.” … Once these erroneous justifications are stripped out, universal injunctions should become much rarer.

Law & the Courts

This Day in Liberal Judicial Activism—October 23

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

Law & the Courts

This Day in Liberal Judicial Activism—October 22

Florida Supreme Court Building (Wikimedia Commons)

1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”

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Judicial-Nominations Update

(Bill Chizek/Getty Images)

The big news on the judicial nominations front is, of course, the nomination of Judge Amy Coney Barrett to the Supreme Court. Following her hearings last week, the Senate Judiciary Committee will be holding an executive business meeting tomorrow, when it is expected to vote her nomination out to the full Senate, along with those of four district-court nominees and a federal claims-court nominee. Yesterday, Majority Leader Mitch McConnell filed a cloture motion for Southern District of Ohio nominee Michael Newman, so we expect at least one more judicial confirmation to occur this week.

McConnell has also announced a Senate floor vote for Judge Barrett on Monday, October 26. Upon her confirmation, her Seventh Circuit seat would become vacant. There are no other federal appellate vacancies at this time.

Below is a full update on the status of President Trump’s judicial nominations.

Current and planned future vacancies: 68

Supreme Court: 1

Courts of Appeals: 1

District/Specialty Courts*: 66

Pending nominees for current and known future vacancies: 41

Courts of Appeals: 0

District/Specialty Courts*: 41

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor

Nominees Awaiting Floor Votes: 13

Courts of Appeals: 0

District/Specialty Courts*: 13

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 0
  • # of pending nominees originally nominated > 500 days ago: 0
  • # of pending nominees originally nominated > 400 days ago: 0
  • # of pending nominees originally nominated > 300 days ago: 13

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 140

Supreme Court: 0

Courts of Appeals: 23

District/Specialty Courts*: 117

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day225

Supreme Court: 2

Courts of Appeals: 53

District/Specialty Courts*: 170

* Includes the Court of Federal Claims, Territorial Courts, and the International Trade Courts

All Article III Nominees Confirmed by the Senate since Inauguration Day: 218

Supreme Court: 2

Courts of Appeals: 53

District/International Trade Courts: 163

Law & the Courts

Dissent from En Banc Fourth Circuit Order Allowing State Agency to Extend Absentee Deadline


By a vote of 12 to 3—with, to my surprise, all three of President Trump’s appointees in the majority—the en banc Fourth Circuit today (in Wise v. Circosta) denied the request by Republican legislators in North Carolina for emergency injunctive relief barring the state board of elections from extending by six days its deadline for the receipt of absentee ballots for the upcoming election.

Here are excerpts from the opening of the joint dissent of Judge Wilkinson and Judge Agee, joined by Judge Niemeyer (some citations simplified or omitted; underlining added):

We dissent from the court’s grant of a hearing en banc in this case and the failure of the court to grant appellants’ motions for injunctions against the North Carolina State Board of Elections pending appeal. Because of this case’s importance, we judge it is necessary to lay out our reasoning with clarity. This course is necessary in order to draw attention to the accelerating pace of pre-election litigation in this country and all the damaging consequences ensuing therefrom.

Here, as in Andino v. Middleton (U.S. Oct. 5, 2020), we are faced with nonrepresentative entities changing election law immediately preceding or during a federal election. In making those changes, they have undone the work of the elected state legislatures, to which the Constitution clearly and explicitly delegates the power to “prescribe[]” “[t]he Times, Places and Manner of holding Elections.” The Constitution does not assign these powers holistically to the state governments but rather pinpoints a particular branch of state government—“the Legislatures thereof.” Whether it is a federal court—as it was in Andino—or a state election board—as it is here—does not matter; both are unaccountable entities stripping power from the legislatures. They are changing the rules of the game in the middle of an election—exactly what Purcell v. Gonzalez, 549 U.S. 1 (2006), counsels against. By the time the Board changed the rules, voters had cast over 150,000 ballots in North Carolina.

Let’s understand the strategy that is being deployed here. The status quo is the election law enacted by the North Carolina General Assembly. The Constitution grants state legislatures that power. Principles of democratic accountability reinforce it. The fair notice to all voters of election ground rules well in advance of Election Day commend it.

Then along come the disruptive efforts of federal courts or, in this case, a state election board to upend the set rules right in the middle of an election. The disruptors then hail their action as the new status quo, which is (the irony of this is rich) claimed to be beyond any power of disturbance.

It takes no special genius to know what this insidious formula is producing. Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.

