Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 1

U.S. Court of Appeals for the Ninth Circuit (

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court will reverse the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor, and Souter dissent.

 2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination will finally be confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.

 2020—It’s awful enough that the left-wing group Demand Justice baselessly accuses a judge who is retiring in order to care for his very ill wife of instead doing so in exchange for a bribe. But it’s even worse that D.C. Circuit chief judge Sri Srinivasan, who knows full well why his colleague Thomas Griffith is retiring, fails to do his duty by dismissing Demand Justice’s frivolous (and improperly filed) complaint. Srinivasan instead makes an ill-founded request to Chief Justice Roberts to transfer the matter to another court. And, after sitting on the complaint for six weeks, he makes this transfer request on the cusp of the confirmation hearing for Griffith’s successor, Justin Walker, and in a manner seemingly calculated to generate political ammunition for those opposing Walker’s confirmation.

One week later, the Chief Justice will deny Srinivasan’s transfer request on the ground that Srinivasan had failed to identify reasonable grounds for believing that Demand Justice’s smear warranted any further inquiry.


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