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.

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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.

Law & the Courts

Judicial Nominations Update

Next Tuesday, confirmation hearings will begin for Brett Kavanaugh, President Trump’s nominee to the Supreme Court.  The hearings are expected to run until next Friday.

Meanwhile, Senate Majority Leader Mitch McConnell is adhering to his promise to keep the Senate working this August. Last week, McConnell warned that the Senate would stay in session until another twelve judicial nominees and four executive branch nominees are confirmed.  McConnell said, “No more obstruction, no more delays. It’s time to confirm them all.”

Senate Judiciary Committee Chairman Chuck Grassley is also continuing to process nominees, holding a hearing last week for Eighth Circuit nominee Jonathan Kobes.

I applaud both Leader McConnell and Chairman Grassley for putting the Democrat senators’ feet to the fire as they persist with their unprecedented obstruction efforts.

Here is this week’s update on federal judicial nominations:

Current and known future vacancies:  179

Supreme Court:  1

Courts of Appeals:  18

District/Specialty Courts*: 160

Pending nominees for current and known future vacancies:  89

Supreme Court: 1

Courts of Appeals:  8

District/Specialty Courts:  80

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Paul Matey (3rd) 4/12/2018 137 No Not yet scheduled
Eric Murphy (6th) 6/18/2018 70 No Not yet scheduled
Chad Readler (6th) 6/18/2018 70 No Not yet scheduled
Eric Miller (9th) 7/19/2018 39 No Not yet scheduled

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Ryan Nelson (9th) 5/15/2018 104 7/11/2018
Richard Sullivan (2nd) 5/7/2018 112 8/1/2018
Jonathan Kobes (8th) 6/11/2018 77 8/22/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
David Porter (3rd) 4/12/2018 137 7/19/2018

 Nominees Awaiting Floor Votes: 45

Courts of Appeals:  1

District/Specialty Courts:  44

Nominees Confirmed by the Senate: 53

Supreme Court: 1

Courts of Appeals: 26

District/Specialty Courts:  26

Law & the Courts

This Day in Liberal Judicial Activism—August 27

Christian proselytizers at the 2012 Arab International Festival in Dearborn, Michigan. (Patch.com)

2014—In Bible Believers v. Wayne County, a divided panel of the Sixth Circuit confers “a clear heckler’s veto,” as dissenting judge Eric L. Clay puts it—or is it a thug’s veto?—on an angry crowd at the 2012 Arab International Festival. The panel majority rules that the “threat of violence” at the festival on the streets of Dearborn, Michigan “had grown too great to permit [a group of Christian evangelists] to continue proselytizing.”

Three months later, the Sixth Circuit will grant en banc review of the ruling. In October 2015, the en banc Sixth Circuit, in a majority opinion by Judge Clay, will hold that county police violated the constitutional rights of the Christian evangelists when they barred them from continuing to proselytize.

Law & the Courts

This Day in Liberal Judicial Activism—August 26

(Pixabay)

2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules.

Law & the Courts

This Day in Liberal Judicial Activism—August 25

Supreme Court Associate Justice Ruth Bader Ginsburg (Joshua Roberts/Reuters)

2013—Ah, yes, Justice Ruth Bader Ginsburg, champion of judicial restraint.

Two months after providing the fifth vote to invalidate the federal Defense of Marriage Act, Ginsburg brazenly observes in a New York Times article that if judicial activism is “measured in terms of readiness to overturn legislation,” her conservative colleagues have made the Roberts Court “one of the most activist courts in history.” Her claim, even on her own terms, is wrong. But the hyperactivist Ginsburg is also deploying a neutered meaning of the term judicial activism that fails to distinguish between correct and incorrect invalidations of democratic enactments.

Ginsburg’s claim is reminiscent of the leftist charge during the Cold War that the CIA and the KGB were engaged in morally equivalent acts of spycraft. As William F. Buckley responded to that charge, that’s like “saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.”

