Law & the Courts

Senator Mazie Hirono is Out of Line

The United States Constitution vests in the Senate the “advice and consent” power to prevent the President from appointing “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity,” as Alexander Hamilton wrote in Federalist No. 76.

Never was this power intended to give Senators the opportunity to engage in cheap and baseless character assassination of highly qualified nominees, which is exactly what Senator Mazie Hirono (D-Hawaii) appears to be preparing for Supreme Court nominee Brett Kavanaugh.

Specifically, Hirono has stated that she will question Kavanaugh regarding the alleged sexual misconduct of former Ninth Circuit Judge Alex Kozinski, for whom Kavanaugh clerked over a quarter century ago.  Hirono wrote in an email, “Alex Kozinski’s relationship with Judge Kavanaugh is a legitimate area of inquiry and I plan to question Judge Kavanaugh on this topic.” She also intends to baselessly ask him whether he has ever sexually harassed women, as she does all nominees.

While Senator Hirono is concerned with creating a spectacle at the hearing next week, here are the facts:

Judge Kavanaugh has a sterling record of hiring, promoting, and mentoring women. 

A majority (25 of 48) of Judge Kavanaugh’s law clerks have been women.  Kavanaugh was also the first judge in the history of the D.C. Circuit to hire four female law clerks in one year.  He has been aggressive in mentoring women and promoting their careers, with the result being that 20 of his female law clerks have gone on to clerk on the Supreme Court.  His former clerks today include professors, prosecutors, public officials, and appellate advocates

Every single one of these highly accomplished women who is not precluded from doing so by her current employer has endorsed Kavanaugh’s candidacy for the Supreme Court, describing him as “oneof the strongest advocates in the federal judiciary for women lawyers.”

In addition to his former law clerks, prominent women, liberals, and feminists have endorsed Kavanaugh’s candidacy.

Kathleen Sullivan, a prominent liberal constitutional scholar, and the first woman dean of one of the nation’s top three law schools, signed a letter supporting Judge Kavanaugh, describing his “well-deserved reputation as an outstanding jurist” and his “unfailing courtesy.”

Lisa Blatt, a Supreme Court litigator and self-described liberal feminist, has endorsed Judge Kavanaugh’s candidacy and encouraged other liberals to as well.  Blatt wrote that her “standard” for an acceptable Supreme Court nominee “is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.”  According to Blatt, “Kavanaugh easily meets those criteria.”

Amy Chua, a Yale Law School professor, wrote a Wall Street Journal op-ed praising Judge Kavanaugh for his mentorship of women and describing him as a “fierce champion of their careers.”  Chua, who has served alongside Kavanaugh for the past 10 years on the Clerkship Committee at Yale Law School is by no means a disinterested observer: Chua’s daughter, was set to begin a clerkship with Kavanaugh this summer before he was nominated to the Supreme Court.  Chua wrote, “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.’”

Finally, there is no evidence whatsoever that Kavanaugh knew of Kozinski’s alleged misconduct.   

Leslie Fahrenkopf Foley, a summer extern in Kozinski’s chambers during the term that Kavanaugh clerked for Kozinski, has said of the Kozinski chambers that year: “It was a completely professional environment, and I never saw or experienced any harassment, nor did I ever feel uncomfortable.”  As for Kavanaugh himself, Foley describes him as “a consummate gentleman.”

Another former female law clerk to Kozinski, Susan Engel, also claimed that the atmosphere in the Kozinski chambers was professional during the year of her clerkship (2000-01).  According to Engel, “At no time during my clerkship, or in the years since, did I see or hear Judge Kozinski sexually harass anyone.”

Since the conclusion of his own clerkship over 25 years ago, Kavanaugh has spent his career on the opposite side of the country from Kozinski, over 3000 miles away.  Many people in much closer proximity to sexual harassers are often completely unaware of the conduct.  Senator Hirono herself can tell you that, having served with former Senator Al Franken on the Senate Judiciary Committee for four years before allegations against him surfaced last December.

The Wall Street Journal wrote in July that these feeble guilt-by-association claims are simply smear tactics.  As his ample record demonstrates, Kavanaugh has worked hard to support and help advance women in a profession that is sometimes reluctant to do so.  Scores of individuals have attested to Kavanaugh’s decency as a human being.  He deserves better.

Law & the Courts

This Day in Liberal Judicial Activism—September 1

(Pixabay)

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge his earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

2017—In its statement of opposition to President Trump’s nomination of Michigan supreme court justice Joan Larsen to a seat on the Sixth Circuit, People For the American Way complains that her campaign website for her recent judicial election stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say” and that judges “are supposed to interpret the laws; they are not supposed to make them.”

