Law & the Courts

This Day in Liberal Judicial Activism—March 25

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Supreme Court Justice Antonin Scalia ion Capitol Hill in 2010. (Kevin Lamarque/Reuters)

1987—So much for the express ban on employment discrimination set forth in Title VII of the Civil Rights Act of 1964. Justice Brennan’s majority opinion in Johnson v. Transportation Agency holds that a Santa Clara County agency “appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted.”

Never mind that the county’s affirmative-action program explicitly embraced the goal of racial and sex quotas (“attainment of a County work force whose composition … includes women, disabled persons and ethnic minorities in a ratio in all job categories that reflects their distribution in the Santa Clara County area work force”). And never mind that, according to the undisturbed findings of the district court, the county had never discriminated against women in employment and that Joyce’s sex was the “determining factor” in her selection.

As Justice Scalia points out in his dissent, Title VII speaks with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.” But the Supreme Court “completes the process of converting [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will, and it thus “replace[s] the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and sex in the workplace.” In sum: “A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race- and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.”

1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, later Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution. Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution. Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity. So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

Law & the Courts

This Day in Liberal Judicial Activism—March 24

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(Photo: Gary Blakeley/Dreamstime) (Kuzma/Dreamstime)

1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

Law & the Courts

This Day in Liberal Judicial Activism—March 23

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Supreme Court Justice Anthony Kennedy (Joshua Roberts/Reuters)

1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

2004—The Left is adept at what Abraham Lincoln labeled “lullaby arguments”—false claims designed to lull the listener into a sense of complacency. In testimony at a Senate hearing, law professor Cass Sunstein argues that a constitutional amendment on marriage is unnecessary because the prospect that the Supreme Court would invent a constitutional right to same-sex marriage is utterly fanciful:

It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench.

Sunstein was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices in that case, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” So much for Sunstein’s claim that any concern that the Court might “hold that there is a constitutional right to same-sex marriage” was “a reckless conception of what is on the horizon” and “indefensible by reference to anything any Supreme Court Justice has said.”

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.

Law & the Courts

This Day in Liberal Judicial Activism—March 22

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TEEN CONTRACEPTION (2011): The Connecting Adolescents to Comprehensive Healthcare program provides “morning-after” pills and other contraceptive services to girls at 13 high schools in “high risk” zones. Though parents were informed of the program, it offers services without parental consent.

1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Law & the Courts

This Day in Liberal Judicial Activism—March 21

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(Alexei Novikov/Dreamstime)

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury.

The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there is no real constitutional violation here anyway.”

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.)

Law & the Courts

Senators Slam Draft Ethics Opinion on Judicial Membership in ABA vs. Federalist Society

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I’ve strongly criticized the poorly reasoned draft advisory opinion in which the Committee on Codes of Conduct of the Judicial Conference of the United States concludes that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. As I’ve explained, I take no position on whether the judicial ethics rules should be interpreted to bar judges from being members of the Federalist Society or of the ABA. My only position is that if a line is to be drawn between the two organizations, it is the ABA, not the Federalist Society, that should be on the forbidden side of the line.

I’m pleased to highlight an excellent letter that 29 Republican senators—including Senate majority leader Mitch McConnell and nine of the eleven Republican members of the Judiciary Committee—have sent to the chairman of the Committee on Codes of Conduct. Some excerpts (citations omitted):

[The Committee’s] conclusions are based on an extraordinarily distorted understanding of both organizations’ missions and advocacy activities….

The Federalist Society “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” These principles do not flow from any ideological, political, or factional commitment, but rather from the basic underpinnings of the Constitution and the rule of law. In fact, if any federal judges do not adhere to these principles, they are in violation of their oaths of office—plain and simple.

The Federalist Society pursues these principles by “sponsor[ing] fair, serious, and open debate,” which is its “main purpose.” Forums hosted by the Federalist Society frequently feature voices from across the ideological spectrum…. Most importantly, the Federalist Society emphatically does “not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. The organization does not take positions on legislation and does not submit amicus briefs….