Law & the Courts

This Day in Liberal Judicial Activism—August 24

(Shutterstock)

1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

Law & the Courts

A Supreme Court Nominee Deserves Better

Supreme Court nominee Judge Brett Kavanaugh at the White House, July 9, 2018. (Jim Bourg/Reuters)

I didn’t see it coming. After three decades in the field of judicial appointments, I thought I had seen pretty much everything. I thought too soon.

Last week, Public Policy Polling conducted a survey of voters in Maine regarding the Kavanaugh nomination. Maine is on the radar screen because some say that Republican senator Susan Collins is among the handful who will determine whether Kavanaugh is confirmed.

Survey question 8 read: “Supreme Court nominee Brett Kavanaugh will likely support the Trump Administration position on a lawsuit which would strike down healthcare protections for people with preexisting conditions. Does learning this make you more likely or less likely to support confirmation of Brett Kavanaugh for the Supreme Court, or does it not make a difference?”

What?

This has to be one of the most manipulative poll questions ever asked about a judicial nominee. First, it is not based on anything Kavanaugh has actually done, written, or said, but on a hypothetical. That’s not automatically bad, but the question asserts as fact what is, in fact, mere speculation.

Second, this question offers a mere sentence fragment — and a distorted one at that — about the lawsuit it mentions, implying that this lawsuit actually targets Obamacare’s requirement of coverage for people with pre-existing medical conditions. It doesn’t.

Third, the question obviously promotes the view that judges should be appointed based on which side will likely win in certain kinds of cases. That’s like hiring an umpire based on which teams he will favor during the upcoming season.

Rarely have so many flaws been packed into a single poll question.

At the end of the day, the conflict over judicial appointments boils down to a conflict over judicial power. Should judges take the power to make law away from the American people and their elected representatives? Certainly America’s Founders didn’t design the judiciary to operate that way.

Unfortunately, the American people’s understanding of our system of government and the judicial branch’s place in that system is less than optimal. After all, 12 percent think the Constitution protects the right to own a pet, and 22 percent believe that the three branches of government are the Democrat, Republican, and Independent branches. Ten percent of college graduates say that Judge Judy currently serves on the U.S. Supreme Court. One-third can’t name any branch of government, and nearly 40 percent can’t identify any rights actually protected by the First Amendment.

It’s scandalous that pollsters would aggravate this feeble understanding by using blatantly misleading questions about Judge Brett Kavanaugh. A Supreme Court nominee deserves better — even if he will not be sharing the bench with Judge Judy.

Law & the Courts

This Day in Liberal Judicial Activism—August 23

2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.

Law & the Courts

This Day in Liberal Judicial Activism—August 22

(Tim Sloan/AFP/Getty)

2014—Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomoyor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism.

Law & the Courts

Conservatives Voice Concerns Over Potential Fifth Circuit Nominee

Last week the Senate confirmed Marvin Quattlebaum and Jay Richardson to the Fourth Circuit, marking the 25th and 26th judges, respectively, confirmed to the federal courts of appeal to date during the Trump presidency.  And with more than four months still to go before the end of the 115th Congress, it is likely that President Trump will best the previous record set by President George H.W. Bush (22 circuit court judges in the first two years of a presidency) by a healthy margin.

These 26 (and counting) circuit court judges have been some of the best we have ever seen ascend to the federal bench.  They include in their ranks Supreme Court clerks, influential law professors, private practitioners, top federal prosecutors, lawyers from the Department of Justice’s Office of Legal Counsel (considered the “brain trust” of any administration), state attorneys and solicitors general, and numerous accomplished state court judges. Republicans of all stripes (and even Democrats) agree that the President has nominated and confirmed the very best of the best.  Oh yeah, he’s also nominated Neil Gorsuch and now Brett Kavanaugh the Supreme Court in those same two years.  Together with Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley, the president is reshaping the federal judiciary, and given that these are life-tenured positions, the impact will endure for decades.

Yet, conservatives are growing concerned over the possibility of the remaining vacancy on the Firth Circuit being filled by Halil Suleyman (“Sul”) Ozerden, a current federal district judge in the Southern District of Mississippi.  President George W. Bush nominated Ozerden to the seat in 2007.