PFAW asserts that these elementary principles are “coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people.”

Never mind that Justice Sotomayor used that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” Ditto for statements by countless other Democratic judicial appointees over the years.

Law & the Courts

Wrap-Up on Democrats’ Delusory Document Demands

Over the past six weeks, I’ve written these four extensive posts on Senate Democrats’ demand for the millions of pages of documents that passed through Judge Kavanaugh’s office when he was White House staff secretary (as well as this post on Senate Democrats’ objection to the expedited release of Kavanaugh’s records from his time in the White House counsel’s office). In light of the Left’s failure to muster any serious substantive case against the Kavanaugh nomination, I’m guessing that Senate Democrats will be waxing indignant on this matter at next week’s hearing, so I figured that I would distill (and repeat) some basic points:

1. No Judiciary Committee chairman has ever agreed to a minority party’s document demand that would entail significant delay in the consideration of a Supreme Court nominee.

2. Beyond the background materials that the Senate questionnaire calls for, there is no special category of documents that the committee has deemed to be always essential to its consideration of a Supreme Court nominee. In deciding how to respond to a minority party’s demand for documents, each Judiciary Committee chairman assesses how burdensome the demand is. That’s what then-Chairman Leahy did when he agreed to request Elena Kagan’s White House records. The idea that he would have insisted on those records if they involved months of delay is ludicrous. 

3. There is no precedent for insisting on having the nominee’s “entire record” to review. For starters, if there were such a practice, there would be no reason to limit it to executive-branch materials. Justices Ginsburg, Breyer, Alito, and Sotomayor, for example, all had long judicial records when they were nominated to the Supreme Court. What better way to get insights into their legal thinking than to require them to turn over their confidential case files and emails?

Even as to executive-branch records, the Senate proceeded to confirm Justice Kagan without seeking her files from her tenure as the Obama administration’s Solicitor General—the files that would be most probative of her legal thinking. And on legislative-branch records, the Senate never sought Elena Kagan’s files from her service as special counsel to Senate Judiciary Committee chairman Joe Biden on the Ginsburg confirmation hearing.

4. Judge Kavanaugh has a twelve-year record on the D.C. Circuit. (Kagan had never been a judge.) That record provides ample insight for judging his fitness to serve on the Supreme Court, as the ABA’s unanimous “Well Qualified” rating attests. In addition, the Senate is receiving up to one million pages of documents from Kavanaugh’s tenure in the White House counsel’s office and in the Office of the Independent Counsel, making this by far the largest document production ever for a Supreme Court nominee.

5. The additional millions of pages of staff secretary records are very unlikely to yield any incremental insights into Judge Kavanaugh’s legal thinking. The intensive pre-release review that both former president Bush and the current White House would have to engage in could easily take tens of thousands of hours and many months. (See this post and point 3 of this post for elaboration on the preceding two sentences.) And for what purpose? To inform the judgment of senators like Chuck Schumer who have already determined to oppose Kavanaugh?

6. If Senate Democrats had any genuine interest in particular staff secretary records, they could have limited their request to such records. But (as I discuss in point 1 of this post), they adamantly refused to do so, as they aim to obstruct the Kavanaugh nomination by delay, not to discover that their fantasy allegations (point 2 here) are baseless.

Law & the Courts

ABA Unanimously Awards Kavanaugh Highest “Well Qualified” Rating

Congrats to the left-leaning American Bar Association for playing it straight: Its Standing Committee on the Federal Judiciary has unanimously rated Judge Kavanaugh “Well Qualified” for the Supreme Court. That’s the ABA’s highest rating.

Here’s the ABA’s account of what that rating means (from p. 11 of its “Backgrounder”):

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement. [Emphasis added.]

Have that in mind as Senate Democrats and others on the Left continue to smear Kavanaugh.

Addendum: Senator McConnell reminds us that Senator Schumer and Senator Leahy have proclaimed the ABA’s evaluation to be “the gold standard by which judicial candidates are judge.” So I’m looking forward to their support of Kavanaugh.

Law & the Courts

A Viewer’s Guide to Kavanaugh Hearing

For those of you interested in following next week’s Senate Judiciary Committee hearing on Judge Kavanaugh’s nomination to the Supreme Court, I offer some general day-to-day guidance. (I also encourage you to follow me on Twitter at @EdWhelanEPPC; I expect to be very active there.)