The Federalist Society’s neutrality and openness stands in stark contrast to the zealous ideological advocacy of the American Bar Association…. There is no “reasonabl[e]” way to view the ABA’s advocacy as anything other than “liberal or progressive” when it supports denying individuals their constitutional right to keep and bear arms, forcing Christian organizations on campuses to accept members that reject their faith, subjugating states to the judgments of the World Court to overturn capital sentences, recognizing same-sex marriage through judicial fiat instead of legislative debate, banning state and local law enforcement from assisting in enforcing federal immigration law, and removing restrictions on abortion…. [T]he ABA’s leftism has come to infect the organization’s purportedly “neutral” activities, from using its monopoly on law school accreditation to mandate hiring and admissions quotas to trying to muzzle lawyers with a speech code under the guise of model ethics rules.

There is perhaps no better example of the subjugation of the ABA’s ostensibly neutral functions to this left-wing agenda than its treatment of judicial nominees. Study after study over the past two decades has documented what one expert described as “systematic bias by the ABA in its ratings of Republican nominees.” Sadly, the ideological infection of the ABA’s rating process is not limited to just bias in ratings, but has also escalated into outright character assassination attempts against some nominees, especially those with socially conservative track records.

The ABA’s [recent] treatment of Judge Grasz, Judge VanDyke, and other of your colleagues has been disingenuous, unfair, and shameful. It can hardly be dismissed as merely a minor feature of the organization. Rather, this record fatally undermines any notion that the ABA is capable of placing the core principles that undergird our legal system ahead of zealous advocacy for its left-wing agenda.

It is disappointing that sitting federal judges would want to lend their credibility to an organization that launches such vicious, spurious attacks on their colleagues. Perhaps most importantly, it is deeply unfair to organizations that are actually “devoted to the law, the legal system, or the administration of justice” such as the Federalist Society to deign to label the ABA to be such an organization when it so evidently does not meet such a standard.

Senator Sasse’s office has also provided me this statement from him:

It’s wrong to target the Federalist Society. We’re talking about a debating society of law students and lawyers with diverse opinions who take the Constitution and the rule of law seriously — this is stuff every American ought to be able to agree on. Baseless, behind-the-scenes attacks against the Federalist Society and its members are the product of liberal smear campaign that will erode confidence in an independent and fair Judiciary. The Judicial Conference should reject this draft opinion.

Law & the Courts

This Day in Liberal Judicial Activism—March 20

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(Carlos Jasso/Reuters)

1981—By a vote of 4 to 2, the California supreme court rules (in Committee to Defend Reproductive Rights v. Myers) that the state constitution forbids California from placing restrictions on the Medicaid funding of abortions when it fully funds the childbirth expenses of indigent women.

Law & the Courts

This Day in Liberal Judicial Activism—March 19

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The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

Law & the Courts

This Day in Liberal Judicial Activism—March 18

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(Pixabay)

1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.

Law & the Courts

This Day in Liberal Judicial Activism—March 17

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On March 17 each year the whole world turns a little bit greener.

1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!

Law & the Courts

This Day in Liberal Judicial Activism—March 15

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Supreme Court Justice Ruth Bader Ginsburg walks in Washington, D.C., January 12, 2016. (Joshua Roberts/REUTERS)

1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

2016—No plaintiff? So what?

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.”

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”

Law & the Courts

This Day in Liberal Judicial Activism—March 14

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Self-portrait of Elton Simpson (ABC News)

2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism:

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas.

Law & the Courts

This Day in Liberal Judicial Activism—March 13

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U.S. Supreme Court in Washington, D.C. (Jonathan Ernst/Reuters)

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violates the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

Law & the Courts

The Long Reach of the Committee on Codes of Conduct Draft Advisory Opinion

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Recently, I wrote a five-part series on the Judicial Campaign to silence the Federalist Society. Today I dive deeper into Part 3 of that series, which looked at how the Committee on Codes of Conduct draft advisory opinion would threaten judges’ involvement with the legal profession and affinity bar associations.

