Law & the Courts

This Day in Liberal Judicial Activism—May 27

Ted Olson, representing the opposition to California’s Proposition 8, speaks during appeals hearing on the measure’s validity at the 9th District Court of Appeals in San Francisco December 6, 2010. (Eric Risberg/Pool/Reuters)

2009—Odd bedfellows, indeed! Supposed constitutional conservative Theodore B. Olson, solicitor general under President George W. Bush, betrays the legal principles that he has purported to stand for over the course of his public career as he joins forces with liberal David Boies, his adversary in Bush v. Gore, to file a lawsuit asking a federal district court in California to invent a federal constitutional right to same-sex marriage.

Law & the Courts

This Day in Liberal Judicial Activism—May 26

Justice Sonia Sotomayor

2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard.

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Judicial Nominations Update

Yesterday Senate Majority Leader Mitch McConnell filed cloture motions for three district court nominees, setting up their confirmation and cloture votes (if the Democrats require cloture votes) for the week of June 2nd, when the Senate returns from its 10-day recess.  If the three district judge nominees are confirmed, this will mark the 40th, 41st, and 42nd federal judicial nominees confirmed to date.

Also this week, the Senate Judiciary Committee held a hearing for President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit, Britt Grant, who is currently a Justice on the Supreme Court of Georgia.  The Committee also voted to advance the nomination of Andy Oldham, President Trump’s nominee to the U.S. Court of Appeals for the Fifth Circuit, to the Senate Floor for a full confirmation vote.

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

Current and known future vacancies: 177

Courts of Appeals:  22

District/Specialty Courts*:  155

Pending nominees for current and known future vacancies: 85

Courts of Appeals:  10

District/Specialty Courts:  75

* 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
David Porter (3rd) 4/12/2018 43 No Not yet scheduled
Paul Matey (3rd) 4/12/2018 43 No Not yet scheduled
Richard Sullivan (2nd) 5/7/2018 18 No Not yet scheduled
Jay Richardson (4th) 5/7/2018 18 Yes Not yet scheduled
Marvin Quattlebaum (4th) 5/7/2018 18 Yes Not yet scheduled
Ryan Nelson (9th) 5/15/2018 10 No Not yet scheduled


Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Ryan Bounds (9th) 9/7/2017 260 5/9/2018
Britt Grant (11th) 4/12/2018 43 5/23/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Mark Bennett (9th) 2/15/2018 97 5/10/2018
Andrew Oldham (5th) 2/15/2018 97 5/24/2018

Nominees Awaiting Floor Votes: 40

Courts of Appeals:  2

District/Specialty Courts:  38

Nominees Confirmed by the Senate:  39

Supreme Court: 1

Courts of Appeals: 21

District/Specialty Courts:  17

Law & the Courts

This Day in Liberal Judicial Activism—May 25

President Trump speaks to reporters outside the White House, February 23, 2018. (Jim Bourg/Reuters)

2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

Law & the Courts

This Day in Liberal Judicial Activism—May 24

2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

Law & the Courts

What Kind of Justice Is Neil Gorsuch?

President Trump watches as Neil Gorsuch is sworn as a Supreme Court justice, April 10, 2017. (Carlos Barria/Reuters)

Previous presidential candidates would talk about appointing judges only in generalities — if they talked about it at all. That changed In May and September 2016, when Donald Trump took the unprecedented step of offering lists of individuals from which he would choose Supreme Court nominees. One conservative activist said at the time that the Court “needs more justices who will base their decisions on the law, not politics, even under pressure.”

Neil Gorsuch, then a judge on the U.S. Court of Appeals for the Tenth Circuit, was on the second list. On February 1, 2017, President Trump nominated him to replace Justice Antonin Scalia, and two months later, the Senate confirmed the appointment. As Gorsuch nears the end of his first full term as a Justice, let’s look at a few clues about the kind of Justice he is.

The first clue came even before Gorsuch was nominated. In January 2017, two scholars published a study in which they attempted to measure the “Scalia-ness” of those on President Trump’s lists.

Justice Scalia is often seen as the standard for the kind of judge that our system of government needs. He felt strongly that judges should follow the right process to reach the result in a case, rather than decide which result they wanted and then find a way to reach it.

The study’s authors quantified three measures of “Scalia-ness” and ranked Justice Gorsuch second out of the 16 judges they evaluated.