Tuesday, Sept. 4: The hearing is scheduled to begin at 9:30. Don’t expect any questioning by senators on this day. After Chairman Grassley opens the hearing, the day will proceed with opening statements of 10 minutes each by all 21 committee members (11 Republicans and 10 Democrats). So that’s 3-1/2 hours right there, not including lunch and other breaks, overage, and other down time. Kavanaugh will then be introduced to the committee by Condoleezza Rice, Senator Rob Portman, and Supreme Court advocate Lisa Blatt. And the first day will close—probably around 5 p.m.—with Kavanaugh’s opening statement.

Wednesday: First round of questioning begins. Each senator will have 30 minutes, and the questioning will alternate back and forth between Republicans and Democrats and in order of seniority. For those of you eager to watch your favorite (or least favorite) senator in action, that means: Grassley, Feinstein, Hatch, Leahy, Graham, Durbin, Cornyn, Whitehouse, Lee, Klobuchar, Cruz, Coons, Sasse, Blumenthal, Flake, Hirono, Crapo, Booker, Tillis, Harris, Kennedy. The first round will take 10-1/2 hours, so it might not be completed on Wednesday, but I gather that Grassley is going to try. Here’s my rough guess on how questioning will proceed:

Morning: Grassley, Feinstein, Hatch, Leahy, Graham

Afternoon: Durbin, Cornyn, Whitehouse, Lee, Klobuchar, Cruz, Coons, Sasse, Blumenthal, Flake

Evening: Hirono, Crapo, Booker, Tillis, Harris, Kennedy

Thursday: If the first round of questioning doesn’t end on Wednesday evening, it will end early on Thursday. The second round of questioning will then take place, with each senator having 20 minutes. In theory, that could mean another seven hours of questioning, but Republicans will probably waive some or all of their time (and some Democrats might do so as well). If necessary, a third round of five-minute questioning will take place. Kavanaugh’s testimony will finish on Thursday.

Friday: The committee will hear from four panels of witnesses, 28 witnesses in total (listed here). The panels will be ushered in and out very quickly, and nearly no one will be watching at this point.

[I’ve made changes to the original version.]

Education

Harvard Briefs

Branded merchandise is displayed for sale outside Harvard University in Cambridge, Mass., June 18, 2018. (Brian Snyder/Reuters)

Kudos to the Department of Justice for the brief it filed this week against Harvard in the lawsuit where the school has been sued for admissions discrimination against Asian Americans — and to David French for his fine discussion of that brief.

I also want to mention the amicus brief also filed this week against Harvard by Southeastern Legal Foundation, the Reason Foundation, and my own organization, the Center for Equal Opportunity. That brief discussed two studies documenting evidence of Harvard’s discrimination, written by CEO research fellow Althea Nagai.

There is overwhelming evidence that Harvard uses racial preferences against Asian Americans, as the CEO studies and much other evidence show. And it should be borne in mind that, whether or not Harvard discriminates against Asian Americans vis-à-vis whites, it is essentially undisputed that “overrepresented” groups (e.g., Asian Americans and whites) are discriminated against vis-à-vis “underrepresented” groups (e.g., African Americans and Latinos). Therefore, Harvard’s use of racial preferences must pass “strict scrutiny” to be lawful.

That means, in turn, that Harvard must show that there are “compelling” educational benefits in using racial preferences against Asian Americans to limit their numbers and achieve greater student-body “diversity.” Each institution that uses racial preferences must make this showing; it cannot simply cite the Supreme Court’s 2003 decision in Grutter v. Bollinger, since the educational benefits of “diversity” will be different in, say, a graduate physics program than at a law school. In addition to producing evidence of those educational benefits, Harvard must also explain how those benefits are so compelling that they outweigh the obvious costs of discriminating against Asian Americans in this particular context (see list of these kinds of costs here). If the trial court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis other nonwhite groups, it would be even harder to meet this first prong of strict scrutiny, because there will actually be less racial diversity in the student body as a result of the discrimination.

Finally, Harvard must show that using racial preferences against Asian Americans is “narrowly tailored” to achieving those compelling educational benefits. A key element of narrow tailoring is the consideration of race-neutral alternatives. Once again, Harvard’s own internal research indicates that this test is failed. And given the wide variety of racial and ethnic backgrounds in its applicants, Harvard could and should consider the perspectives and experiences of individual applicants without using race as a proxy for those perspectives and experiences. Here again, if the court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis “underrepresented” nonwhite groups, strict scrutiny is even more difficult to pass.

Look at it this way: Harvard has been using racial preferences for at least 40 years: Justice Powell’s 1978 opinion in the Bakke case discusses them. Yet rather than phasing them out, as the Court in Grutter expected it would do, the principal change Harvard has made over the past 40 years is to dramatically ramp up their use against Asian Americans.