Only by repairing to state legislative intent can we extricate ourselves from this debilitating condition. The statutes of state legislatures are our sole North Star. When, as here, the plain wording of those enactments is transgressed, the entire body politic pays a grievous price. In the service of policy objectives, the majority is stripping state legislatures of the responsibility our founding charter has assigned them. And in so doing, it has encouraged others to regard state statutes as little more than advisory and for pre-election litigants fair game….

As for Scarnati v. Boockvar (U.S. Oct. 20, 2020), where a stay was denied by the Supreme Court on a 4-4 vote: the circumstances here are materially different. For one thing, the petition in Boockvar was brought to the court by representatives of a single house of the Pennsylvania legislature, whereas here representatives of both houses are united in their petition before the courts. In addition, the questionable circumstances that plainly indicated a state agency’s subversion of the state legislature’s intent were not present in the Pennsylvania case. The agency’s extension of the statutory receipt deadline for mailed absentee ballots was twice as long as in the Pennsylvania suit. Nor did the Pennsylvania action involve the elimination by an agency of a statutory witness signature requirement. In short, this case presents a clean opportunity for the Supreme Court to right the abrogation of a clear constitutional mandate and to impart to the federal elections process a strong commitment to the rule of law.

Allowing the Board’s changes to go into effect now, two weeks before the election and after half a million people have voted in North Carolina, would cause yet further intolerable chaos. Thus for the reasons that follow, we dissent and would grant the request for an injunction pending appeal. We urge plaintiffs to take this case up to the Supreme Court immediately. Not tomorrow. Not the next day. Now.

In a separate dissent, Judge Niemeyer points out that the case “was originally assigned to a panel, but the work of the panel was hastily preempted by an en banc vote requested by the panel’s dissenter after the panel majority had shared its views but before those views could be published.”

Law & the Courts

Erwin Chemerinsky’s Obstinate Bad-Faith Caricature of Originalism


Berkeley law school dean Erwin Chemerinsky’s constitutional views can blow with the political winds. For example, he supported the filibuster of Samuel Alito’s Supreme Court nomination in 2006 (Chemerinsky, Democrats Must Use the Filibuster to Block Alito, The Herald-Sun (Durham, NC), Jan. 29, 2006); reversed course in 2016 when the Scalia vacancy was pending and adopted the “silly” and “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on President Obama’s nomination of Merrick Garland (a duty that would render the filibuster constitutionally impermissible); and then reversed course yet again in February 2017 when he called for Senate Democrats to filibuster the nomination of Neil Gorsuch.

But on one matter Chemerinsky has been obstinately consistent: his bad-faith caricature of originalism. His New York Times op-ed today against the confirmation of Amy Coney Barrett is very much a copy-and-paste repeat of his February 2017 op-ed.

Chemerinsky makes a hodgepodge of arguments, and I’m not going to try to address them all. But let me pick out a few:

1. Chemerinsky contends that originalism “would mean that Brown v. Board of Education was wrongly decided.” He doesn’t inform his trusting readers that prominent originalists (including Michael McConnell and Robert Bork) have argued otherwise or that Judge Barrett herself testified that she had said “in lectures that Brown was correct as an original matter.” His lead evidence in support of his contention—that the “same Congress that voted to ratify [sic*] the 14th Amendment … also voted to segregate the District of Columbia public schools”—is wrong (and would be of dubious relevance if it were right). As I wrote in this essay fifteen years ago:

[T]he 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress—the 39th—that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. As the brilliant scholar … Michael McConnell explains in his 1995 Virginia Law Review article “Originalism and the Desegregation Decisions”: “At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed).” In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

2. Chemerinsky contends that Chief Justice John Marshall’s landmark opinion in McCulloch v. Maryland (1819) amounts to a “rejection of originalism.” But as Justice Scalia explained more than thirty years ago, Marshall made his famous statement that “we must never forget that it is a Constitution we are expounding” in the context of construing Congress’s powers. As Marshall put it (emphasis added):

The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

In short, Marshall, who explicitly invokes the “framers” three times, is making an originalist argument against construing Congress’s “great powers” narrowly. He is arguing that it is the processes of representative government that enable our constitutional system “to endure for ages to come” and “to be adapted to the various crises of human affairs.” He is thus rejecting the modern living-constitutionalist project of inventing supposed constitutional rights that prevent the processes of representative government, both in Congress and in the states, from adapting to changing circumstances.

The broad play that originalism gives to the democratic processes also fully answers Chemerinsky’s argument that “it is a myth to think that even identifying an original understanding can solve most modern constitutional issues.” His argument probably has less force against the dominant “original meaning” version of originalism than against the “original understanding” version. In any event, in instances in which originalism can’t “solve” a constitutional issue, judges should defer to democratic enactments, not impose Chemerinsky’s favored policy.