Supposedly key to the Committee’s reasoning that judges should not be members of the Federalist Society is the fact that it “serve[s] or promote[s] a particular constituency, cause or agenda,” as opposed to merely seeking to “benefit the legal system as a whole.” But perplexingly, the draft advisory opinion completely ignores the fact that the Federalist Society does not take positions or advocate on particular issues, nor does it lobby or litigate before any state or federal courts.

The Committee on Codes of Conduct likewise fails to recognize that the standard it sets forth would necessarily prohibit judicial membership in a host of affinity bar associations: organizations that clearly promote a “particular constituency, cause or agenda.”  In this post, I look at five affinity bar associations and examine the various forms of advocacy they each undertake.

American Association for Justice (AAJ)

Formerly known as the Association of Trial Lawyers of America, the AAJ describes itself as “an advocate for trial lawyers on a broad range of issues (emphasis added).”

AAJ regularly files amicus briefs, including on issues involving LGBT rights, medical malpractice, and consumer credit. It also has an active political action committee that made over $7.7 million in campaign contributions in 2018 alone (94 percent of that money went to Democratic candidates). The AAJ has spent $58.5 million since 2007 lobbying Congress and the federal government on a host of issues.

 Hispanic National Bar Association (HNBA)

The HBNA describes its mission in part as “advocacy on issues of importance to the 58 million people of Hispanic heritage living in the U.S. (emphasis added).”

To help advance its mission, the HNBA regularly files amicus briefs: It has litigated in support of affirmative action and in opposition to the travel ban. It has also weighed in on the issue of redistricting, arguing for Congressional apportionment on the basis of total population rather than voter population.

In addition to its litigation efforts, the HBNA regularly engages in executive and legislative advocacy. It supported passage of the Dream & Promise Act (H.R. 6, 2019), which would have extended legal status to so-called DREAMers with a path to citizenship and opposed the immigration reform legislative framework proposed by President Trump. The HBNA has also advocated for criminal justice reform and Puerto Rican debt relief. It has opposed some of President Trump’s nominees, including Jeff Sessions and Brett Kavanaugh.

National LGBT Bar Association

The National LGBT Bar Association’s mission is to promote “justice in and through the legal profession for the LGBTQ+ community in all its diversity” (emphasis added).

The National LGBT Bar regularly engages in judicial advocacy, filing amicus briefs “promot[ing] a particular constituency, cause or agenda.” In recent years, it has weighed in on the issue of transgender bathrooms, the use of state civil rights laws to override federal constitutional religious liberty protections, protections for LGBT employees under Title VII, the revocation of trademark protection for terms that could be considered offensive to racial minority groups, the inclusion of gender dysphoria as a covered condition under the Americans with Disabilities Act, and in support of the recognition of a constitutional right for same-sex marriage.

The LGBT Bar has also advocated for legislation, including banning the use of the LGBTQ+ panic defense in court and discrimination in jury selection on the basis of sexual orientation or gender identity.

National Asian Pacific American Bar Association (NAPABA)

The NAPABA describes its mission as promoting “justice, equity, and opportunity for Asian Pacific Americans.” It frequently files amicus briefs. In recent years, it has litigated against the travel ban, in support of the revocation of trademark protection for terms that could be considered offensive to racial minority groups, and in support of the legality of race-conscious admissions policies at colleges and universities.

The NAPABA has also advocated for a number of politically charged causes, including in support of affirmative action and against legislative provisions requiring race neutrality, such as California’s Proposition 209. It has adopted various resolutions regarding immigration policy issues, including on DAPA, DACA, birthright citizenship, and refugee resettlement. NAPABA has opposed legislation that would restrict voter registration, limit early voting, or require voter identification.

National Native American Bar Association (NNABA)

The NNABA describes its mission as “advancing justice for Native Americans (emphasis added).”

In recent years, the NNABA has filed amicus briefs supporting the legality of race-conscious admissions policies at universities and the revocation of trademark protection for terms that could be considered offensive to minority groups. It also filed briefs opposing the travel ban and arguing for the constitutionality of the Indian Child Welfare Act.

