Law & the Courts

Steven Menashi Hearing Tomorrow

Tomorrow, Steven Menashi, President Trump’s nominee to U.S. Court of Appeals for the Second Circuit, will go before the Senate Judiciary Committee for his nominations hearing. Menashi has already been the target of misleading and anti-Semitic smears, which I have written about here on Bench Memos. The following post provides a snapshot of Mr. Menashi’s vast experience and qualifications to be a federal appellate court judge:

Who Is Steven Menashi?

Law & the Courts

Who is Steven Menashi?

Steven Menashi is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.

Age:  40

Current Position:  Associate White House Counsel and Special Assistant to the President 

Education:

  • B.A., Dartmouth College, magna cum laude(2001)
  • J.D., Stanford Law School, Order of the Coif (2008); Senior Articles Editor, Stanford Law Review

Judicial Clerkships:

  • Douglas H. Ginsburg, U.S. Court of Appeals for the D.C. Circuit (2008-2009)
  • Samuel A. Alito, U.S. Supreme Court (2010-2011)

Professional Experience:

  • 2018-Present: Associate White House Counsel and Special Assistant to the President
  • 2018: Principal Deputy General Counsel, U.S. Department of Education (Washington, DC)
  • 2017-2018: Acting General Counsel, U.S. Department of Education (Washington, DC)
  • 2016-2019: Assistant Professor of Law, Antonin Scalia Law School, George Mason University (Arlington, VA) (on leave 2017-2019)
  • 2011-2017: Associate (2011-2013), Of Counsel (2013-2015; 2016-2017), and Partner (2015-2016), Kirkland & Ellis LLP (New York, NY)

Career Notes:

  • Menashi’s work at Kirkland & Ellis focused on civil and regulatory litigation. In academia, he similarly taught courses on administrative law and civil procedure.
  • While in private practice, Menashi also was a research fellow at the New York University School of Law and the Opperman Institute for Judicial Administration (2013-2016).
  • Between 2001 and 2004, Menashi was on the staff of Stanford University’s Hoover Institution, where he worked as an editor of the Policy Review and (between 2002 and 2004) was a Public Affairs Fellow.
  • In 2018, Menashi served on the board of the Food Allergy Fund, a charitable organization that supports research focused on the underlying causes and treatments of food allergies.

Honors and Awards:

  • At Stanford, Menashi received the Steven M. Block Civil Liberties Award and the Carl Mason Franklin Award in International Law, and he won the Kirkwood Moot Court Competition (2008). His scholarship has been recognized through fellowships with the Institute for Humane Studies (2007), the Johns Hopkins University School of Advanced International Studies (2004), and the Claremont Institute (2002). In 2000 and 2001, the Center for Print and Broadcast Media gave him the Lowry Outstanding Editor Award.
Law & the Courts

Mystifying Amicus Brief for Some Former SGs in Title VII SOGI Cases

As you’d expect, the briefs and amicus briefs on behalf of the employees in the Title VII SOGI cases in the Supreme Court are replete with pseudo-textualist claims that Title VII’s ban on employment practices that “discriminate … because of … sex” prohibits discrimination on the basis of sexual orientation or gender identity. The Department of Justice’s briefs comprehensively answer these claims. But I hope to find time to address some of the amicus briefs directly.

Let’s start with the amicus brief filed by Laurence Tribe and Joshua Matz on behalf of two former Solicitors General (Theodore B. Olson and Seth Waxman) and two former acting Solicitor Generals (Walter Dellinger and Neal Katyal).*

1. The brief’s core claim that “an employer who discriminates based on transgender status necessarily accounts for sex at every single step of his or her reasoning” rests on the assumption that any employment practice that can be applied only by identifying an employee’s sex amounts to discrimination on the basis of sex under Title VII. But that assumption is contradicted by the longstanding acceptance of sex-specific restrooms, sex-specific locker rooms and shower facilities, and dress codes (which all require taking account of an employee’s sex).

Amazingly, the brief does not even acknowledge this contradiction, much less try to explain it away.

2. Relatedly, while the brief undertakes to parse the meaning of the terms “because of,” “such individual’s,” and “sex” in Title VII, it never examines what the critical word “discriminate” means in conjunction with those other terms. It instead simply assumes, wrongly, that any distinction on the basis of sex amounts to unlawful discrimination on the basis of sex. So much for serious textualist analysis.