3. Chemerinsky descends into utter absurdity when he makes this argument:

[U]nder the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that [the] original understanding was that only men could hold these offices.

The Constitution in several instances uses the pronoun “he” for the president and vice president. But, as Bryan Garner’s A Dictionary of Modern Legal Usage puts it (and as I would have thought would be common knowledge), the “traditional view” in English usage, dominant at the time of the Framing up into the 1970s, “was that the masculine pronouns are generic, comprehending both male and female.” It’s one thing to decry this convention; it’s another thing to deny it; and it’s quite something else yet to seem to be oblivious to it. Yet Chemerinsky manages that third option.

Chemerinsky also ignores the actual eligibility criteria that the Constitution sets forth for the president (and, derivatively, for the vice president):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. [Emphasis added.]

Nothing in these criteria requires that the president be male. On the contrary, any “Person” who meets those criteria is eligible.

In asserting that the “original understanding was that only men could hold these offices,” Chemerinsky evidently confuses who he thinks the Framers subjectively expected would serve as president and vice president with the entirely different question of what the text of the Constitution means.

4. Clipping one sentence out of context, Chemerinsky falsely contends that Judge Barrett’s “scholarly writings suggest she would have no hesitation in overruling” non-originalist precedents. As Barrett testified at her hearing (and as I have explained repeatedly in response to similar distortions), her writings embrace an entirely conventional view of stare decisis that takes into account such factors as “reliance interests” and “the cost of upsetting institutional investment in the prior approach.”

5. Chemerinsky understandably obscures what his own alternative to originalism would mean. He wasn’t so coy back in 2016 when he candidly acknowledged that the appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller (2008) and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). And all of that is before Chemerinsky even began briefly sketching his “dream” agenda.

* Congress proposes amendments; state legislatures ratify them.

Law & the Courts

This Day in Liberal Judicial Activism—October 21

(Michał Chodyra/Getty Images)

1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status.

On his death in 1993, a New York Times obituary praises Bazelon for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”

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This Day in Liberal Judicial Activism—October 20

(Michał Chodyra/Getty Images)

1978—President Jimmy Carter signs into law Public Law 95-486, which creates 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Among other things, the law raises the number of Ninth Circuit judges from 13 to 23.

With the aid of Senate Judiciary Committee chairman Teddy Kennedy, Carter will succeed in filling all those seats during his final two years in office. Carter appointees to new seats on the Ninth Circuit will include arch-activists Stephen Reinhardt, Harry Pregerson, Betty B. Fletcher, Warren J. Ferguson, and Mary M. Schroeder. Among the many judges Carter will appoint to new seats on other circuits are Abner Mikva and Patricia Wald (D.C. Circuit), Stephen Breyer (First Circuit), and Boyce F. Martin Jr. (Sixth Circuit).

2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.

Law & the Courts

Noteworthy Sixth Circuit Ruling in Kentucky Abortion Case


On Friday, a divided panel of the Sixth Circuit ruled (in EMW Women’s Surgical Center v. Planned Parenthood) that a district court had improperly enjoined the operation of Kentucky statutory and regulatory provisions that require abortion facilities to have transfer and transport agreements with hospitals and ambulance services. Judge Joan Larsen, joined by Judge Chad Readler, wrote the impressive majority opinion. Judge Eric Clay dissented.

Here’s a brief overview of the majority opinion:

In June Medical Services v. Russo (2020), the five members of the majority disagreed on how the “undue burden” test of Planned Parenthood v. Casey applies. Under the Supreme Court’s rule in Marks v. United States (1977), when no opinion in a Supreme Court case garners a majority, lower courts are to treat as the Court’s holding the position taken by the justice or justices who concurred in the judgment on the narrowest grounds. That means that the Chief Justice’s concurring opinion in June Medical sets forth that case’s holding. (Pp. 12-22.)

Under the Chief Justice’s controlling opinion, the district court should not have attempted to weigh the benefits of abortion regulations against their burdens. We instead need only consider whether a challenged abortion regulation (a) is reasonably related to a legitimate state interest, and (b) imposes a substantial obstacle in the path of a woman seeking an abortion.

The requirements for transfer and transport agreements are reasonably related to the legitimate state interest in determining in advance what duties each party has in an emergency and how the patient’s information will be transmitted from the abortion facility to the hospital. (Pp. 23-26.)

