Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 24

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—At a mock hearing meant to pressure Senate Republicans to confirm whomever President Obama will nominate to the Supreme Court vacancy created by Justice Scalia’s death, law professor Geoffrey Stone panders to Senate Democrats by purporting to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee.

This is the same Stone who in 2006 urged the Senate to defeat the Alito nomination. Back then, Stone emphasized that “members of the Senate are free to reject nominees if they disagree with [the] views” the nominating president “wants represented on the Court.” Stone further argued: “If the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.” (Stone’s emphasis.)

2017—Playing pronoun police, the Supreme Court’s Office of the Clerk chastises two amici for using a feminine pronoun (“G.G., by her next friend and mother, Deirdre Grimm”) to refer to the respondent in the caption of their briefs. Never mind that the respondent is a biological female and that a central question in the case is whether she must nonetheless be treated as though she were male. Never mind, further, that the rule that the clerk’s office alleges amici to have violated doesn’t remotely say what the clerk’s office claims the rule to mean (namely, that “parties generally should use the case title reflected on the Court’s docket”) and that the clerk’s office hasn’t previously enforced such a meaning.

2020—Sometimes ugly and ungrammatical locutions give the game away. In a divided panel ruling (in Allen v. Ives), Ninth Circuit judge William Fletcher grants relief to a habeas petitioner who, exploiting the “actual innocence” exception to a bar on habeas relief, contends that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” (Emphasis added.)

Months later, the Ninth Circuit will deny rehearing en banc over the dissent of twelve judges.

2020—“People of all genders … can become pregnant.” That pearl of politically correct obtuseness is buried in Judge Richard Paez’s dissent from an en banc Ninth Circuit ruling (in California v. Azar) holding that HHS regulations implementing Title X of the Public Health Service Act are lawful.

Yes, Judge Paez, women who don’t identify as female can still get pregnant—because they in fact are women.

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