Law & the Courts

“The Dogma Lives Loudly Within You” (Part 2)

In a letter to the Senate Judiciary Committee following the Amy Coney Barrett’s nomination hearing, Christopher Eisgruber, President of Princeton University, urged the Committee to “refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.”  A constitutional law scholar who clerked for Justice John Paul Stevens, Eisgruber argued that Article VI’s prohibition on religious tests was a “bold endorsement of religious freedom.” Eisengruber explained that “[b]ecause religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs.”

Nearly 16 months later, Senate Democrats persist in questioning nominees about their Christian faith.  At its core, the questioning reveals the anti-religious bigotry motivating the modern day Democrats.  The inescapable irony is that some of the great lions of the Democratic Party, such as John F. Kennedy and Al Smith, were once victims of the very same bigotry that their party now perpetuates.

So why are today’s Democrats so suspicious of Christians?  The unfortunate truth is that progressives no longer believe there is a place for people of genuine faith in public service. This stands in sharp contrast to the Founders, who universally recognized the role that religion plays in undergirding our civil society and freedom (although not all of the founders were men of faith themselves).

Borrowing from Alexis de Tocqueville’s observations in Democracy in America,author and intellectual Os Guinness “the golden triangle of freedom” as consisting of these three mutually reinforcing values, each fully dependent on the others: freedom, virtue, and faith.  Guinness argues that freedom requires virtue, virtue requires faith, and faith requires freedom.

James Madison illuminated the concept in his speech to the Ratifying Convention on June 20, 1788, asking:  “Is there no virtue among us?”  Assuming the answer, Madison continued, “If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government can secure liberty or happiness without virtue in the people is a chimerical idea.”

The modern Democratic Party has lost sight of the essential role that faith plays in guaranteeing virtue and thus our continuing freedom.  Rather than safeguarding the Constitution’s robust protections for religious liberty, Senate Democrats are unabashedly grilling nominees about their church memberships and affiliations.

Their message?  If we don’t like what you believe, we think you are unfit for judicial service.

Sure sounds like a religious test to me.

Link: “The Dogma Lives Loudly Within You” (Part 1)

Law & the Courts

This Day in Liberal Judicial Activism—January 4

California District Court Judge Vaughn Walker

2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

Law & the Courts

‘What Nonsense!’—Ninth Circuit on Invocations at School-Board Meetings

“What nonsense!”—perhaps an apt motto for the Ninth Circuit generally—is part of Judge Diarmuid O’Scannlain’s withering critique of the panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concludes that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore do not apply. Instead, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”

O’Scannlain issued his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion was joined by seven other judges, including Clinton appointee Johnnie Rawlinson.

I was surprised to learn from the first footnote in O’Scannlain’s opinion that Ninth Circuit judges in senior status are able to take part in discussions of en banc proceedings. (They can’t cast votes on en banc petitions; that’s why O’Scannlain’s opinion is “respecting the denial of rehearing en banc,” rather than a dissent from the denial.) I ask informed readers to let me know whether any of the other circuit courts allow senior judges to take part, as they see fit, in en banc discussions. (I have in mind that some courts might allow senior judges to take part in en banc proceedings on cases in which they were on the original panel.)

I also found it curious that the 36-page panel opinion was issued “per curiam” rather than as the handiwork of one of the three members of the panel. I half wonder whether Judge Kim McLane Wardlaw, having earned a remarkable record of summary reversals by the Supreme Court (several in the face of O’Scannlain dissents), decided to disguise her role.

Law & the Courts

Supreme Court to Decide Whether to Review Indiana Abortion Ruling

Tomorrow the Supreme Court is scheduled to decide whether to grant review of a Seventh Circuit ruling that blocks the state of Indiana from enforcing provisions of a recently enacted law regulating abortion. Indiana’s certiorari petition presents two questions: (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.

The full Seventh Circuit divided evenly on whether to grant en banc review on the first question. In a strong dissent from the court’s denial of rehearing en banc, Judge Frank Easterbrook, joined by Judges Diane Sykes, Amy Coney Barrett, and Michael Brennan, disputed the panel’s rulings on both questions. (Easterbrook’s dissent begins on page 5 here.)