After Justice Gorsuch’s March 2017 confirmation hearing before the Senate Judiciary Committee, Elizabeth Slattery, my colleague at The Heritage Foundation, wrote: “Most importantly, he showed that he understands the limited role judges should play in our government.” Gorsuch repeatedly insisted that a judge must interpret and apply the law impartially, without relying on his own views or sympathies, and sharply distinguished between the law that judges must follow and policy that Congress has authority to make.

If actions speak louder than words, it’s time to start examining what Justice Gorsuch is doing now that he is fully participating in the Supreme Court’s work. Doing so requires using the same standard that President Trump did in assembling his list. Is Justice Gorsuch basing his decisions on the law, not politics, even under pressure? Is he following the right process to decide cases, or do the political ends justify the judicial means?

The two clues I’ll look at in this post are the first and the latest majority opinions authored by Justice Gorsuch. In Henson v. Santander Consumer USA, Inc., the Court last June unanimously clarified the meaning of “debt collector” in the Fair Debt Collection Practices Act. Four points describe what Justice Gorsuch thought was the proper judicial process.

  • First, he noted “two related questions we do not attempt to answer today.” Judges should not address issues or answer questions that are not necessary to decide the case in front of them.
  • Second, he emphasized that in addressing “the much narrowed question properly before us . . . we begin, as we must, with a careful examination of the statutory text.” The law that federal judges interpret and apply to decide cases isn’t some vague notion, personal impression, or good feeling. It’s written law, so judges should keep their feet on the ground and deal with what the law really is — text.
  • Third, noting that the Court was being asked “to move quickly on to policy,” he wrote that “while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory law under the banner of speculation about what Congress might have done.” This echoes what Gorsuch had said during his confirmation hearing.
  • Finally, he observed that, while “reasonable people can disagree with how Congress” wrote a statute, the “proper role of the judiciary [is] to apply, not amend, the work of the People’s representatives.” This Justice not only believes there is a “proper” role for the judiciary, he knows what it is.

Justice Gorsuch’s most recent majority opinion was released on May 21, 2018. Unlike Santander, his opinion in Epic Systems Corp. v. Lewis was for a Court divided 5-4. The Court held that federal law requires enforcing agreements between employers and employees that provide for settling disputes through arbitration. This case attracted significant media and political attention, with committed interests on both sides.

As he had in his confirmation hearing, Justice Gorsuch opened his opinion by writing: “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear.” He focused on the text and its context to determine the proper meaning of the relevant statutes and then concluded that the Court’s precedents agreed with what the statutes plainly mean.

As he had noted about the parties in Santander, Justice Gorsuch observed that “the dissent retreats to policy arguments.” He concluded his opinion this way: “This Court is not free to substitute its preferred economic policies for those chosen by the people’s representatives.”

Both of these cases required the Supreme Court to interpret and apply statutes. One opinion was unanimous and barely noticed; one was divided and hotly debated. Justice Gorsuch, however, took the same approach — he followed the same process — in each one.

What kind of Justice is Neil Gorsuch? The jury is, and will remain, out until his Supreme Court service is over. The early returns, however, signal that he is exactly the kind of Justice that President Trump presented him to be, that he professed to be in his confirmation hearing, and that observers predicted that he would be.

Law & the Courts

This Day in Liberal Judicial Activism—May 23


1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

Law & the Courts

This Day in Liberal Judicial Activism—May 22

1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

2015—First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”

Law & the Courts

This Day in Liberal Judicial Activism—May 20

Supreme Court Justice Anthony Kennedy (Kevin Lamarque/Reuters)

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

Law & the Courts

This Day in Liberal Judicial Activism—May 19

2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunks rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.

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Judicial Nominations Update

This week brought another new record with the confirmation of the 21st circuit court judge since Inauguration Day: this marks the most confirmed circuit judges ever at this point in a presidency.  In addition, President Trump is just one judge shy of equaling the current record for the most circuit judges confirmed in the first two years of a presidency (22 by President George H.W. Bush).

The White House is continuing to select excellent nominees, Senator Grassley and the Senate Judiciary Committee are continuing to steadily process those nominees, and Senate Majority Leader Mitch McConnell is keeping his promise to prioritize the confirmation of circuit judges.

