Law & the Courts

This Day in Liberal Judicial Activism—November 11

Judge Stephen Reinhardt

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to aletter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.

Law & the Courts

This Day in Liberal Judicial Activism—November 10

(Blueenayim/Dreamstime)

1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.  

2016—Oregon federal district judge Ann L. Aiken submits a strong entry for the most pervasively lunatic ruling ever. In Juliana v. United States, she denies the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.

Law & the Courts

This Day in Liberal Judicial Activism—November 9

(Wikimedia Commons)

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing.

Law & the Courts

Active Appellate Judges by Party of Appointing President

As of today, 168 of the 179 authorized “active” appellate judgeships are filled—85 by appointees of Republican presidents, 83 by appointees of Democratic presidents.

Oddly, the Federal Judicial Center’s biographical directory counts Fourth Circuit judge Roger Gregory as an active appointee of both President George W. Bush and President Clinton, so it generates a count of 85-84 even though it has a total of 168. I’m counting Gregory exclusively as a Bush appointee. Although Gregory was initially recess-appointed by Clinton, he holds his office now by virtue of Bush’s unrequited gesture of goodwill in appointing Gregory to a lifetime seat in 2001.

Here’s a breakdown of active appellate judgeships by appointing president:

Republicans: Trump 29, George W. Bush 38, George H.W. Bush 8, Reagan 9, and Ford 1 (Gerald Tjoflat of the Eleventh Circuit)

Democrats: Obama 52, Clinton 31

Law & the Courts

Transforming the Federal Courts of Appeals

It’s a long and difficult project for any president to transform the federal courts of appeals by his judicial appointments. President Trump is off to a great start, but there is a lot of work ahead.

There are 179 authorized “active” appellate judgeships, spread across the twelve geographical courts of appeals and the specialized Federal Circuit. Vacancies in these judgeships arise over a long period of time, for two main reasons. First, the Rule of 80 that governs judicial pensions usually encourages judges to serve at least 15 years in active status and until age 65.* Second, even after satisfying the Rule of 80, many judges will prefer to remain in active status (rather than take senior status or retire altogether from the bench).

In his first two years, President Trump has already appointed 29 appellate judges, and there are at least 7 more lined up for Senate action by year-end. Whether you look at the current total of 29 or the projected two-year total of 36, either is an all-time record for a president during his first two years. (Barack Obama had 16; George W. Bush, 17; Bill Clinton, 19.) But even the projected total of 36 is barely 20% of the 179 active seats.

Further, appointments will often preserve (and extend) rather than alter the ideological composition of an appellate court. Of Trump’s 29 appointments so far, 19 have been to seats previously held by an appointee of a Republican president (an admittedly crude and imperfect proxy for judicial philosophy), and 16 have been to seats on courts that already had a Republican-appointee majority when Trump took office. No court of appeals has yet swung from Democratic-appointee majority to Republican-appointee majority. (The Eleventh Circuit has moved from Democratic-appointee majority to evenly divided.)

One big obstacle to continued progress on federal appellate appointments is that there aren’t many remaining vacancies. In addition to the seven nominations lined up for Senate action by year-end, the White House has announced five other appellate nominations. Beyond that, there are only three existing appellate vacancies that don’t have nominees.

It’s possible that more vacancies will soon arise. By my count, there are some sixty judges who have met, or in a few instances will very soon meet, the Rule of 80 and thus can take senior status. But more than half of these are Democratic appointees, and many of them might well be disinclined to step down during the Trump presidency.**

That leaves some 27 or so pension-eligible Republican appointees as the most promising pool of imminent vacancies. To be clear: It is up to each judge to decide whether and when to take senior status, and I am certainly not encouraging anyone to do so. My limited point here is that the most likely vacancies to arise in the near future cannot be expected to alter the ideological composition of any court.

In short, transforming the federal courts of appeals is a project that will likely require much more than another two years of strong appointments.