With respect to the disposal-of-fetal-remains provision: Easterbrook contested the panel’s conclusion that the validity of the provision turned on whether human fetuses are “persons” under the Fourteenth Amendment. Rather, as he starkly put it, the panel “held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” Further, in so doing, it created a conflict with an Eighth Circuit ruling.

On the second provision, which he aptly labeled the “eugenics statute,” Easterbrook explained that “None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children,” and he faulted the panel for “imput[ing] to the Justices decisions they have not made about problems they have not faced.”

In a powerful Public Discourse essay, Notre Dame law professor Carter Snead and his Center for Ethics and Culture colleague Mary O’Callaghan urge the Court to “confirm[] the modest proposition that the Fourteenth Amendment of the US Constitution—originally aimed at advancing the cause of equality among people—does not forbid states from acting to prevent invidious and lethal forms of discrimination against the disabled.” As Snead and O’Callaghan explain, the Court may so rule “without revisiting the highly controversial precedents of Roe v. Wade and Planned Parenthood v. Casey.” The Seventh Circuit’s ruling “leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a ‘moral duty’ to eradicate them, that we are ‘better off’ without them, and that their value can be calculated in dollars and cents.” Snead and O’Callaghan conclude:

We have been here before, and history has taught us in the bleakest of terms the chaos and moral depravity that flow from this way of thinking. The stakes associated with the Court’s silence are too high, and it therefore has a duty to correct this error with all haste.

Law & the Courts

“The Dogma Lives Loudly Within You” (Part 1)

The Senate Democrats are attacking Christians again.

During Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee in September 2017, Senator Dianne Feinstein pointedly told the then-nominee, “the dogma lives loudly with in you, and that’s a concern.”  The “dogma” to which she referred was Barrett’s Catholic faith, and Feinstein’s not-so-subtle suggestion was that an observant Catholic could not also be a fair and impartial judge.

While this is certainly the most notorious instance of a nominee being grilled about his or her Christian faith, it is far from the only one, as Senate Democrats have continually engaged in questioning that test the limits of the Constitution’s Article VI prohibition on “religious tests” for holding government office.

Their latest target is Brian Buescher, a federal district court nominee from Nebraska.  Following Mr. Buescher’s November 2018 nomination hearing, Senators Mazie Hirono and Kamala Harris submitted questions for the record interrogating Buescher about his affiliation with the Knights of Columbus—a fraternal service organization of the Catholic Church that claims two million members worldwide.

The Knights are an arm of the Church and one of the world’s great charities, having made billions of dollars in charitable contributions and given millions of hours of volunteer service. Their mission includes aid to the poor, support for people with physical and developmental disabilities, and assistance to victims of natural disasters.

Mr. Buescher joins a growing list of Trump nominees who have been quizzed about their Christian faith:

  • In November 2018, Senator Feinstein submitted written questions for the record to Paul Matey (Third Circuit) asking about his affiliation with the Knights of Columbus.
  • In October 2018, Senators Feinstein, Leahy, Blumenthal, Whitehouse and Harris submitted written questions for the record to Allison Jones Rushing (Fourth Circuit) asking about her involvement with Alliance Defending Freedom, a Christian nonprofit organization “that advocates for the right of people to freely live out their faith.”
  • In May 2018, Senator Kamala Harris submitted written questions for the record to Peter Phipps (W.D.P.A.) asking about his affiliation with the Knights of Columbus.
  • In March 2018, Senator Feinstein submitted written questions for the record to Michael Scudder (Seventh Circuit) noting his membership in the St. John the Cross Parish and asking about his involvement with the parish’s efforts to establish a residential crisis pregnancy center as cited in a parish bulletin.
  • In June 2017, Senator Whitehouse (D-RI) submitted written questions for the record to Trevor McFadden (D.D.C.) about his personal views on issues of same-sex marriage and abortion in light of his church membership.(My NRO colleague, Ramesh Ponnuru, detailed that line of inquiry here.)