The NNABA also regularly weighs in on legislative and executive actions. It has advocated for legislation extending the federal adoption tax credit to tribal court adoptions and for the strengthening the adoption protections of the Indian Child Welfare Act. NNABA has also pressed for the recognition of Indigenous People’s Day instead of celebrating Columbus Day. It has taken positions on various federal judicial nominees, such as supporting Allison Eid and opposing Brett Kavanaugh.

***

To be clear, there is nothing wrong with the advocacy and litigation that bar associations engage in. The point is that these groups represent just a small sample of the many organizations that would logically fall within the reach of the draft advisory opinion.

The draft advisory opinion offers that “a judge may participate in a law-related activity if it is directed toward improving the law or the legal system itself.” This is simply not the case for AAJ, HNBA, National LGBT Bar Association, NAPABA, NNABA, and many, many others. These groups are each unabashedly “promot[ing] a particular constituency, cause or agenda,” and “utilizing the law or the legal system to achieve an underlying social, political, or civic objective.” Of course, this is not what the Federalist Society does, which is what makes the draft advisory opinion so confounding, as well as flat out wrong.

The draft advisory opinion pays lip service that it is important for judges to be civically engaged, citing Canon 4’s warning that “complete separation of a judge from extrajudicial activities is neither possible nor wise” and that a judge “is in a unique position to contribute to the law, the legal system, and the administration of justice.”

Does the Committee on Codes of Conduct recognize the implications for judicial participation in affinity bar associations, should the draft advisory opinion be adopted, and how the opinion conflicts with the goals of Canon 4? I have my doubts.

Law & the Courts

Judicial Nominations Update

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Last week, D.C. Circuit judge Thomas Griffith announced that he will retire in September, giving President Trump the opportunity to appoint a third judge to that court. Given that there are no home state senators with whom the White House will need to consult, we should expect to see the process of filling Judge Griffith’s seat move very quickly.

Senate majority leader Mitch McConnell has managed to whittle down the once-long list of pending nominees on the Senate floor to just nine, and the confirmation of the 200th Trump judicial nominee is quickly approaching.

Later this week, the Senate Judiciary Committee will hold an executive business meeting to consider several judicial nominations, including six district and three federal claims court nominees.

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

Current and known future vacancies: 88

Courts of Appeals: 2

District/Specialty Courts*: 86

Pending nominees for current and known future vacancies: 42

Courts of Appeals: 0

District/Specialty Courts*: 42

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
None

 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: 9

Courts of Appeals: 0

District/Specialty Courts*: 9

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 3
  • # of pending nominees originally nominated > 300 days ago: 3

Nominees Confirmed by the Senate during the 116th Congress: 114

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 93

Nominees Confirmed by the Senate since Inauguration Day: 199

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 146

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

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The Comprehensive Timeline of China’s COVID-19 Lies

On today's menu: a day-by-day, month-by-month breakdown of China's coronavirus coverup and the irreparable damage it has caused around the globe. The Timeline of a Viral Ticking Time Bomb The story of the coronavirus pandemic is still being written. But at this early date, we can see all kinds of moments ... Read More

Some Good News Going into the Weekend

It’s Friday -- although I know it’s getting harder and harder to tell these days. You deserve a respite from yesterday’s gloom. (If you’re hungry for more gloom, there’s always the most recent edition of The Editors podcast -- and thank you, dear readers, for checking on me.) Today’s newsletter ... Read More

Some Good News Going into the Weekend

It’s Friday -- although I know it’s getting harder and harder to tell these days. You deserve a respite from yesterday’s gloom. (If you’re hungry for more gloom, there’s always the most recent edition of The Editors podcast -- and thank you, dear readers, for checking on me.) Today’s newsletter ... Read More

The 41 Worst People You Meet on Twitter

Twitter, even more so than blogs, offered us the revolutionary promise of a virtual town square: You could hear from and engage with people from many walks of life, the prominent and the ordinary, in real time. You could read news as it breaks, debate the great issues of the day, and have fun. That promise ... Read More

The 41 Worst People You Meet on Twitter

Twitter, even more so than blogs, offered us the revolutionary promise of a virtual town square: You could hear from and engage with people from many walks of life, the prominent and the ordinary, in real time. You could read news as it breaks, debate the great issues of the day, and have fun. That promise ... Read More