Law & the Courts

Breaking Free: Eighth Circuit Affirms ‘Sea Change’ in Establishment Clause Jurisprudence

Outside the Supreme Court in Washington, D.C. (Pixabay)

Forty-five years ago, the Supreme Court broke the Establishment Clause in Lemon v. Kurtzman. Four years ago, it abandoned Lemon’s ahistorical aberration in Town of Greece v. Galloway. But despite decades of calling on the Supreme Court to free them from Lemon, federal appellate courts have in the last four years developed a type of judicial Stockholm Syndrome that has kept them from accepting the Supreme Court’s rescue by means of Town of Greece.

That changed on Tuesday. In a 2-1 opinion where Lemon was conspicuous only by its absence, SCOTUS shortlister Judge Raymond Gruender of the Eighth Circuit found that Town of Greece set “an unequivocal directive” that the Establishment Clause “must be interpreted by reference to historical practices and understandings.” Judge Gruender recognized that this directive was a “major doctrinal shift” from past free-floating judicial Establishment Clause tests, which were unmoored from history and epitomized by Lemon. My firm, the Becket Fund for Religious Liberty, had urged just such an approach in the friend-of-the-court brief we filed in the appeal.

Judge Gruender also recognized that his opinion’s adherence to Town of Greece broke with the recent decisions of other federal circuits. For instance, panels in the Sixth, Seventh, and Tenth Circuits have failed to fully pull free of Lemon. Parting ways with them, Judge Gruender instead cited to and agreed with Judge Alice Batchelder’s 2015 Sixth Circuit concurring opinion that recognized Town of Greece’s “major doctrinal shift” as “a sea change in constitutional law.” He likewise relied on last year’s dissent by Judges Paul Kelly and Timothy Tymkovich from the en banc Tenth Circuit’s failure to reconsider an Establishment Clause ruling that was more faithful to Lemon than Town of Greece. And earlier this year, Judge Frank Easterbrook broke from a Seventh Circuit opinion that “d[id] not feel free to jettison” Lemon and thus failed to ground its analysis in “what the phrase ‘establishment of religion’ meant in the Eighteenth Century, when those words were adopted.”

Now that the Eighth Circuit is the first court of appeals to adopt this approach, other appellate majorities may soon feel free to follow. For instance, Judges Hull, Newsom, and Royal recently heard an Eleventh Circuit display case concerning a cross in a Pensacola public park that was struck down by the district court. The panel sounded very interested in Town of Greece’s application at the oral argument held in May. This should come as little surprise given Judge Roger Vinson’s district-court opinion openly stating that if he were not (in his view) bound by Lemon, he would have come to the opposite conclusion under Town of Greece’s historical approach. Similarly, Judges Hardiman, Krause, and Bibas of the Third Circuit will be hearing another Establishment Clause display case next Friday, where again the district court opined that Town of Greece would bless what Lemon condemned.

So the current split between the Eighth Circuit’s adherence to Town of Greece and the Sixth, Seventh, and Tenth Circuits’ loyalty to Lemon may soon be wider and sharper. And that would mean that the Supreme Court would have to step in.

But the Supreme Court may have the opportunity to resolve the matter even sooner than that. Pending on the Court’s docket is another cross case that involves the use of the Establishment Clause to ban religious imagery from public. If the Court takes on that case, it could and should use it to put Lemon to rest for good.

Law & the Courts

This Day in Liberal Judicial Activism—August 30

(Luminastock/Dreamstime)

1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.” Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.”

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees. Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…  Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism: According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.” Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court. Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.

Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation. In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks.

Indeed, as of 2018, Ginsburg will have hired only one black law clerk during her Supreme Court years. So over her career of four decades on the bench, that’s a single black law clerk out of her total of 140 or so law clerks.

A White House Counsel for the Ages

Today the White House confirmed that White House Counsel Don McGahn will be leaving his position shortly after the expected confirmation of Brett Kavanaugh to the Supreme Court. His tenure has been momentous. Most visibly, following the confirmation of Neil Gorsuch and assuming the probability that Kavanaugh is confirmed, McGahn will have shepherded the selection and confirmation to the high court of two of the best qualified, committed constitutionalists on the federal bench—judges who recognize that the best way unelected judges can safeguard representative democracy is to interpret the Constitution according to the original public meaning of its text.

At least as remarkable has been that, even amid the difficult process of filling two Supreme Court vacancies, 59 other Article III judgeships have been filled to date. This number includes the successful confirmation of 26 circuit court judges, which already surpasses by four the previous record for a president’s first two years (22 under the first President Bush) for court of appeals confirmations—and we are still almost five months away from the two-year mark of the Trump administration. Equally important, these circuit judges have with unprecedented consistency been very high caliber nominees who share a commitment to originalism and textualism.