According to Ken Klukowski of Breitbart, “rumors are circulating in D.C. that some establishment politicians are pressuring the president to appoint a judge who has a mixed record and no true conservative credentials.”  He writes, “Ozerden’s time on the federal trial bench shows a consistent pattern of refusing to lead or to take a stand on important legal issues.” According to Klukowski:

Ozerden has written 1,100 orders and opinions over the past decade, but they do not demonstrate any focus on advancing the original meaning of the Constitution, stringently adhering to the text of federal law, or taking the time to develop the law with full-length, persuasive opinions that advance the rule of law.

Some of the misgivings about Ozerden are not grounded in ideology or judicial philosophy, but mere judicial competence.  Ozerden has an unusually high reversal rate:  of his 59 decisions that have been reviewed by the Fifth Circuit, 25% have been overturned.  While a reversal rate on its own isn’t necessarily conclusive evidence of poor judicial decision-making or a lack of competence, remember that we are talking about the Fifth Circuit here, not the Ninth Circuit.  Ozerden has been reversed by some of the most conservative judges in the country, including Edith Jones and Jerry Smith.  And a number of those reversals from three-judge panels have been unanimous.

Perhaps even more concerning is the reasoning behind the reversals.  Court watchers have noted that Ozerden is inclined to dispose of cases prematurely and without thoughtful and thorough legal analysis.  Klukowski reports:

[Ozerden’s] critics note that his legal analysis is typically very short, and fails to cite key Fifth Circuit precedents which he is required to follow as a trial judge.

For example, in A.K.W. ex rel. Stewart v. Easton Bell Sports, Inc., the Fifth Circuit reversed Ozerden’s grant of summary judgment, finding that he gave short shrift to expert testimony in his opinion, and did not examine all of the legal elements for a design-defect claim required under Mississippi law.

In Saucier v. Aviva Life & Annuity Co, a three-judge panel for the Fifth Circuit reversed Ozerden in his finding that federal abstention was appropriate.  Abstention analyses call for consideration of the facts in light of a multi-factored test. Yet the analysis in Ozerden’s opinion was unduly curt and lacked consideration of governing Fifth Circuit precedents.

Klukowski details a further example of a premature disposition in a case, Time Insurance Company v. White, where Ozerden dismissed the case in the preliminary stages of litigation.  Writing for a unanimous panel vacating Ozerden’s ruling, Judge Edith Jones wrote,“With all due respect to the district court, its efforts to streamline this case resulted in a premature disposition.” The three-judge panel determined that Fifth Circuit precedent allowed the plaintiff claimant to amend his original answer at that beginning stage of litigation, contrary to Ozerden’s ruling.

Also concerning is the fact that in the decade that Ozerden has been on the federal bench, he has not demonstrated a commitment to textualist methods of statutory interpretation.  In a 2016 case, Glaskox v. George County Hospital, Ozerden invoked analogical reasoning from persuasive authority to resolve a statutory question rather than looking first to the text itself.  Likewise Ozerden’s 2012 opinion In re S. White Transportation Inc. analyzed a question of statutory interpretation primarily by looking to relevant precedents with little regard for dictionary-based textualist reasoning.  Relatedly, Ozerden has not shied away from relying on precedents grounded in legislative history, as he did in both In re S. White Transportation Inc. and Glaskox.

I believe that the judges that President Trump has nominated to the Supreme Court and the federal circuit courts of appeal will be the crown jewel of the President’s legacy. The Fifth Circuit is no exception.  The appellate judges that President Trump has nominated to the court thus far, such as Jim Ho, Kyle Duncan, Don Willett, and Andy Oldham, are committed to following the Constitution and upholding the rule of law. Furthermore, this is an issue that unites and bolsters Republicans heading into the midterm elections.

Mississippi is as red a state as they come.  It sure seems like we could do better than Judge Ozerden there.

Law & the Courts

This Day in Liberal Judicial Activism—August 20

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

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