3. The brief wrongly asserts that the Court in Oncale v. Sundowner Offshore Services (1998) “held that Title VII forbids ‘male-on-male sexual harassment in the workplace.’” In fact, the Court held only that there is no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” In other words, male-on-male sexual harassment in the workplace does not always violate Title VII; it does so only if it also “meets the statutory requirements.”

As to what those “statutory requirements” are, the Court explained:

We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” [Quoting concurring opinion of Justice Ginsburg in Harris v. Forklift Systems (1993) (underlining added).]

Discrimination on the basis of sexual orientation or gender identity does not expose “members of one sex … to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale’s reading of Title VII thus defeats, rather than supports, the brief’s claim.

* I initially messed up on the listing of former SGs and acting SGs. For some reason, the brief is also submitted on behalf of a former associate White House counsel, Karen Dunn.

Law & the Courts

ABA Awards CA2 Nominee Menashi Highest Rating of ‘Well Qualified’

Well, let me give credit where credit is due.

It’s rare, if not unprecedented, that the ABA’s judicial-evaluations committee exceeds my expectations. But it has done so in awarding Second Circuit nominee Steven Menashi its highest rating of “well qualified.”*

As the ABA committee’s Backgrounder explains, in order to receive a “well qualified” rating, a nominee “must be at the top of the legal profession in his or her legal community; have outstanding legal ability, breadth of experience, and the highest reputation for integrity; and demonstrate the capacity for sound judicial temperament.” Given the smears that Menashi has been subjected to, I will highlight that in evaluating a nominee’s judicial temperament, the committee considers the nominee’s “freedom from bias and commitment to equal justice under the law.” Let’s hope that the ABA’s rating puts an end to the smears.

Menashi’s confirmation hearing takes place tomorrow.

* A majority of the committee rated Menashi “well qualified,” while a minority rated him “qualified.” As the committee’s letter states, “The majority rating represents the Standing Committee’s official rating.”

Law & the Courts

Justice Gorsuch’s New Book

Tomorrow is the official release date of Justice Gorsuch’s new book, A Republic, If You Can Keep It, a collection of the Justice’s articles, speeches, and opinions. I’ve bounced around the book over the past couple of weeks—I very much enjoyed the excellent piece on “Originalism and the Constitution” I just read—and highly recommend it both as an interesting account of Justice Gorsuch’s understanding of the Constitution and the judicial role and a window into the appealing character and personality of Justice Scalia’s successor.

Disclosure: The book has the same publisher (Crown Forum) and editor as the two books of Justice Scalia’s works that I’ve already co-edited—Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer—as well as of the hitherto-undisclosed third Scalia volume that is coming next.

Law & the Courts

Judicial Nominations Update

Today the Senate returns from its August recess, and is expected to promptly return to the work of confirming President Trump’s judicial nominees.

First up will be six pending district court nominees currently awaiting confirmation votes. Before the recess, Senate majority leader Mitch McConnell filed cloture motions to end debate on their nomination; confirmation votes for the six are expected soon after Senate business resumes.

Over the recess, President Trump announced the nomination of seventeen new judicial nominees, including three circuit court nominees — Steven Menashi and William Nardini to the Second Circuit, and Danielle Hunsaker to the Ninth Circuit.  (Because these nominations have not been formally received by the Senate yet, they are not reflected in the figures below.)

On Wednesday, the Senate Judiciary Committee will be holding a nominations hearing. As of this writing, the slate has not been noticed.

Here is a full update on the status of President Trump’s federal judicial nominations:

 Current and known future vacancies:  124

Courts of Appeals:  5

District/Specialty Courts*: 119

Pending nominees for current and known future vacancies: 40

Courts of Appeals: 1

District/Specialty Courts*: 39

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden 6/24/19 77 7/17/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes: 26

Courts of Appeals: 1

District/Specialty Courts: 25

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 10
  • # of pending nominees originally nominated > 300 days ago: 17

Nominees Confirmed by the Senate during the 116th Congress: 63

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts: 50

Nominees Confirmed by the Senate since Inauguration Day: 148

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts: 103

Law & the Courts

DOJ Briefs in Title VII SOGI Cases

On October 8, the Supreme Court will hear oral argument in three cases concerning the scope of Title VII’s ban on employment practices that “discriminate” on the basis of “sex.” Two consolidated cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, present the question whether Title VII prohibits discrimination on the basis of sexual orientation, and the third, R.G & G.R. Harris Funeral Homes v. EEOC, asks whether it bars discrimination on the basis of gender identity.