The district court held that the regulations would impose a substantial obstacle by leaving Kentucky without any operating abortion facility. But the district court wrongly assumed that the existing abortion facilities could not avail themselves of quarterly waivers. (Pp. 26-34.)

Law & the Courts

No, Caperton Has No Bearing on a Justice Barrett’s Recusal Obligations


I hesitate to disagree with the great former Fourth Circuit judge J. Michael Luttig. But I respectfully must do so on the question whether the Supreme Court’s 2009 ruling in Caperton v. A.T. Massey Coal Co. has any meaningful bearing on whether Amy Coney Barrett, once appointed as a justice, would have to recuse herself from election-related litigation.

In this Washington Post op-ed, Judge Luttig contends that the Supreme Court’s 2009 ruling in Caperton “would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.”

Let me first highlight two points in Luttig’s op-ed with which I agree. First, he opines that “Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise.” (Folks on the Left citing his op-ed seem to pass over this point.) Second, he describes the 5-justice majority opinion in Caperton as “inartful and mischievous.”

But “inartful and mischievous” as it is, the majority’s opinion in Caperton squarely addresses a “problem [that] arises in the context of judicial elections,” and its Due Process Clause holding is set forth expressly in that context (emphasis added):

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

As the majority sums up the facts, the three million dollars in contributions that Don Blankenship, chairman of A.T. Massey Coal Company, made to the campaign of Brent Benjamin to be elected a justice of the West Virginia supreme court “were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee.”

In rejecting arguments that its holding would have “various adverse consequences … ranging from a flood of recusal motions to unnecessary interference with judicial elections,” the majority stated:

The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

As Luttig points out, Chief Justice Roberts in his dissent raises the question “whether the new probability of bias standard [under the Due Process Clause] is somehow limited to financial support in general elections, or applies to judicial recusal questions more generally.” But it’s one thing for a dissent to point out that the rationale underlying a majority’s holding could conceivably have implications beyond the context that the majority defines. It’s quite another for Luttig to contend that the actual ruling in Caperton—which rests on “all the circumstances of this case,” including the context of judicial elections”—“would seem to apply squarely to Barrett’s recusal decision.”

Further, it seems clear that the Court has already implicitly rejected such an expansive reading of Caperton: The influence that Blankenship had on Benjamin’s election is dwarfed by the influence that every appointing president has in appointing justices and judges. Yet, in the immediate aftermath of Caperton, Justice Sotomayor and Justice Kagan did not recuse themselves from deciding the constitutionality of President Obama’s signature domestic achievement in NFIB v. Sebelius. Nor did any other justice suggest that they had any obligation to do so. I’m also not aware of any scholar of judicial ethics who ever argued that Obama’s role in putting them on the Court (as distinct, say, from Kagan’s role as Obama’s solicitor general in developing the litigation strategy to defend Obamacare) required recusal.

A Justice Barrett should indeed “seriously consider the question” of recusal under 28 U.S.C. § 455 if and when occasion to do so arises. But I don’t see how the Caperton ruling would play any significant role in such consideration.


Law & the Courts

NWLC’s Absurd Attack on Judge Barrett


When a male guard at a county jail, in defiance of the county’s clear policies, repeatedly raped a female inmate, was he acting within the scope of his employment such that he is entitled under Wisconsin law to be indemnified by the county for the damages award that the inmate receives against him?

Litigation makes odd bedfellows. So it is that the National Women’s Law Center, a feminist group dedicated to “fight[ing] for gender justice,” insists that the male prison guard was acting within the scope of his employment when he raped the inmate. For that was the only way to ensure that the inmate was able to recover the $6.7 million award that she received against him. And, much more importantly, after all the other attacks on Supreme Court nominee Amy Coney Barrett have fizzled out, NWLC now desperately seizes on that claim as a way to bash her.

There are lots of good reasons why the opinion rendered more than two years ago in Martin v. Milwaukee County was never mentioned at Judge Barrett’s confirmation hearing last week and never made it onto the hit lists that Barrett’s opponents have been compiling ever since she rose to national attention during her Seventh Circuit confirmation battle three years ago.

In that case, Barrett joined a unanimous panel opinion by Judge Daniel Manion that ruled that the county was entitled to judgment as a matter of law that the guard’s rapes “were outside the scope of employment and not susceptible to statutory indemnification”—in other words, that the district court erred in allowing the jury to decide this question.