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

Current and known future vacancies: 177

Courts of Appeals:  22

District/Specialty Courts*:  155

Pending nominees for current and known future vacancies: 85

Courts of Appeals:  10

District/Specialty Courts:  75

* 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
Britt Grant (11th) 4/12/2018 36 Yes 5/23/2018
David Porter (3rd) 4/12/2018 36 No Not yet scheduled
Paul Matey (3rd) 4/12/2018 36 No Not yet scheduled
Richard Sullivan (2nd) 5/7/2018 11 No Not yet scheduled
Jay Richardson (4th) 5/7/2018 11 Yes Not yet scheduled
Marvin Quattlebaum (4th) 5/7/2018 11 Yes Not yet scheduled
Ryan Nelson (9th) 5/15/2018 3 No Not yet scheduled

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Andrew Oldham (5th) 2/15/2018 92 4/25/2018
Ryan Bounds (9th) 9/7/2017 253 5/9/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Mark Bennett (9th) 2/15/2018 92 5/10/2018

 Nominees Awaiting Floor Votes: 34

Courts of Appeals:  1

District/Specialty Courts:  33

Nominees Confirmed by the Senate:  39

Supreme Court: 1

Courts of Appeals: 21

District/Specialty Courts:  17

Law & the Courts

Flipping Judicial Seats

Pardon me for stating the obvious, but every federal appellate appointment can be expected to alter the long-term ideological make-up of an appellate court. When President Trump replaces a judicial conservative with another judicial conservative, he is extending the period of time in which the seat will be held by a judicial conservative. Plus, when (as is common) the “retiring” judge actually stays on the court in senior status and continues to hear cases, the overall pool of judges on the court becomes more conservative.

That said, the greatest effect on the ideological composition of a court comes, of course, when a president replaces a judge of one judicial philosophy with a judge of a different judicial philosophy. For purposes of this post, I’ll use the party of the appointing president as an admittedly imperfect proxy for judicial philosophy.

Let’s look at where things stand with President Trump’s picks and existing vacancies:

1. Of President Trump’s 21 confirmed appellate nominees, eight are filling a vacancy left by a Democratic appointee: Stephanos Bibas (CA3), James Ho (CA5), Amul Thapar (CA6), Michael Brennan (CA7), Amy St. Eve (CA7), David Stras (CA8), Ralph Erickson (CA10), Lisa Branch (CA11).

2. Of President Trump’s ten pending appellate nominations, three are for vacancies of Democratic appointees: Paul Matey (CA3), Marvin Quattlebaum (CA4), and Britt Grant (CA11).

3. With Fourth Circuit judge Allyson Duncan’s decision this week to take senior status, there are now twelve vacancies that await nominees. Of these twelve vacancies, five will replace Democratic appointees: four in the Ninth Circuit (three in California, one in Arizona), and one in the Second Circuit. Let’s hope that nominations for these five seats are made very soon.

For what it’s worth, by my count (making some updates and adjustments to this spreadsheet that Josh Blackman posted some months ago) there are thirty more Democratic appointees to the courts of appeals who are retirement-eligible. Whether and when they will choose to retire is, of course, anyone’s guess.

While I’m at it, let me mention that I was surprised that a couple of people (not judges) thought that my listing the other day of retirement-eligible Republican appointees was some sort of coy suggestion on my part that these appointees should retire. Set aside that I expressly “emphasize[d] that by listing these names I [did] not mean to suggest that any particular individual should retire.”

I’ll point out, first, that I identified the entire set of retirement-eligible Republican appointees. Does anyone really imagine that I want all of those judges to retire or that I am indifferent among them? (There are many who I hope will serve for many, many more years.)

I’ll point out, second, that the November elections, in which Republicans might lose control of the Senate, are barely five months away and that, given how long the nomination and confirmation processes typically take, it’s too late to think that a judge who hasn’t already given some notice of an intention to retire could be replaced by a successor this year. Does anyone really think that I’m eager to have Republican appointees leave their seats vacant?

I’ll point out, third, that I’m well aware that judges make their retirement decisions for their own weighty reasons, and it would have been silly for me to fancy that a blog post of mine would have any impact on their thinking.

Law & the Courts

Improving the Ninth Circuit

At the outset of the Trump administration, Democratic appointees on the Ninth Circuit outnumbered Republican appointees by a margin of 18 to 7. Plus, 21 of the court’s 29 authorized judgeships are (or, more precisely*, are regarded as being) in states that have two Democratic senators, with 15 in California alone. So if the Senate’s blue-slip privilege were to give home-state senators an effective veto on nominations, it would be difficult to impossible to appoint judicial conservatives in those states. Therefore, even with the four vacancies that then existed, it might have been tempting to write off the Ninth Circuit as a lost cause.