Collectively, whether looking at the Supreme Court specifically or at federal judgeships generally, no administration since the advent of modern constitutional debate has had a more impressive track record on judicial nominations than the Trump administration with Don McGahn’s stewardship. And consider that this occurred against the backdrop of a razor-thin Republican majority in the Senate, with Senate Democrats doing all they could to obstruct the process through the unprecedented abuse of cloture and blue slips.

McGahn has also helped to oversee President Trump’s much needed reining in of the administrative state. For years, the federal bureaucracy has been aggrandizing the power of its own unelected officials, too often acting like a virtual “fourth branch” of government and dealing a blow to the tripartite government our Constitution actually authorizes. Since last year, the administration has pursued a number of measures to curtail that trend, perhaps most prominently its efforts to roll back the notoriously profligate issuance of regulations by agencies, both through executive orders and by bringing to life the largely unused Congressional Review Act. Also significant: ending the use of court settlements and consent decrees to benefit third-party organizations not involved in litigation or to find back-door methods to impose nationwide rules; reclaiming accountability so that federal officials who underperform or engage in misconduct can more easily be removed; reducing inefficiency and increasing transparency in the relationship between labor unions and the civil service; and shifting the selection of administrative law judges from career bureaucrats to agency heads directly accountable to the president.

Increasing accountability to the chief executive and other elected officials means increasing accountability to the people. Appointing originalists and textualists to the federal bench bodes well for preserving the individual rights and government structure on which our freedom depends for protection. All of this is a victory in the making for the Constitution and the rule of law. Don McGahn can stand proud for his role in helping to bring it about.

Law & the Courts

NYT Magazine Article on Trump’s Appellate Appointments

Sunday’s New York Times Magazine has a very long and interesting article on (as the online title puts it) “How the Trump Administration Is Remaking the Courts.”

The article focuses in particular on President Trump’s tremendous success in appointing judges to the federal courts of appeals. It recognizes the critical roles that outgoing White House Counsel Don McGahn, Senate majority leader Mitch McConnell, Leonard Leo, and the Federalist Society have played in that success. (I would also give lots of credit to Senate Judiciary Committee chairman Chuck Grassley.) It also highlights that “Trump’s appointees have tended to be unusually well credentialed and conservative.” (The ABA, no friend of conservatives, rated 23 of Trump’s 26 appointees, or 88%, “well qualified”; by contrast, it gave that rating to only 11 of President Obama’s 16 appellate appointees—69%—during his first two years in office.)

I won’t try to summarize the article here—the interested reader should read it—but instead offer some dissenting observations and corrections.

1. In my judgment, the article gives an exaggerated impression of the long-term impact of the appellate appointments that have been made so far—24 as of the time the article was written, 26 as of Sunday. Yes, the Trump White House has set a record for a president’s first two years. But 26 judges amounts to barely 13% of the 179 federal appellate seats. Further, as Brookings scholar Russell Wheeler explains in “Trump has reshaped the judiciary but not as much as you might think,” most of Trump’s appointments (16) have been to seats previously held by Republican appointees, so they have maintained (and extended in time), rather than altered, the composition of the various courts of appeals.

The article asserts that Trump has “flipped” the Sixth and Seventh Circuits from liberal to conservative and that he is “on the verge” of flipping the Eighth Circuit. But all three of those courts already had more Republican appointees (the article’s proxy for conservative) than Democratic appointees when Trump took office.

The article also asserts that “[e]ven circuits that are decidedly liberal are undergoing significant changes” and quotes a source on the value of having “between two and four really good, high-octane intellectual conservative jurists” on the liberal Second and Ninth Circuits. But so far Trump has made no appointments to the Second Circuit, and his only appointee to the Ninth Circuit, Mark Bennett in Hawaii, is widely perceived as moderate if not liberal.

The article includes a hilariously misleading graphic that uses gavel handles of various lengths to depict how Trump’s record compares to those of recent presidents. Trump’s gavel handle is ten times the length of Obama’s, but only because the graphic uses a baseline of 14 judges rather than zero.

In short, the Trump White House is off to an excellent start, but this strong performance needs to be sustained over several more years in order to effect the “sweeping transformation” of the federal appellate courts that the article’s subhed touts.