And the church bashing has not been exclusive to the Senate Judiciary Committee: during a nomination hearing before the Senate Budget Committee in 2017, Senator Bernie Sanders accused Russell Vought—a Christian and President Trump’s nominee for Deputy Director of The White House Office of Management and Budget—of being an “Islamaphobic” on account of his religious views.

These inquiries directed to Christians violate the spirit if not the letter of Article VI, which provides that “no religious test shall ever be required as a qualification to any office under the United States.”

The second post in this series will be published tomorrow.

*A prior version of this post erroneously attributed to Senator Whitehouse questions to the record submitted to Peter Phipps.  Those questions were submitted by Senator Harris. 

Law & the Courts

Judicial Appointments in 2019: Four Big Questions

1. Will another Supreme Court vacancy arise?

I would put the chances of a voluntary retirement in 2019 at near zero. But as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.

If a vacancy does arise, the Republican margin of 53 to 47 in the Senate would give President Trump plenty of leeway to get an outstanding nominee confirmed.

2. How smoothly will key new personnel in the White House and Senate step into their roles?

Over the past two years, White House counsel Don McGahn had a huge role in advising President Trump which judicial candidates to nominate, and Senate Judiciary Committee chairman Chuck Grassley shepherded the nominees through the committee process. McGahn and Grassley both built outstanding teams of lawyers to assist them.

Pat Cipollone has now replaced McGahn as White House counsel, and Lindsey Graham is the new chairman of the Judiciary Committee. Both are quickly building their own teams of lawyers, but it will be a huge challenge for them to hit the ground running. With all the demands that House Democrats will be making of the White House, Cipollone will have the additional challenge of ensuring that judicial nominations receive the attention they deserve.

3. Will many new vacancies open up on the federal appellate courts?

Once they are renominated, there are seven federal appellate nominations that should promptly be reported out of committee, and another five on which hearings should be held very soon. But beyond those twelve nominations, there are currently only three other federal appellate vacancies.

Whether many other vacancies arise soon depends heavily on how many of the 27 or so pension-eligible Republican appointees decide to take senior status (or retire altogether).

4. Will the Senate ensure timely floor votes on federal district nominees?

In the face of Democrats’ time-consuming insistence on cloture votes on nearly all judicial nominees, Senate majority leader Mitch McConnell has wisely given priority to appellate nominees over district nominees. As a result, there were some thirty district nominees long languishing on the Senate floor at the end of 2018.

To repeat myself from earlier today (point 3 here): One way, and probably the only way, to break the blockage is to reduce the period of post-cloture debate on district-court nominees from thirty hours to two hours.

Law & the Courts

Last Year in Judicial Appointments

In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2018. Let’s revisit them:

1. “Will a Supreme Court vacancy arise?”

I’m happy to stand by what I wrote:

Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.…

If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.

2. “How expeditiously will Senate Judiciary Committee chairman Chuck Grassley apply his newly clarified blue-slip policy?”

As I wrote back then:

In November [2017], Grassley clarified that he will not treat a negative blue slip as a veto but will instead have the blue-slip process encourage consultation between the White House and home-state senators. If that consultation occurs, Grassley says that he “won’t allow senators to block nominees for political or ideological reasons.”

Grassley added that he was “less likely to proceed on a district court nominee who does not have two positive blue slips from home-senators” than on an appellate nominee. Since “circuit courts cover multiple states,” there is “less reason to defer to the views of a single state’s senator for such nominees.”

Grassley’s practice in 2018 indeed reflected a sharp divide between appellate and district nominees. By my quick count, there were seven appellate nominees without blue-slip approval who had committee hearings, versus zero district nominees. As this letter illustrates, in moving on a nominee who hadn’t obtained blue-slip approval, Grassley documented in detail the extensive consultation between the White House and home-state senators.

3. “Will Senate majority leader Mitch McConnell find a way to break the Democrats’ blockage of floor votes on judicial nominees?”

Alas, the answer to this question is clearly no. At year-end 2017, the Senate’s executive calendar had over 100 nominations—executive and judicial—awaiting a floor vote. At year-end 2018, the total had risen to around 180, including some 30 district-court nominations. About half of those district-court nominations arrived on the Senate floor between January and July of 2018, with the other half all arriving by October 11.

