Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 26

The west side of the Capitol Building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship. (See here for documentation.)

2013—A Second Circuit panel (consisting of one Clinton appointee, one Bush 43 appointee, and one Obama appointee) unanimously reverses senior federal district judge Jack B. Weinstein, who had ruled—in a 349-page opinion, with an additional 50+ pages of appendices—that the Eighth Amendment bars applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Unhappy over the reversal, Weinstein within hours issues an extraordinary memorandum arguing that the case “exemplifies the sometimes unnecessary cruelty of our federal criminal law.”

Weinstein, alas, badly obscures the essential facts of the case. He contends in the brief “Facts” section of his memorandum that the defendant “never produced, sold or deliberately exchanged [child] pornography.” (Emphasis added.) But according to the Second Circuit, the defendant admitted that

he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. [Emphasis added.]

The Second Circuit’s opinion also includes lots of other very ugly facts (too ugly to repeat here) that would lead very few people to conclude, as Weinstein did, that the defendant’s sentence was unjust.

2016—Federal district judge Algenon L. Marbley (of the Southern District of Ohio) issues a preliminary injunction ordering the Highland Local School District to treat an 11-year-old boy “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Never mind that the Supreme Court had just blocked a preliminary injunction in a similar case.

Marbley’s reasoning is laced with errors. For example, on the plaintiff’s Equal Protection claim, he races to find that “transgender status is a quasi-suspect class” subject to heightened scrutiny, but never stops to notice that a bathroom policy that is based on biological sex does not classify on the basis of transgender status.

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