I’m pleased to see that the Department of Justice has filed outstanding briefs in both cases. Here is its brief on behalf of the EEOC (opposing and reversing the position the EEOC took below) in Harris Funeral Homes. And here is its amicus brief in support of the employers in Zarda and Bostock.

As you’d expect, the core argument that DOJ presents in the two briefs is the same. I am going to outline here DOJ’s argument in Harris Funeral Homes:

1. Title VII does not prohibit discrimination against transgender persons based on their transgender status.

When Title VII was enacted in 1964, the ordinary public meaning of “sex” was biological sex, not transgender status. (Brief 16-20.) Congress’s actions in the ensuing 55 years forcefully confirm that “sex” in Title VII does not encompass transgender status. (Brief 22-27.)

2. Discrimination based on transgender status does not inherently entail discrimination because of sex.

a. To discriminate against a member of a protected class means treating an individual in the class less favorably than a similarly situated individual outside the class. An employer that treats individuals differently who are not similarly situated does not discriminated based on a prohibited ground. (Brief 31-33.)

An employer that treats transgender individuals less favorably based on their transgender status does not expose members of one sex to disadvantageous treatment to which members of the other sex are not exposed. So long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. If an employer discriminates against an individual because that individual is transgender, the less favorable treatment is not because of that individual’s sex. (Brief 33-34.)

Harris Homes treated Stephens (a biological male) less favorably than male employees who dressed as males at work. But there is no evidence in the record that Harris Homes would have treated more favorably a female employee who intended to dress as a member of the opposite sex, and there is plenty of evidence to the contrary. (Brief 34-35.)

b. The court below was wrong to hold that discrimination because of transgender status necessarily entails discrimination on the basis of sex because one cannot treat a transgender person differently “without considering that employee’s biological sex.”

It is simply not the case that Title VII bars any employment practice that can be applied only by identifying an employee’s sex. Many commonplace practices that distinguish between the sexes do not violate Title VII because they account for real physiological differences between the sexes without treating either sex less favorably. Sex-specific restrooms, for example, and dress codes. [I’d add in sex-specific locker rooms in corporate gyms.] (Brief 35-38.)

[DOJ also cites with approval the Fourth Circuit’s allowance of “gender-normed” fitness standards by the FBI. I’m very doubtful that the Fourth Circuit’s opinion in Bauer v. Lynch is sound, as I think that the gender-normed fitness standards clearly treat men less favorably. But those on the Left who think that the opinion is sound and who think that Title VII prohibits discrimination based on transgender status have some additional explaining to do.]

3. Discrimination against transgender persons does not constitute sex stereotyping prohibited by Title VII.

Sex stereotyping by itself is not a Title VII violation. Price Waterhouse v. Hopkins (1989) merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex. But it did not recognize sex stereotyping as a freestanding category of Title VII liability. A plaintiff must still show that an employer treated members of one sex less favorably than similarly situated members of the opposite sex. Otherwise, countless sex-specific policies—e.g., sex-specific restrooms, or a requirement that men wear neckties—would be susceptible to challenge as predicated on sex stereotypes. (Like any other plaintiff, a transgender person may use evidence of sex stereotyping in proving discrimination on the basis of sex.) (Brief 45-50.)

Law & the Courts

This Day in Liberal Judicial Activism—September 9

(Photo Illustration: NRO)

1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Law & the Courts

This Day in Liberal Judicial Activism—September 8

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—While ten members of the American Bar Association’s judicial-evaluations committee sensibly give Supreme Court nominee Robert H. Bork the highest rating of “well qualified,” four members indulge their ideological biases and rate him “not qualified.”

The four members hide behind the cloak of anonymity, but years later they will be reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.