2. The article completely misses one big part of the story—how Harry Reid’s abolition of the filibuster for lower-court nominees in November 2013 was essential to the success that Trump has enjoyed. As I explained in my National Review article in January on Trump’s first year of judicial appointments, the abolition of the filibuster meant that the path to confirmation in a Senate controlled by the same party as the president could be fairly certain and quick, and “that promise of a smooth path encouraged high-quality conservatives—the very folks who might reasonably have feared a filibuster and been most reluctant to put their careers in indefinite limbo—to offer themselves as candidates.”

The article discusses Reid’s abolition of the filibuster more than halfway through, but it doesn’t connect that change to the significant developments it discusses early on: McGahn’s decision to go with nominees who would be “really hot” rather than low-profile; his “unprecedented degree of control over judicial appointments” and his unwillingness to engage in “horse-trading” with senators; and the “unusually well credentialed and conservative” profile of the nominees.

3. I think that the article’s account of the ascendancy of “the judicial philosophies of originalism and textualism” among legal conservatives gets some important things wrong. The article asserts that those philosophies “hold that judges should interpret the Constitution according to the meaning of its plain text.” (Emphasis added.) But originalism and textualism do not maintain that the text of the Constitution (or of other laws) is in all respects “plain.” Often the meaning of legal text is obscure. Originalism and textualism set forth a methodology for discerning the meaning of text that is not plain. (For similar reasons, I think that the article’s claim that originalists and textualists believe that “Unless Congress explicitly mandates it …, agencies can’t do it” is wrong.)

The article also implausibly claims that originalists and textualists “didn’t achieve critical mass in the larger conservative legal movement until 2012.” But originalism and textualism have been ascendant in the conservative legal thinking since the early 1980s, thanks to Justice Scalia, Judge Bork, Attorney General Ed Meese, and others. The article instead conflates originalism with the libertarian variant of originalism and seems not to recognize that there has long existed another variant of originalism in which a judge, after deploying the originalist tools, may deem a statute unconstitutional only if it clearly conflicts with the meaning of a constitutional provision. That variant might fairly be called judicial-restraint originalism, but it differs markedly from any concept of judicial restraint that is unmoored from originalism.

4. With regard to the three D.C. Circuit nominees pending in 2013, the article asserts that Senate Republicans “didn’t object to the nominees themselves; all three were considered moderate and eminently qualified.” That assertion is flat-out absurd as applied to Cornelia Pillard. (I think it’s wrong as to the other two as well, but I gather that every liberal is a “moderate” in the eyes of the New York Times.)

5. The article has a very long account of the battle over a Seventh Circuit seat in Wisconsin. I explained back in 2011 how Senator Ron Johnson’s refusal to return a blue slip on Obama’s nomination of law professor Victoria Nourse was, contrary to what the article suggests, well within the bounds of Senate practice.

The article also fails to note the mystery of why the Senate Judiciary Committee, under then-chairman Pat Leahy, didn’t hold a hearing on her nomination promptly after Obama first nominated her in July 2010 (when both of Wisconsin’s senators were Democrats). I’ll refrain from commenting further, but will observe that the reason may well have persisted throughout the pendency of her nomination.

As evidence that Nourse was (what else?) a “moderate,” the article states that “besides working for [then-Senator] Biden, Nourse worked on the Judiciary Committee with Orrin Hatch, a Utah Republican.” Note the wordplay: she “worked … with” Hatch, not for him. I’m really not sure what this means. I suppose that I, as a Judiciary Committee staffer, at times “worked with” Senators Biden, Leahy, Kennedy, etc., or their staffs, so does that mean I’m a “moderate”?

Law & the Courts

President Trump’s 17th Wave of Judicial Nominees

Yesterday the White House announced its 17th wave of judicial nominations, which includes President Trump’s nominee to the U.S. Court of Appeals for Fourth Circuit, Allison Jones Rushing.  Ms. Rushing, currently an appellate attorney for Williams & Conn0lly LLP, is a former law clerk to Justice Clarence Thomas, Justice Neil Gorsuch (in his second year as a judge on the Tenth Circuit), and Judge David Sentelle of the D.C. Circuit.  I look forward to seeing yet another outstanding nominee being confirmed to the federal bench.

Here is my post detailing Ms. Rushing’s bio: Who is Allison Jones Rushing?

Law & the Courts

Who is Allison Jones Rushing?

Allison Jones Rushing is President Trump’s nominee to the U.S. Court of Appeals for the Fourth Circuit from North Carolina.

Age:  36 (approximate)

Current Position:  Partner, Williams & Connolly LLP (Washington, D.C.)