One way to break the blockage would be to reduce the hours of post-cloture debate on district-court nominees from thirty to two. That’s what then-majority leader Harry Reid did, with strong Republican support, in January 2013 for the 113th Congress. (The same resolution reduced the hours of post-cloture debate on most executive-branch nominees from thirty to eight.) Majority leader McConnell can’t count on any Democratic support now, so he would have to use the same simple majority power that Reid used in November 2013 to abolish the filibuster for lower-court and executive-branch nominees.

4. “Will Republicans retain control of the Senate after the November 2018 elections?”

The “yes” answer from November means that President Trump will have at least two more years, on top of his first two, to work to achieve a genuine transformation of the American judiciary.

In a separate post, I will address the big questions that will determine how much progress is made on this front in 2019.

Law & the Courts

This Day in Liberal Judicial Activism—January 1

2019—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.

I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.

Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.

Law & the Courts

This Day in Liberal Judicial Activism—December 31

California District Court Judge Vaughn Walker

2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days.

Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

Law & the Courts

This Day in Liberal Judicial Activism—December 30

Judge Stephen Reinhardt

2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.

In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)

Law & the Courts

This Day in Liberal Judicial Activism—December 29

1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.

2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:

Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.

2017—You might have thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of judicial activism. But in a divided panel decision in Hernandez v. Chappell, Judge Stephen Reinhardt adds Pregerson to his opinion to create a majority ruling that vacates, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy.

Law & the Courts

This Day in Liberal Judicial Activism—December 28

(Getty Images)

2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

Law & the Courts

This Day in Liberal Judicial Activism—December 27


1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”

Law & the Courts

Democrats Continue to Obstruct Trump’s Judicial Nominations

President Donald Trump clasps his hands in the Oval Office in Washington, D.C., December 25, 2018. (James Lawler Duggan/REUTERS )

Breaking records is not always a good thing. When the 115th Congress adjourns, 69 nominations to the federal district and appeals court will expire and be returned to President Trump. That will break the record of 54 set in 1992, at the end of the 102nd Congress.

These numbers, however, do not tell the whole story. Democrats controlled the Senate in 1992. Putting a Republican president’s nominees on ice required nothing more than Judiciary Committee Chairman Joe Biden, D-Del., refusing to hold hearings. In fact, as the New York Times reported shortly before the 1992 election that Democrats did just that “to preserve the vacancies for Gov. Bill Clinton to fill if he is elected President.”

Although this is not a presidential election year and they are not the majority party, Democrats have still been able to prevent a record number of judicial nominations from being confirmed. This is especially serious since more judicial positions are vacant today than at the end of any previous two-year congress. We are in the longest period of triple-digit vacancies in more than 25 years.

Here’s one of the Democrats’ more subtle tactics. The Senate must end debate, or invoke cloture, on a nomination before it can vote on confirmation. If senators will not cooperate to end debate informally, Senate Rule 22 provides for a time-consuming roll-call vote for cloture, followed by as much as 30 hours of debate.

In the past, very little of that post-cloture debate time was used since the final outcome was obvious. Over the five decades before Trump took office, confirmation followed cloture by only a few hours nearly 50 percent of the time. Even during the Obama administration, when the process was said to be so difficult, cloture and confirmation occurred on the same day about 45 percent of the time.

That outcome has dropped to 27 percent under Trump. And this is just one obstruction tactic Senate Democrats have deployed to make the confirmation process as cumbersome as possible.

Because of these tactics, more than half of the current judicial vacancies have gone unfilled for so long that the Judicial Conference, the policy-making body of the federal judiciary, has designated these open seats as “judicial emergencies.” These positions have been open an average of 894 days, and the judges on those courts have an average caseload of more than 500 cases apiece.

Democrats and their left-wing allies are no doubt proud of this achievement, which is significantly more serious than what Democrats condemned just a few years ago. But obstruction-for-partisan-sport is not a good thing.

Law & the Courts

This Day in Liberal Judicial Activism—December 25


1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

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