Law & the Courts

This Day in Liberal Judicial Activism—September 7

(Pixabay)

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly never “mentioned—or even hinted at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

Law & the Courts

New Vacancy Sets Up Eleventh Circuit Flip

Eleventh Circuit judge Stanley Marcus has announced that he will take senior status on March 2, 2020, or upon confirmation of his successor (whichever comes first). Marcus was appointed to his seat by President Clinton in 1997.

Counting active judges by the party of the appointing president is an admittedly crude and imperfect measure of the ideological makeup of a federal appellate court. (Marcus, who was appointed to the federal district court by President Reagan in 1985, was not viewed as a liberal.) With that large caveat, I’ll note that the Eleventh Circuit is currently divided 6-6 between appointees of Republican presidents and appointees of Democratic presidents. So when President Trump fills Marcus’s seat, the Eleventh Circuit will flip to a 7-5 majority of Republican appointees. At the outset of the Trump administration, it had an 8-3 Democratic majority (with one vacancy). So that’s an impressive swing.

On top of Eleventh Circuit judge Gerald Tjoflat’s decision last month to take senior status, the White House now has two Florida seats to fill on the Eleventh Circuit. Given that both Florida senators are Republicans, I’d hope that the nominations are announced fairly soon.

 

Law & the Courts

This Day in Liberal Judicial Activism—September 6

Sen. Feinstein on Capitol Hill in March (Reuters file photo: Aaron P. Bernstein)

2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.

This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.

2017—“The dogma lives loudly within you,” proclaims Senator Dianne Feinstein to Notre Dame law professor, and Seventh Circuit nominee, Amy Coney Barrett. Feinstein’s display of anti-Catholic bigotry in this comment and other questions earns widespread condemnation, including from liberals such as Princeton president Christopher Eisgruber and Harvard law professor Noah Feldman.

Law & the Courts

This Day in Liberal Judicial Activism—September 5

(Wikimedia Commons)

1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.

Law & the Courts

Another Test of the ABA’s Professed Impartiality on Judicial Nominees

The American Bar Association’s judicial-evaluations committee maintains that it “does not consider a judicial nominee’s philosophy, political affiliation or ideology” when it rates the nominee. The ABA committee’s upcoming rating of Second Circuit nominee Steven Menashi will provide an interesting test of its profession of impartiality. Let’s see if the committee performs better than it has often done in the past.

As a benchmark, have in mind that in 2010 the ABA committee gave Ninth Circuit nominee Goodwin Liu its highest rating of “well qualified.” It did so even though its own published criteria stated (as they continue to state) that “a nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law” and that “substantial courtroom and trial experience as a lawyer or trial judge is important.”

When the ABA rated him, Liu hadn’t yet been out of law school for twelve years. As Liu was then, Menashi is in the midst of his twelfth year out of law school. (Liu was six months further into that twelfth year.)

When the ABA rated him, Liu had no “trial experience as a lawyer or trial judge.” His entire practice of law consisted of two years or so in appellate litigation. (He argued one small pro bono matter—a federal inmate’s appeal of the FBI’s denial of his FOIA request.) By contrast, Menashi practiced appellate law for six years. In addition, he has served for some 2-1/2 years in the public sector. As acting general counsel of the U.S. Department of Education, he provided legal advice related to all aspects of the Department’s operations and supervised a team of 110 lawyers. Since 2018, he has been associate White House counsel.

To be sure, Liu had some very impressive credentials, including a law degree from Yale, clerkships on the D.C. Circuit (Judge Tatel) and Supreme Court (Justice Ginsburg), and several years in legal academia. But ditto Menashi, who has a law degree from Stanford, clerkships on the D.C. Circuit (Judge Douglas Ginsburg) and Supreme Court (Justice Alito), and some years in legal academia.

As I stated at the time, consideration of other of the ABA’s criteria could “plausibly [have] justif[ied]” the committee in giving Liu a “qualified” rating. Having ridiculed the ABA’s rating of Liu, I am certainly not contending that Menashi’s objective qualifications ought to guarantee him a “well qualified” rating under a neutral application of the ABA’s criteria. But it would be extraordinary indeed if, after giving Liu a “well qualified” rating, the ABA committee somehow does not rate Menashi as “qualified.”

Law & the Courts

This Day in Liberal Judicial Activism—September 4

H. Lee Sarokin

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

“If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.”

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

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