No one should think that now.

With the recent death of Stephen Reinhardt (Carter appointee), the retirement of Alex Kozinski (Reagan appointee), and the transition of Richard Tallman (Clinton appointee) to senior status, the Democratic appointee margin is now 16 to 6, with seven pending vacancies and one declared future vacancy. Further, Senate Judiciary Committee chairman Grassley has committed to allow the blue-slip process to be used only to ensure consultation between the White House and home-state senators, not to give those senators a veto.

If the Trump administration fills the eight vacancies, the count of Democratic appointees to Republican appointees will fall to 16-13. (The declared future vacancy is that of a Republican appointee, N. Randy Smith, so filling that vacancy won’t increase the net Republican appointee number.) Further, some nine or so of those 16 Democratic appointees are, or will very soon be, eligible to take senior status or retire, so it’s not entirely farfetched to envision a scenario in which Republican appointees make up a majority of the Ninth Circuit.

In any event, improving the Ninth Circuit dramatically does not depend on establishing a majority of Republican appointees on that court. Whereas the other circuits all use a full en banc court to resolve intracircuit conflicts or reconsider panel decisions, the Ninth Circuit uses a “limited en banc panel” that consists of the chief judge (Clinton appointee Sidney Thomas) and ten other active-service judges selected randomly. Increasing the number of Republican appointees from 6 to 13 would dramatically increase the probability of an en banc panel with a majority of Republican appointees. Right now, there is a 0.4% probability of such a panel. With 13 Republican appointees, the probability would soar to 24.9%. (With my own statistics lessons being a distant memory, I’ve enlisted the assistance of a statistician, though I of course am accountable for any errors.)

Increasing the number of Republican appointees from 6 to 13 would also markedly increase the probability of ordinary argument panels with a majority of Republican appointees. Because senior judges and district judges often sit on panels, the math here is more uncertain, and I’ve had to use some simplifying assumptions. The ballpark numbers I’ve come up with indicate that the probability of a panel with a majority of Republican appointees would rise from the 20-25% range to the mid-40% range.

It is unlikely that all eight of these Ninth Circuit vacancies will be filled this year, especially as nominations have not yet been made for five of them. So here, as with the broader cause of judicial confirmations throughout the country, it is especially important that Republicans retain control of the Senate in this November’s elections.

* Authorized judgeships are not in fact assigned by state.

Law & the Courts

This Day in Liberal Judicial Activism—May 18

Justice William Brennan in 1972 (Library of Congress)

1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018.

2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders?

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

Law & the Courts

Democrats: Trump Judicial Nominees Care Too Much about Being Impartial

President Trump shakes hands with Judge Neil Gorsuch after he was sworn in as an Associate Supreme Court in the Rose Garden of the White House, April 10, 2017. (Joshua Roberts/Reuters)

Today, in the Judiciary Committee’s business meeting, Chairman Charles Grassley addressed efforts to force judicial nominees to express personal views on issues or cases in their confirmation hearings. Senators routinely press nominees, for example, to say whether particular Supreme Court precedents, such as Brown v. Board of Education or Roe v. Wade, were correctly decided. Nominees, however, consistently decline to do so, emphasizing instead that they will apply all relevant precedents, whether or not they personally agree with those precedents.

Grassley was correct to oppose this approach. The push for nominees to express personal views undermines not only the impartiality on which the legitimacy of our judicial system depends, but the confidence of our fellow citizens in that system.

America’s Founders established a system of government designed to maximize ordered liberty by limiting government. The key word in the preceding sentence is “designed.” The liberty that this system makes possible exists by design, not by accident. And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible.

When they take the oath of judicial office, these nominees will swear to “administer justice without respect persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.”

Similarly, Rule 2.2 of the American Bar Association’s Model Code of Judicial Conduct states that a judge “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” One of the comments explaining this rule advises that “[a]lthough each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”

No one could disagree with that principle, but it should apply to all of the legal authorities that a judge will use to decide cases. That includes not only statutes or constitutional provisions, but also judicial precedents. If a judge must “interpret and apply the law without regard to whether [he or she] approves or disapproves of the law in question,” it cannot be appropriate to demand that the same individual, as a nominee, express such approval or disapproval as a condition of becoming a judge.

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