Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 9

2018—At the Senate Judiciary Committee hearing on the nomination of Ryan Bounds to a Ninth Circuit vacancy, Senator Richard Blumenthal tries to take Bounds to task for his college writings. As David Lat aptly summed up those writings, Bounds simply “poked fun at the excesses of political correctness,” but his critics have instead unfairly “tar[red]” him as supposedly “biased against minorities, women and gays.”  

Blumenthal hilariously illustrates the point. He complains to Bounds that “You referred to fellow students as ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.” Bounds, in reply, makes the obvious point that he was “decry[ing] the use of those names.” Blumenthal, following up, objects: “But you referred to fellow students with those terms.” Bounds again points out that he “was complaining about the fact that other people referred to my fellow students that way.” 


Alas, Bounds’s nomination will be withdrawn two months later on the cusp of a final confirmation vote, when Republican senator Tim Scott inexplicably appears to accept the Democratic smears. 

2025—In American Federation of Government Employees v. Trump, federal district judge Susan Illston imposes a temporary restraining order that prevents federal agencies from formulating and implementing plans to reduce the size of the federal workforce. Two weeks later, Illston will convert her TRO into a preliminary injunction. 

In July, the Supreme Court will grant the Trump administration’s request for a stay of Illston’s order pending appeal. Only Justice Ketanji Brown Jackson will register a dissent, and Justice Sonia Sotomayor will write separately to explain why she disagrees with Jackson. 

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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