* Under the Rule of 80, a judge becomes pension-eligible when the judge’s age plus years of service equal 80, so long as the judge is at least 65 and has served at least 10 years. (Age and years of service are counted in full years, excluding fractions.)

** I don’t mean to imply any objection to the fact that a sitting judge might prefer to be replaced by a president of the same party as the president who appointed the judge, especially if that preference is based on the presumed judicial philosophy of his successor.

Law & the Courts

The Kavanaugh Effect

After the unexpected death of Justice Antonin Scalia in early 2016, President Trump took the unprecedented step of publicly releasing a list of names from which he promised to nominate the next Supreme Court justice were he to be elected.

President Trump’s list proved to be a significant motivating factor for Republican and independent voters in 2016, giving unexpected victories to both President Trump and the Congressional republicans.

And today we see history repeating itself.  As of this evening, Senate Republicans have added at least three seats to their majority.  Yet just weeks ago, the GOP Senate majority seemed to be at risk.  What lesson can we learn from the evaporation of the much-anticipated “blue wave”?

That the judiciary matters to voters.  Much like the “Scalia Effect” of 2016, we are seeing a “Kavanaugh Effect” in 2018.

Last night’s midterm results showed that there were tangible electoral consequences for red state Democrats who voted against Justice Kavanaugh’s confirmation.  Four red state Democrats appear to have lost last night: Joe Donnelly (Indiana), Heidi Heitkamp (North Dakota), Claire McCaskill, and Bill Nelson (Florida). (The Florida race may be headed to a recount.)

All four of these senators voted against Brett Kavanaugh’s confirmation in October.  The only other red-state ​Democrat to vote against Kavanaugh, Jon Tester (Montana), barely won his race.  In contrast, Senator Joe Manchin (West Virginia) likely saved his Senate seat by voting for Kavanaugh’s nomination, and prevailed in West Virginia by a three-point margin.

The exit polls in these states show that the Kavanaugh confirmation weighed significantly on voters’ minds as they headed to the polls.  From ABC News today:

  • Indiana: “Those who call Donnelly’s vote against Kavanaugh highly important divide by 41-54 percent, Donnelly-Braun.”
  • North Dakota: “Forty-seven percent of voters said that Heitkamp’s (D) vote against Kavanaugh was important in their vote, and they went for Cramer by nearly 2-to-1: 38-62 percent.”
  • Missouri: “Fifty-one percent of voters say McCaskill’s vote against Brett Kavanaugh’s confirmation was a top factor in their Senate vote.”
  • Florida: “Those who call Nelson’s anti-Kavanaugh vote a top factor divide 47-52 percent, Nelson-Scott.”
  • Montana: “Forty-five percent say Tester’s vote against Brett Kavanaugh’s confirmation is an important factor in their vote.”
  • West Virginia: “Manchin was the only Democratic senator to vote to confirm Brett Kavanaugh to the Supreme Court. 40 percent of voters say Manchin’s vote was a key factor in their Senate vote.”

During his first two years in office, President Trump has made good on his campaign promise and prioritized nominating federal judges who are committed to the Constitution and the rule of law.  The confirmation of these outstanding nominees has also been a significant success for the GOP Senate and been a unifying issue for the Republican Party.  Last night’s election results demonstrated how important the issue of the courts continues to be to voters across the country.

Law & the Courts

Ohio’s Odd Election Results

Yesterday, Republicans swept nearly all the statewide races in Ohio. Republican candidates for Governor and Lieutenant Governor (DeWine and Husted), Attorney General (Yost), Treasurer (Sprague), Auditor (Faber), and Secretary of State (LaRose) all prevailed. These victories were fairly decisive. The DeWine-Husted ticket won in 79 of Ohio’s 88 counties. The one partisan race Republicans lost was for the U.S. Senate, where Congressman Jim Renacci failed to unseat incumbent Senator Sherrod Brown.

While Republicans did well in the statewide races, the Republican nominees for two open state Supreme Court seats both lost to their Democrat-nominated opponents. (In Ohio, judicial candidates are nominated in partisan primaries, but are not identified by party on the general-election ballot.)