Given the misuse that NWLC and others are trying to make of this case, it’s worth noting that the third judge on the unanimous panel was liberal Clinton appointee Robert W. Gettleman.  (Gettleman, a district judge sitting on the panel by designation, has described liberal lion Abner Mikva as “a friend and inspiration to me since I first met him in the late 1960s.”) Further, when the plaintiff requested en banc review of the panel’s decision, not a single judge on the Seventh Circuit called for a vote on the request.

On the legal question in this case, which is a question of Wisconsin law, here’s an extensive excerpt from the panel ruling:

Courts have phrased the scope[-of-employment] test for § 895.46 [the indemnification statute] in slightly different but compatible ways. We distill the test to its essence. An act is not in the scope unless it is a natural, not disconnected and not extraordinary, part or incident of the services contemplated. An act is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer. But an act is in the scope if it is so closely connected with the employment objectives, and so fairly and reasonably incidental to them, that it may be regarded as a method, even if improper, of carrying out the employment objectives. We must consider the employee’s intent and purpose, in light of subjective and objective circumstances….

No reasonable jury could conclude the sexual assaults were natural, connected, ordinary parts or incidents of contemplated services; were of the same or similar kind of conduct as that Thicklen was employed to perform; or were actuated even to a slight degree by a purpose to serve County. No reasonable jury could conclude the sexual assaults were connected with the employment objectives (much less closely connected) or incidental to them in any way. No reasonable jury could regard the sexual assaults as improper methods of carrying out employment objectives. The evidence negates the verdict.

Uncontested evidence at trial demonstrated County thoroughly trained Thicklen not to have sexual contact with inmates. County expressly forbade him from having sexual contact with an inmate under any circumstances, regardless of apparent consent. County’s training warned him that such sexual contact violates state law and the Sheriff’s Office’s mission. County not only instructed him not to rape inmates; it also trained him how to avoid or reject any opportunity or invitation to engage in any sort of sexual encounter with inmates. For example, if an inmate “comes on” to him, he should tell the inmate the behavior is inappropriate, discipline the inmate, and report the incident to a supervisor. Thicklen even answered quizzes demonstrating his understanding. Martin presented no evidence at trial that this training was deficient or that Thicklen did not understand it. Martin failed to offer any evidence the sexual assaults were natural, connected, ordinary parts or incidents of the services contemplated. She presented no evidence from which a reasonable jury could conclude these sexual assaults were similar to guarding inmates. And she presented no evidence from which a reasonable jury could conclude the sexual assaults were actuated in any way by a purpose to serve County.

In short, NWLC’s charge that this opinion is evidence of Judge Barrett’s supposed “extremist beliefs” and “completely disregards the lived experiences of millions of sexual assault survivors” is baseless.

Law & the Courts

This Day in Liberal Judicial Activism—October 18


2017—A divided panel of the Fourth Circuit rules (in American Humanist Ass’n v. Maryland-National Capital Park Comm’n) that Maryland officials violated the Establishment Clause by displaying and maintaining on public property—indeed, “in the center of one of the busiest intersections” in the county—the Bladensburg Peace Cross, “a 40-foot tall Latin cross, established in memory of soldiers who died in World War I.”

In 2019, the Supreme Court will reverse the Fourth Circuit by a vote of 7 to 2 (with Justices Ginsburg and Sotomayor in dissent). Justice Alito’s majority opinion will set forth a “strong presumption of constitutionality” in favor of “retaining established, religiously expressive monuments, symbols and practices.”

Law & the Courts

A Closing Note on Barrett Hearing

Senator Kamala Harris (D., Calif.) speaks virtually during the second day of the Supreme Court confirmation hearings for Judge Amy Coney Barrett on Capitol Hill, October 13, 2020. (Patrick Semansky/Reuters)

I’m not going to add my own lengthy assessment of the Barrett hearing. Very briefly: Judge Barrett was stellar in all respects. Of the other eight Supreme Court confirmation hearings that I have observed closely (going back to RBG’s in 1993), I can’t think of a nominee who performed better.

By contrast, Senate Democrats were dismal—leveling ill-founded charges in a transparent short-term play for Election Day and embracing a results-oriented contempt for impartial decisionmaking.

As you’d expect, Senator Kamala Harris epitomized these flaws. For example, in her final round of questioning, she contended that Barrett had “a pattern of … ruling against workers and in favor of corporations.” The three cases she trotted out in supposed support of this claim—without actually posing a question that Barrett could respond to—were all unanimous panel rulings, each of the first two joined by one of the most liberal members of her court and the third, as she had already explained to Senator Booker, faithfully applying Supreme Court precedent (and not drawing an en banc call from any of her colleagues). Short tweet thread with details here.

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