Education:

  • B.A., Wake Forest University (2004); summa cum laude; Phi Beta Kappa
  • J.D., Duke University Law School (2007); magna cum laude; Order of the Coif; Smith-Mordecai Scholar (full-tuition scholarship); Editor, Duke Law Journal; Moot Court Board

Judicial Clerkships: Judge Neil Gorsuch, U.S. Court of Appeals for the Tenth Circuit; Judge David Sentelle, U.S. Court of Appeals for the D.C. Circuit; Associate Justice Clarence Thomas, U.S. Supreme Court

Professional Experience:

  • 2011-Present: Associate and Partner, Williams & Connolly LLP (Washington, D.C.)

Career Notes:

  • Rushing has argued cases before the various federal circuit courts of appeal and state appellate courts. She has also briefed cases before the U.S. Supreme Court.
  • She has experience in a wide array of substantive areas, including complex civil and criminal litigation, in both the federal district and appellate courts.

Honors:

  • Legal 500 has recognized Ms. Rushing for her “excellent writing advocacy skills.”
  • Rushing has been named a “Rising Star” by Super Lawyers.
  • The National Law Journal has recognized Ms. Rushing’s oral advocacy in the federal courts of appeals.

Biographical Notes:

  • Rushing hails from East Flat Rock, North Carolina.

 

Law & the Courts

Distorting Kavanaugh’s Judicial Record

Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill in Washington, D.C., July 10, 2018. (Leah Millis/Reuters)

In the final days before Supreme Court nominee Brett Kavanaugh appears before the Senate Judiciary Committee, groups opposing his nomination are publishing reports and other evaluations of his record. One of those groups, the Alliance for Justice, has posted what it calls a “fact sheet.” But the items posted are most certainly not facts.

This sheet reflects the Left’s totally political view of the courts. When it comes to court decisions, they care less about upholding the rule of law and more about who wins, who loses, which groups are favored, and which political interests are advanced. Their mantra is: The political ends justify the judicial means. Never mind what the law says, judges are supposed to deliver the political goods no matter what.

In 2005, when President George W. Bush nominated John Roberts to be chief justice, Senator Ted Kennedy (D., Mass.) said that the “real question” is “whose side is Judge Roberts really on?”

The AFJ “fact sheet” devotes itself to providing often fanciful answers to Kennedy’s question. For example, it claims that Kavanaugh “would protect the wealthy and powerful over rights of all.” They mention several cases that Kavanaugh has handled, but offer not a word about what the facts, the issues, or the law might have been in those cases. All they offer is the fact that they don’t like the way he decided those cases. It seems that objective facts, the issues, and the law don’t matter — it’s whose side the judge is really on!

The fact that Kavanaugh “dissented from rulings upholding the Affordable Care Act” proves, says the AFJ, that he would protect the wealthy and powerful. The first ruling in this category was in a case titled Seven-Sky v. Holder, a constitutional challenge to Obamacare’s mandate that individuals buy government-approved health insurance. The court upheld the Obamacare insurance mandate as a valid exercise of Congress’s power to regulate interstate commerce.

Kavanaugh believed that Obamacare’s penalty for not buying health insurance could instead be characterized as a tax. Another federal law, the Anti-Injunction Act, prohibits challenging tax statutes until after the taxes are imposed and collected. For that reason, he wrote, this lawsuit was premature. As we all know, the Supreme Court later upheld Obamacare by doing what Kavanaugh did, treating the penalty as a tax.

The AFJ also claims that Kavanaugh would protect the wealthy and powerful, using as proof his dissent in Sissel v. U.S. Dept. of Health & Human Services (2015). This challenge to Obamacare argued that it was a “bill for raising revenue” that the Constitution requires must originate in the House of Representatives. A three-judge panel concluded that Obamacare was not a “bill for raising revenue” and the full court voted against reconsidering that decision.

Joined by three other judges, Kavanaugh thought that the full court should have reconsidered the case. He believed that Obamacare is indeed a bill for raising revenue, but that it properly originated in the House of Representatives. In other words, while he disagreed with one reason for upholding Obamacare, he would have upheld Obamacare for a different reason.

Since when does arguing that a challenge to Obamacare should be dismissed and offering two different theories that could be used to uphold Obamacare amount to “dissent[ing] from . . . upholding” Obamacare? Does yes also mean no and up also mean down?

One of Kavanaugh’s D.C. Circuit colleagues, Judge Harry Edwards, wrote about their court in 1998 and offered a warning that applies fully to groups putting out such nonsense today: “Giving the public a distorted view of judges’ work is bad for the judiciary and the rule of law.”