Judge Melody Stewart defeated incumbent Justice Mary DeGenaro and Judge Michael Donnelly defeated Judge Craig Baldwin, with 52 and 61 percent of the vote respectively. What gives? For starters, there’s a fair amount of down-ballot drop off in judicial races. Many in Ohio also speculate that voters often vote based on the names of judicial candidates, and that Irish sounding names do particularly well (an explanation that might help explain the different vote totals in the two races). Whatever the explanation, the broad support for Republican candidates in Ohio did not extend to the race for Ohio’s Supreme Court, which now consists of five justices who were Republican nominees and two justices who were Democratic nominees.

Law & the Courts

Judicial Nominations Update

The Senate has been out of session since October 12th, and will not return until next Tuesday, November 13th.  During the recess, the Senate Judiciary Committee has held nomination hearings for several judicial nominees—including Allison Jones Rushing (4th Circuit) and Eric Miller (9th Circuit)—who were originally slated for hearings in late September and early October.  The hearings were held during the recess as a result of an agreement that Chairman Chuck Grassley reached with Ranking Member Dianne Feinstein after Senator Feinstein requested the postponement of the hearings.

Next Wednesday, the Committee is slated to have a hearing on the nomination of Paul Matey, President Trump’s nominee to the Third Circuit.  Mr. Matey has been waiting 209 days for a hearing.

Here is an update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies:  155

Courts of Appeals:  15

District/Specialty Courts*: 140

Pending nominees for current and known future vacancies:  72

Courts of Appeals:  12

District/Specialty Courts*:  60

* 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 209 No 11/14/2018
Joseph Bianco (2nd) Pending † Pending† No Not yet scheduled
Michael Park (2nd) Pending † Pending† No Not yet scheduled
Patrick Bumatay (9th) Pending † Pending† No Not yet scheduled
Dan Collins (9th) Pending † Pending† No Not yet scheduled
Ken Lee (9th) Pending † Pending† No Not yet scheduled

†The Senate formally receives nominations only when it is in session.  The President announced his intent to nominate the above-referenced Second and Ninth Circuit nominees on October 10, 2018.

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Eric Murphy (6th) 6/18/2018 142 10/10/2018
Chad Readler (6th) 6/18/2018 142 10/10/2018
Eric Miller (9th) 7/19/2018 111 10/24/2018
Bridget Shelton Bade (9th) 8/27/2018 72 10/24/2018
Allison Jones Rushing (4th) 8/27/2018 72 10/17/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Jonathan Kobes (8th) 6/11/2018 149 10/11/2018

 Nominees Awaiting Floor Votes: 34

Courts of Appeals:  1

District/Specialty Courts:  33

Nominees Confirmed by the Senate: 84

Supreme Court: 2

Courts of Appeals: 29

District/Specialty Courts:  53

Law & the Courts

Huge Victory for Judicial Confirmations

From the narrow perspective of judicial confirmations, yesterday’s elections were a huge success.

Senate Republicans appear to have increased their margin of control from 51-49 to 54-46. Those additional seats provide a lot of space in the event that there is another Supreme Court vacancy over the next two years. Simply put, it ought to be an easy matter to confirm another outstanding judicial conservative (or two) to the Court.

That increased margin, of course, also will make it easier to confirm lower-court judges. That in turn might lead to additional vacancies, as some retirement-eligible judges might decide that now is a good time to take senior status.

The increased margin in the next Congress also makes it more likely that Senate majority leader Mitch McConnell will be able to get some 50 or 60 additional judicial nominees confirmed in the closing weeks of this year. How much of an incentive, after all, do Senate Democrats have to try to delay these confirmations, and how much leverage do they have left?

