Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—July 24

President Obama nominating law professor Cornelia Pillard to D.C. Circuit. ( Mark Wilson/Getty Images)

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind: “I am a mother” is part of how she deflects criticism of her equal-protection argument against abstinence-only sex education.

Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.

2018—“Judge [Stephen] Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death,” asserts Ninth Circuit chief judge Sidney Thomas in an opinion in a case (Altera Corp. v. Commissioner of Internal Revenue) in which the decisive vote on the divided panel is said to have been cast by Reinhardt. (Emphasis added to quote.)

But Reinhardt died nearly four months earlier, probably before the dissenting judge ever circulated her draft dissent. Further, a judge is free to change his position at any time before an opinion issues, so it is difficult to discern what Thomas’s claim that Reinhardt “formally concurred” might actually mean.

In a change of course two weeks later, the Ninth Circuit will withdraw the ruling so that a reconstituted panel can decide how to proceed.

In February 2019, in vacating the judgment in another case in which Reinhardt was said to have posthumously cast the deciding vote (and indeed to have been the author of the majority opinion), the unanimous Supreme Court in Yovino v. Rizo will repudiate chief judge Thomas’s misunderstanding:

“We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”

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