Law & the Courts

Congratulations to Sarah Hawkins Warren

Congratulations to Sarah Hawkins Warren on her appointment to the Supreme Court of Georgia.   Warren is filling the vacancy resulting from Judge Britt Grant’s confirmation to the U.S. Court of Appeals for the Eleventh Circuit last month.

Warren, 36, most recently served as the Solicitor General in the Office of the Attorney General for Georgia. Prior to that, Warren was Deputy Solicitor General of Georgia and a Special Counsel for Water Litigation in the Attorney General’s office.  She has held numerous leadership positions in The Federalist Society over the course of her career, and is a frequent panelist and speaker for Federalist Society events.

I expect Warren to continue to serve the State of Georgia well in her newest capacity as a justice, and commend Governor Nathan Deal for making an outstanding appointment.

Law & the Courts

Vicious Distortion of Kavanaugh Ruling

Wow, some on the Left are really getting desperate and nasty.

In Doe v. District of Columbia (2007), Judge Kavanaugh wrote a unanimous D.C. Circuit panel opinion that held that the policy that the District of Columbia adopted in 2003 for authorizing surgeries for a subclass of intellectually disabled persons in the District’s care did not violate the Due Process Clause. Specifically, the subclass consisted of intellectually disabled persons in the District’s care who have never had the mental capacity to make medical decisions for themselves and who have no guardian, family member, or other close relative or friend who is available to consent or withhold consent on their behalf. Under the District’s policy, the District would authorize surgeries for such persons when (1) two physicians have certified that the proposed surgery is “clinically indicated to maintain the health” of the patient, and (2) D.C. caregivers have made efforts to discuss the surgery with the patient at the level of the patient’s comprehension.

The case arose when three intellectually disabled persons who had never had the mental capacity to make medical decisions for themselves filed suit—or, more precisely, when someone purportedly acting on their behalf filed suit—to challenge the District’s policy. The District, represented by its attorney general Robert Spagnoletti and its solicitor general Todd Kim, vigorously defended the District’s policy. As Kavanaugh summarizes a key part of the District’s arguments:

The District of Columbia has argued that it legally and logically cannot consider the wishes of patients who lack—and always have lacked—mental capacity to make independent medical decisions because there is no information about what they would want if they were not incapacitated. The District of Columbia points out that consideration of the wishes of a patient who lacks mental capacity to make healthcare decisions could lead to denial of essential medical care to a patient who purportedly did not want it—even though the patient by law has always lacked the mental capacity to make such a decision. [Citation and internal quotes omitted.]

Agreeing with the District, Kavanaugh explained that “accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions—with harmful or even deadly consequences to intellectually disabled persons.” He further pointed out that “the breadth of plaintiffs’ constitutional claims is extraordinary because no state of which we are aware applies the rule suggested by plaintiffs.”

In short, this case presented an easy legal question.

But that hasn’t stopped Jamie Davis Smith from penning an outrageous Huffington Post article titled “Brett Kavanaugh’s Supreme Court Confirmation Would Jeopardize My Daughter’s Life.” Smith is the mother of a daughter with serious health problems, including intellectual disabilities. She and her daughter deserve our sympathies. But those sympathies can’t excuse Smith’s outrageous falsehoods.

Smith asserts that Kavanaugh upheld “D.C.’s practice of not allowing the very people undergoing surgery or abortion to express their wishes before being subjected to invasive procedures.” She thus conceals that D.C.’s policy applies only to those (1) who lack, and who have always lacked, the mental capacity to make medical decisions for themselves, (2) who have no guardian, family member, or other close relative or friend to consent or withhold consent on their behalf, and (3) whom two physicians have certified need the proposed surgery to maintain their health. Her reference to abortion is also flat wrong: As Kavanaugh explains, “The D.C.Code also explicitly provides that abortions, sterilizations, and psycho-surgeries may not be authorized, at least absent a court order.” (The plaintiffs sought damages for involuntary abortions under earlier D.C. law, but their damages claim was not part of the case on appeal.)

But Smith doesn’t stop there. She makes numerous other vicious and baseless assertions, including: “With this man [Kavanaugh] on the bench, America could very well return to a time in which forced sterilizations or medical experimentation on disabled individuals is the norm.” (A blog post earlier this month co-authored by a Center for American Progress intern is similarly unhinged from reality.)

Even for those on the Left too lazy to read a judicial opinion, perhaps they could do a sanity check and stop to ponder whether a progressive D.C. government in 2003 would adopt the evil policy they imagine Kavanaugh to have deferred to and whether respected liberals like Spagnoletti (now CEO of the D.C. bar) and Kim (nominated by President Obama in 2014 to serve on D.C.’s highest court) would have vigorously defended such a policy.

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