Jon Tester barely managed to hold on to his Montana seat, and it now seems (subject to recounts) that all the other red-state Democrats who voted against the Kavanaugh nomination (Donnelly, Heitkamp, McCaskill, Nelson) were voted out of office, while the one red-state Democrat who voted for Kavanaugh (Joe Manchin) was re-elected. Senate Democrats will have to grapple with the political costs of the ways they’ve gone about trying to defeat quality nominees. (That might matter more for the 2020 presidential election than for the Senate races in 2020: Democrats might figure that the only red-state Democrat up for re-election in 2020—Doug Jones in Alabama—is likely to lose anyway.)

Finally, with the Democrat takeover of the House, the near-certainty of legislative gridlock makes it even more likely that the White House will press judicial nominations for political victories.

[11/8: I have modified this post to account for Senator Tester’s victory.]

Law & the Courts

This Day in Liberal Judicial Activism—November 7

(Photo Illustration: NRO)

2000—So much for respecting a capital inmate’s final wishes.

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.

Law & the Courts

This Day in Liberal Judicial Activism—November 6

Judge William Pryor Jr. (Photo: Wikimedia)

2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it.

In February 2004, President Bush recess-appoints Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

2017—In a unanimous ruling in Kernan v. Cuero, the Supreme Court summarily reverses a ruling by Ninth Circuit judge Kim McLane Wardlaw that granted habeas relief to a state prisoner. Employing understatement, the Court observes, “There are several problems with the Ninth Circuit’s reasoning below.”

Summary reversals—that is, reversals without the Court’s seeing any need for briefing on the merits or oral argument—generally reflect very poorly on the judge who authored the opinion below. But Wardlaw seems to be competing for a Lifetime Summary Reversal Award, as this is at least the fourth time she has had a ruling unanimously summarily reversed by the Court.

Law & the Courts

Supreme Court Gives Ninth Circuit a Chance to Block the Climate-Change Lawsuit

On Friday, the Supreme Court issued an order denying the federal government’s motion for a stay of the impending trial in the wildly adventuresome climate-change lawsuit in Juliana v. United States. At first blush, this might seem like a significant loss for the federal government. But the text of the Court’s order strongly suggests otherwise.

Most importantly, the Court makes clear that it is denying the government’s motion “because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.” Specifically, the government may seek mandamus relief from the Ninth Circuit. The Court points out that even though a Ninth Circuit panel has twice denied the government’s request for mandamus relief at earlier stages of the litigation (see opinions from March and July), those denials were “without prejudice” and were based on “reasons [that] are, to a large extent, no longer pertinent.”

The Court’s order also suggests substantial agreement with the government’s argument that the lawsuit is (in the Court’s paraphrase) “beyond the limits of Article III.” The Court states:

The Government notes [not “argues”] that the suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate as enjoyed by prior generations. The Government further points out that plaintiffs ask the District Court to create a “national remedial plan” to stabilize the climate and “restore the Earth’s energy balance.” [Emphasis added.]

I gather that if* the government petitions the Ninth Circuit for a writ of mandamus, the same very liberal panel—chief judge Sidney Thomas, Marsha Berzon, and Michelle Friedland—that denied its two previous requests will rule on that petition. We’ll see if they grant relief this time. If not, my bet is that the Supreme Court will then step in.

* Update: The government filed such a petition on 11/5.

Law & the Courts

This Day in Liberal Judicial Activism—November 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

Law & the Courts

This Day in Liberal Judicial Activism—November 4

(Shutterstock)

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues. 

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.

Law & the Courts

Dispute over Use of Inadmissible Opinion Testimony for Class Certification

In a strong dissent from denial of rehearing en banc yesterday, Ninth Circuit judge Carlos Bea, joined by four of his colleagues, objected to a panel ruling (in Sali v. Corona Regional Medical Center) that, as Bea summed it up, “accepted the undisputedly inadmissible opinion of plaintiffs’ paralegal … that the plaintiffs have damages typical of the class sought to be certified.” (Emphasis in original.) Bea argues that the panel’s holding that opinion testimony need not be admissible in order to be used at the class-certification stage “is contrary to our own precedent [and] also contrary to decisions of four other circuits and clear Supreme Court guidance.”

Look for this one to get the attention of the Supreme Court if a certiorari petition is filed.

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